The document summarizes several topics related to maritime law, finance law, foreign direct investment law, and employment law in China:
1) It outlines the current authority and procedures for arresting ships in China according to the Maritime Procedure Law, including what claims allow for arrest, competent courts, ability to arrest sister ships, security requirements, and application process.
2) It discusses conflicts between laws regarding share pledges of foreign-invested enterprises and efforts by the Supreme Court to address this issue.
3) New measures allow foreign investors to become partners in partnerships established in China while tightening control over foreign companies' representative offices.
4) Guidance is provided on properly establishing an enforceable
The document discusses several topics in maritime, finance, corporate, employment law in China. For maritime law, it discusses that while the Maritime Code allows builders/repairers to place liens on vessels, the Property Law expanded this to allow other parties like port operators to also place liens. For finance, it notes that Chinese bankruptcy law now allows insolvency petitions against state-backed enterprises. For corporate law, it discusses tightened tax rules for non-resident enterprises transferring equity in Chinese companies. And for employment, it analyzes a Guangzhou court guidance that clarified but also conflicted with some Labor Contract Law provisions.
This document is an investment agreement between the Republic of Serbia, Etihad Airways, and JAT Airways regarding Etihad's proposed investment of $100 million in JAT Airways. Key points include:
- Etihad will provide $100 million in funding to JAT Airways through a combination of equity subscription and a convertible loan.
- The agreement outlines conditions that must be satisfied prior to closing, including obtaining necessary regulatory approvals.
- It includes warranties from each party and provisions around confidentiality, termination, dispute resolution and other standard legal terms for an investment agreement.
- Schedules provide additional details on the transaction structure, conditions precedent, warranties and other
This document summarizes recent developments in Chinese shipping law and finance:
1) China issued interim measures to clarify procedures for registering mortgages on ships under construction, aiming to boost financing for shipbuilders. Local rules were inconsistent before this unification.
2) The NEWBUILDCON shipbuilding contract form from BIMCO faces resistance from Chinese builders who see it as increasing risks and costs. China is developing its own standard form.
3) Current Chinese rules restrict PRC entities from providing security for non-PRC parent/sister affiliates unless the lender is a PRC entity with equity in the borrower. Upcoming rule changes may loosen these restrictions but full liberalization is not expected soon.
Foreign investment in Indian limited liability partnerships is allowed in sectors that permit 100% foreign direct investment under the automatic route. Such investment requires prior government or Foreign Investment Promotion Board approval. Eligible investors are foreign residents or entities incorporated outside India, excluding citizens of Pakistan and Bangladesh. The investment must be equal to or greater than the fair market valuation of the LLP capital or profits, as determined by a chartered accountant. Remittances can only be made in cash through banking channels, and investments must be reported to the Reserve Bank within specified timelines. Downstream investments by LLPs are not permitted.
Securites and Exchange Commission of Pakistanfinancedude
The document outlines rules established by the Securities and Exchange Commission of Pakistan regarding asset-backed securitization. It defines key terms like special purpose vehicle, originator, and securitization. It establishes rules for SPVs regarding registration requirements, conditions of operation, obligations for transparency, and independence from originators. The Commission is granted powers to approve advertisements, vary approvals, and cancel registrations of non-compliant SPVs. Guidelines may also be issued by the Commission to govern securitization business activities.
Presentation borrowing and lending-ca 2013Nalin Ganatra
This document provides a summary of key provisions relating to borrowing and lending under the Companies Act 2013. It discusses restrictions on borrowing such as limits on borrowing from related parties and restrictions on lending such as limits on loans to directors and others. It also summarizes new concepts like 'one person company', 'arm's length transactions', and duties of directors. Procedures for compliance with existing deposit rules and exemptions are also outlined.
The document summarizes key changes made by the Reserve Bank of India to foreign exchange regulations relating to overseas direct investments by Indian parties. The changes liberalize rules around the creation of charges on shares and assets of joint ventures, wholly owned subsidiaries, and step-down subsidiaries. Specifically, the changes allow for the automatic routing of creating charges in favor of domestic or overseas lenders on shares and assets at any level of subsidiaries, extend this to group companies, and allow charges on domestic assets in favor of overseas lenders and overseas assets in favor of domestic lenders. The changes aim to provide more flexibility to Indian parties in availing foreign funding.
The Reserve Bank of India liberalized external commercial borrowing guidelines relating to the creation of charges. Lenders can now allow creation of charges on immovable assets, movable assets, financial securities, and corporate or personal guarantees in favor of overseas lenders. Several conditions apply to the creation of these different types of charges. Charges on immovable assets must comply with foreign exchange regulations and the property can only be sold to an Indian resident if invoked. For movable assets, the lender's claim is restricted to the outstanding ECB amount and assets can be removed from India. Financial securities like share pledges are allowed subject to FDI and FII rules. Corporate guarantees require board approval and personal guarantees require an individual's request.
The document discusses several topics in maritime, finance, corporate, employment law in China. For maritime law, it discusses that while the Maritime Code allows builders/repairers to place liens on vessels, the Property Law expanded this to allow other parties like port operators to also place liens. For finance, it notes that Chinese bankruptcy law now allows insolvency petitions against state-backed enterprises. For corporate law, it discusses tightened tax rules for non-resident enterprises transferring equity in Chinese companies. And for employment, it analyzes a Guangzhou court guidance that clarified but also conflicted with some Labor Contract Law provisions.
This document is an investment agreement between the Republic of Serbia, Etihad Airways, and JAT Airways regarding Etihad's proposed investment of $100 million in JAT Airways. Key points include:
- Etihad will provide $100 million in funding to JAT Airways through a combination of equity subscription and a convertible loan.
- The agreement outlines conditions that must be satisfied prior to closing, including obtaining necessary regulatory approvals.
- It includes warranties from each party and provisions around confidentiality, termination, dispute resolution and other standard legal terms for an investment agreement.
- Schedules provide additional details on the transaction structure, conditions precedent, warranties and other
This document summarizes recent developments in Chinese shipping law and finance:
1) China issued interim measures to clarify procedures for registering mortgages on ships under construction, aiming to boost financing for shipbuilders. Local rules were inconsistent before this unification.
2) The NEWBUILDCON shipbuilding contract form from BIMCO faces resistance from Chinese builders who see it as increasing risks and costs. China is developing its own standard form.
3) Current Chinese rules restrict PRC entities from providing security for non-PRC parent/sister affiliates unless the lender is a PRC entity with equity in the borrower. Upcoming rule changes may loosen these restrictions but full liberalization is not expected soon.
Foreign investment in Indian limited liability partnerships is allowed in sectors that permit 100% foreign direct investment under the automatic route. Such investment requires prior government or Foreign Investment Promotion Board approval. Eligible investors are foreign residents or entities incorporated outside India, excluding citizens of Pakistan and Bangladesh. The investment must be equal to or greater than the fair market valuation of the LLP capital or profits, as determined by a chartered accountant. Remittances can only be made in cash through banking channels, and investments must be reported to the Reserve Bank within specified timelines. Downstream investments by LLPs are not permitted.
Securites and Exchange Commission of Pakistanfinancedude
The document outlines rules established by the Securities and Exchange Commission of Pakistan regarding asset-backed securitization. It defines key terms like special purpose vehicle, originator, and securitization. It establishes rules for SPVs regarding registration requirements, conditions of operation, obligations for transparency, and independence from originators. The Commission is granted powers to approve advertisements, vary approvals, and cancel registrations of non-compliant SPVs. Guidelines may also be issued by the Commission to govern securitization business activities.
Presentation borrowing and lending-ca 2013Nalin Ganatra
This document provides a summary of key provisions relating to borrowing and lending under the Companies Act 2013. It discusses restrictions on borrowing such as limits on borrowing from related parties and restrictions on lending such as limits on loans to directors and others. It also summarizes new concepts like 'one person company', 'arm's length transactions', and duties of directors. Procedures for compliance with existing deposit rules and exemptions are also outlined.
The document summarizes key changes made by the Reserve Bank of India to foreign exchange regulations relating to overseas direct investments by Indian parties. The changes liberalize rules around the creation of charges on shares and assets of joint ventures, wholly owned subsidiaries, and step-down subsidiaries. Specifically, the changes allow for the automatic routing of creating charges in favor of domestic or overseas lenders on shares and assets at any level of subsidiaries, extend this to group companies, and allow charges on domestic assets in favor of overseas lenders and overseas assets in favor of domestic lenders. The changes aim to provide more flexibility to Indian parties in availing foreign funding.
The Reserve Bank of India liberalized external commercial borrowing guidelines relating to the creation of charges. Lenders can now allow creation of charges on immovable assets, movable assets, financial securities, and corporate or personal guarantees in favor of overseas lenders. Several conditions apply to the creation of these different types of charges. Charges on immovable assets must comply with foreign exchange regulations and the property can only be sold to an Indian resident if invoked. For movable assets, the lender's claim is restricted to the outstanding ECB amount and assets can be removed from India. Financial securities like share pledges are allowed subject to FDI and FII rules. Corporate guarantees require board approval and personal guarantees require an individual's request.
The document summarizes changes to foreign portfolio investment regulations in India. Key points include:
- A new "Foreign Portfolio Investment" scheme will replace the existing FII and QFI frameworks.
- Registered Foreign Portfolio Investors will be allowed to purchase shares, debt and engage in derivatives trading, subject to certain limits.
- RFPIs will be permitted to open special bank accounts to facilitate investment and can repatriate proceeds and invest in government bonds and corporate debt.
- Existing FIIs and QFIs will be deemed RFPIs for a transition period to allow for continued investment under the new rules.
The document is a regulatory update from the Confederation of Indian Industry (CII) providing information on domestic and global regulatory changes. It includes summaries of updates from the Securities and Exchange Board of India (SEBI) regarding non-compliance by listed companies, permitting certain clauses in shareholder agreements, regulations for listing small and medium enterprises on an institutional trading platform, and streamlining investor grievance redressal. It also provides summaries of draft rules released by the Ministry of Corporate Affairs on deposits, the Serious Fraud Investigation Office, and other matters. The update covers changes between September-October 2013.
The document provides a summary of recent open offers in the market. It lists details of 6 open offers such as the target company, acquirer, number of shares offered to be acquired, offer price and reason for the open offer. It also lists the concerned parties like merchant bankers and registrars for each open offer. The open offers are made to comply with regulations 10, 11, and 12 of SEBI Takeover Code for substantial acquisition of shares and change in control of listed companies.
SEBI - Clarification on clubbing of investment limits of foreign portfolio in...Venkatesh Prabhu
Clubbing of investment limit for FPIs will be on the basis of common ownership of more than 50% or based on common control. However, clubbing of investment limit of FPIs having common control shall not be done in case of (a) FPIs which are appropriately regulated public retail funds or (b) FPIs which are public retail funds majority owned by appropriately regulated public retail funds on look through basis or (c) FPIs which are public retail funds and investment managers (IMs) of such FPIs are appropriately regulated.
The meeting reviewed the progress of investigations into the NSEL payment crisis and legal challenges. Several court rulings impacted the cases. Agencies were advised to gather evidence of the involvement of NSEL and FTIL management in the scam and defend the cases. Investigating agencies were asked to share information with the Competent Authority to strengthen the legal defense. The meeting discussed implications of the court rulings and next steps for various agencies.
A Monthly Newsletter by Takeover Team of Corporate Professionals.
Highlights of this edition:-
SAT order in the matter of Mr. Hemant Kothari, Mr. Rajesh Kothari, Mr. Dharmendra Kothari, Mrs. Ichraj Devi Kothari and Mrs. Sunita Kothari
SAT order in the matter ofMr. Vilas Valunji, Mr. Partha Debnath,
Mr. Janardhan Shriniwas Purandare and Mr. V. A. Norhi
Consent Order in the matter of M/s. Count N Denier (India) Limited
Consent Order in the matter of M/s. Macor Packaging Limited
Exemption Order in the matter of M/s. Sarla Performance Limited
Adjudicating Officer/WTM Orders
Regular Section- Automatic Exemption from Open Offer
DISQUALIFIED DIRECTORS ANTICIPATE RELIEF FROM BOMBAY HCDishaShah147
1. The Bombay High Court has tagged all pending writ petitions regarding director disqualifications and scheduled a hearing for them on July 10, 2019.
2. In 2016, the Indian government's demonetization initiative led to the discovery of over 300,000 shell companies. As a result, the Ministry of Corporate Affairs struck over 2.17 lakh companies from the register and disqualified over 3.19 lakh individuals from directorships for failing to comply with regulations.
3. Directors can be disqualified under section 164 of the Companies Act for reasons like a company not filing financial statements or annual returns for three continuous years. Filing a writ petition with the high court or reviving the company through the
Securitisation and reconstruction of financial assets and enforcement of secu...ACS Shalu Saraf
The SARFAESI Act enables secured creditors like banks and financial institutions to enforce their security without court intervention. It allows creditors to take possession of secured assets, sell them, or assign rights over them to recover loans in case of default. The Act established mechanisms for asset reconstruction companies to acquire financial assets from banks and issue security receipts to investors. It defines terms like borrower, financial asset, and non-performing asset. The constitutional validity of the Act was upheld by the Supreme Court. Methods of recovery include securitization, asset reconstruction, and direct enforcement of security. Amendments allowed debt to equity conversion and banks to purchase auctioned properties under certain conditions.
This document discusses different types of securities used in Oman, including pledge, assignment, and guarantee. It explains that a pledge requires transferring possession of the collateral to the pledgee and involves shares, stocks, and movable assets. An assignment does not qualify as true security under Omani law but can be created by contract, requiring notice to the debtor. A guarantee legally obligates a third party to fulfill another's obligations if they default. The document provides details on perfecting and enforcing each type of security.
This document discusses different types of securities used in Oman, including pledges, assignments, and guarantees. It explains that a pledge requires transferring possession of the collateral to the pledgee and executing a legal instrument. An assignment does not have to be registered, but the assignor must notify the debtor and obtain acknowledgment. A guarantee requires consent from all company members or a shareholder resolution. To enforce any of these securities, a claim must be filed in primary court along with supporting documents.
The document provides summaries of orders from the Securities Appellate Tribunal and Adjudicating Officer related to takeover regulations.
1) The SAT rejected an exemption application for a preferential allotment as it was premature since the warrants had not yet been converted to shares carrying voting rights.
2) The Adjudicating Officer held that where no reply is received to a show cause notice, it can be assumed the charges are admitted.
3) The Adjudicating Officer found a change in control requiring an open offer where new directors appointed were acting in concert and taking part in management decisions.
This document provides a summary of recent updates, open offers, and regulatory changes from the January issue of a publication called "Insight".
1) It summarizes an order from the Takeover Panel regarding an application from Kothari Fermentation and Biochem Limited seeking exemption from open offer requirements. The Panel disposed of the application since the company's revival package was still before the BIFR.
2) It provides an interpretive circular from SEBI clarifying the scope of regulation 3(1)(ia) exemption for transfers of shares from venture capital funds to venture capital undertaking promoters.
3) It summarizes a SEBI order imposing a penalty of Rs. 25,000 on IQMS Software Limited
This document provides a summary of recent updates related to takeover regulations in India. It discusses two key court cases:
1) SEBI v M/s. Wealth Sea Pte. Ltd.: The court ruled that an indirect acquisition of shares in Indian companies through acquiring another company triggers the requirement to make an open offer under takeover regulations.
2) SEBI v M/s. Meghraj SP Corporate Finance: The court imposed a minor penalty of censure on a merchant banker for failing to ensure compliance with delisting guidelines during an acquisition.
It also provides brief details of four recent open offers made in accordance with takeover regulations and highlights the difference between Regulations 7(1) and 7
- There are no restrictions on the percentage of royalty payments for use of technology or trademarks under FEMA. Royalty payments are considered current account transactions.
- There are no restrictions on payment of commissions, except for commissions over USD 25,000 or 5% of inward remittance paid to agents abroad for sale of residential/commercial property in India.
- Payment for employee stock ownership plans (ESOPs) are considered capital account transactions governed by FEMA regulations.
- Under the Liberalized Remittance Scheme, residents can provide loans in foreign currency to non-resident Indian relatives.
- Profits from sale of property or shares by non-resident Indians are considered capital account transactions as the
Country Comparative Legal Guides to Insurance & Reinsurance, Ireland 2017Matheson Law Firm
This country-specific Q&A gives a pragmatic overview of the law and practice of insurance & reinsurance law in Ireland. It addresses topics such as contract regulation, licensing, penalties, policyholder protection, alternative dispute resolution as well as personal insight and opinion as to the future of the insurance market over the next five years.
This document is the Depositories Act of 1996 which establishes a legal framework for regulation of depositories in India. Some key points:
- It defines important terms related to depositories like depository, participant, beneficial owner, etc.
- It provides for regulation and oversight of depositories by the Securities and Exchange Board of India (SEBI). Depositories must be registered and obtain a certificate to operate.
- It specifies the rights and obligations of depositories, participants, issuers and beneficial owners when dealing with securities held in depositories. Securities are to be in dematerialized fungible form.
- Depositories must maintain records of beneficial owners and are responsible for indemnifying
The document summarizes various legal updates from adjudicating officer orders and SAT appeals relating to SEBI takeover regulations:
1) SAT held that acquisition of certain affirmative rights to protect investment does not constitute acquisition of control.
2) An adjudicating officer imposed a penalty for failure to disclose acquisition of shares that exceeded thresholds, even though shares were not directly transferred but blank transfer forms were received.
3) Another order imposed a penalty for incorrect disclosures and failure to disclose sale of shares by promoters that reduced their holdings.
4) One order examined what constitutes completion of a share purchase agreement for calculating disclosure timelines.
That Section 3(19) of IBC 2016 defines "Insolvency Professional" and Section 5(27) defines "resolution professional" to include and Resolution Professional (RP) and Interim Resolution Professional(IRP) as the case may be, "5(27) "resolution professional", for the purposes of this Part, means an insolvency professional appointed to conduct the corporate insolvency resolution process 1 [or the prepackaged insolvency resolution process, as the case may be,] and includes an Interim Resolution Professional."
The document summarizes key aspects of Italian bankruptcy law regarding "Concordato Preventivo Proceeding" (CPP), an insolvency process that allows distressed companies to negotiate debts under court supervision.
Section 168 provides an "automatic stay" that prevents creditors from enforcing or continuing claims against the debtor's assets from when the CPP petition is filed until the plan is confirmed. Section 184 makes the confirmed CPP plan binding on pre-filing creditors, though they can still pursue jointly liable entities or guarantors. The document distinguishes between pre-filing and post-filing claims and how they are treated under the CPP.
The document provides an overview of Debt Recovery Tribunals (DRTs) in India. Key points:
- DRTs were constituted under the Recovery of Debts Due to Banks and Financial Institutions Act to allow for faster recovery of debts compared to civil courts.
- DRTs have jurisdiction over cases where the debt owed is over Rs. 10 lakhs. They are aimed to settle cases within 180 days.
- DRTs are headed by a Presiding Officer who must be qualified as a district judge. Recovery Officers execute orders to recover debts.
- Original Applications are filed with the DRT to recover debts, along with documents as proof. Interim orders can restrain sale of assets until the
These slides will give overview of the Debt Recovery Tribunal and its Working of the Tribunal. Further it will help in understanding the requirements for filing an application under the Act.
These Slides will help in understanding the procedure of Debt Recovery Tribunal briefly along with the requirement for filing an application before the Tribunal.
The document summarizes changes to foreign portfolio investment regulations in India. Key points include:
- A new "Foreign Portfolio Investment" scheme will replace the existing FII and QFI frameworks.
- Registered Foreign Portfolio Investors will be allowed to purchase shares, debt and engage in derivatives trading, subject to certain limits.
- RFPIs will be permitted to open special bank accounts to facilitate investment and can repatriate proceeds and invest in government bonds and corporate debt.
- Existing FIIs and QFIs will be deemed RFPIs for a transition period to allow for continued investment under the new rules.
The document is a regulatory update from the Confederation of Indian Industry (CII) providing information on domestic and global regulatory changes. It includes summaries of updates from the Securities and Exchange Board of India (SEBI) regarding non-compliance by listed companies, permitting certain clauses in shareholder agreements, regulations for listing small and medium enterprises on an institutional trading platform, and streamlining investor grievance redressal. It also provides summaries of draft rules released by the Ministry of Corporate Affairs on deposits, the Serious Fraud Investigation Office, and other matters. The update covers changes between September-October 2013.
The document provides a summary of recent open offers in the market. It lists details of 6 open offers such as the target company, acquirer, number of shares offered to be acquired, offer price and reason for the open offer. It also lists the concerned parties like merchant bankers and registrars for each open offer. The open offers are made to comply with regulations 10, 11, and 12 of SEBI Takeover Code for substantial acquisition of shares and change in control of listed companies.
SEBI - Clarification on clubbing of investment limits of foreign portfolio in...Venkatesh Prabhu
Clubbing of investment limit for FPIs will be on the basis of common ownership of more than 50% or based on common control. However, clubbing of investment limit of FPIs having common control shall not be done in case of (a) FPIs which are appropriately regulated public retail funds or (b) FPIs which are public retail funds majority owned by appropriately regulated public retail funds on look through basis or (c) FPIs which are public retail funds and investment managers (IMs) of such FPIs are appropriately regulated.
The meeting reviewed the progress of investigations into the NSEL payment crisis and legal challenges. Several court rulings impacted the cases. Agencies were advised to gather evidence of the involvement of NSEL and FTIL management in the scam and defend the cases. Investigating agencies were asked to share information with the Competent Authority to strengthen the legal defense. The meeting discussed implications of the court rulings and next steps for various agencies.
A Monthly Newsletter by Takeover Team of Corporate Professionals.
Highlights of this edition:-
SAT order in the matter of Mr. Hemant Kothari, Mr. Rajesh Kothari, Mr. Dharmendra Kothari, Mrs. Ichraj Devi Kothari and Mrs. Sunita Kothari
SAT order in the matter ofMr. Vilas Valunji, Mr. Partha Debnath,
Mr. Janardhan Shriniwas Purandare and Mr. V. A. Norhi
Consent Order in the matter of M/s. Count N Denier (India) Limited
Consent Order in the matter of M/s. Macor Packaging Limited
Exemption Order in the matter of M/s. Sarla Performance Limited
Adjudicating Officer/WTM Orders
Regular Section- Automatic Exemption from Open Offer
DISQUALIFIED DIRECTORS ANTICIPATE RELIEF FROM BOMBAY HCDishaShah147
1. The Bombay High Court has tagged all pending writ petitions regarding director disqualifications and scheduled a hearing for them on July 10, 2019.
2. In 2016, the Indian government's demonetization initiative led to the discovery of over 300,000 shell companies. As a result, the Ministry of Corporate Affairs struck over 2.17 lakh companies from the register and disqualified over 3.19 lakh individuals from directorships for failing to comply with regulations.
3. Directors can be disqualified under section 164 of the Companies Act for reasons like a company not filing financial statements or annual returns for three continuous years. Filing a writ petition with the high court or reviving the company through the
Securitisation and reconstruction of financial assets and enforcement of secu...ACS Shalu Saraf
The SARFAESI Act enables secured creditors like banks and financial institutions to enforce their security without court intervention. It allows creditors to take possession of secured assets, sell them, or assign rights over them to recover loans in case of default. The Act established mechanisms for asset reconstruction companies to acquire financial assets from banks and issue security receipts to investors. It defines terms like borrower, financial asset, and non-performing asset. The constitutional validity of the Act was upheld by the Supreme Court. Methods of recovery include securitization, asset reconstruction, and direct enforcement of security. Amendments allowed debt to equity conversion and banks to purchase auctioned properties under certain conditions.
This document discusses different types of securities used in Oman, including pledge, assignment, and guarantee. It explains that a pledge requires transferring possession of the collateral to the pledgee and involves shares, stocks, and movable assets. An assignment does not qualify as true security under Omani law but can be created by contract, requiring notice to the debtor. A guarantee legally obligates a third party to fulfill another's obligations if they default. The document provides details on perfecting and enforcing each type of security.
This document discusses different types of securities used in Oman, including pledges, assignments, and guarantees. It explains that a pledge requires transferring possession of the collateral to the pledgee and executing a legal instrument. An assignment does not have to be registered, but the assignor must notify the debtor and obtain acknowledgment. A guarantee requires consent from all company members or a shareholder resolution. To enforce any of these securities, a claim must be filed in primary court along with supporting documents.
The document provides summaries of orders from the Securities Appellate Tribunal and Adjudicating Officer related to takeover regulations.
1) The SAT rejected an exemption application for a preferential allotment as it was premature since the warrants had not yet been converted to shares carrying voting rights.
2) The Adjudicating Officer held that where no reply is received to a show cause notice, it can be assumed the charges are admitted.
3) The Adjudicating Officer found a change in control requiring an open offer where new directors appointed were acting in concert and taking part in management decisions.
This document provides a summary of recent updates, open offers, and regulatory changes from the January issue of a publication called "Insight".
1) It summarizes an order from the Takeover Panel regarding an application from Kothari Fermentation and Biochem Limited seeking exemption from open offer requirements. The Panel disposed of the application since the company's revival package was still before the BIFR.
2) It provides an interpretive circular from SEBI clarifying the scope of regulation 3(1)(ia) exemption for transfers of shares from venture capital funds to venture capital undertaking promoters.
3) It summarizes a SEBI order imposing a penalty of Rs. 25,000 on IQMS Software Limited
This document provides a summary of recent updates related to takeover regulations in India. It discusses two key court cases:
1) SEBI v M/s. Wealth Sea Pte. Ltd.: The court ruled that an indirect acquisition of shares in Indian companies through acquiring another company triggers the requirement to make an open offer under takeover regulations.
2) SEBI v M/s. Meghraj SP Corporate Finance: The court imposed a minor penalty of censure on a merchant banker for failing to ensure compliance with delisting guidelines during an acquisition.
It also provides brief details of four recent open offers made in accordance with takeover regulations and highlights the difference between Regulations 7(1) and 7
- There are no restrictions on the percentage of royalty payments for use of technology or trademarks under FEMA. Royalty payments are considered current account transactions.
- There are no restrictions on payment of commissions, except for commissions over USD 25,000 or 5% of inward remittance paid to agents abroad for sale of residential/commercial property in India.
- Payment for employee stock ownership plans (ESOPs) are considered capital account transactions governed by FEMA regulations.
- Under the Liberalized Remittance Scheme, residents can provide loans in foreign currency to non-resident Indian relatives.
- Profits from sale of property or shares by non-resident Indians are considered capital account transactions as the
Country Comparative Legal Guides to Insurance & Reinsurance, Ireland 2017Matheson Law Firm
This country-specific Q&A gives a pragmatic overview of the law and practice of insurance & reinsurance law in Ireland. It addresses topics such as contract regulation, licensing, penalties, policyholder protection, alternative dispute resolution as well as personal insight and opinion as to the future of the insurance market over the next five years.
This document is the Depositories Act of 1996 which establishes a legal framework for regulation of depositories in India. Some key points:
- It defines important terms related to depositories like depository, participant, beneficial owner, etc.
- It provides for regulation and oversight of depositories by the Securities and Exchange Board of India (SEBI). Depositories must be registered and obtain a certificate to operate.
- It specifies the rights and obligations of depositories, participants, issuers and beneficial owners when dealing with securities held in depositories. Securities are to be in dematerialized fungible form.
- Depositories must maintain records of beneficial owners and are responsible for indemnifying
The document summarizes various legal updates from adjudicating officer orders and SAT appeals relating to SEBI takeover regulations:
1) SAT held that acquisition of certain affirmative rights to protect investment does not constitute acquisition of control.
2) An adjudicating officer imposed a penalty for failure to disclose acquisition of shares that exceeded thresholds, even though shares were not directly transferred but blank transfer forms were received.
3) Another order imposed a penalty for incorrect disclosures and failure to disclose sale of shares by promoters that reduced their holdings.
4) One order examined what constitutes completion of a share purchase agreement for calculating disclosure timelines.
That Section 3(19) of IBC 2016 defines "Insolvency Professional" and Section 5(27) defines "resolution professional" to include and Resolution Professional (RP) and Interim Resolution Professional(IRP) as the case may be, "5(27) "resolution professional", for the purposes of this Part, means an insolvency professional appointed to conduct the corporate insolvency resolution process 1 [or the prepackaged insolvency resolution process, as the case may be,] and includes an Interim Resolution Professional."
The document summarizes key aspects of Italian bankruptcy law regarding "Concordato Preventivo Proceeding" (CPP), an insolvency process that allows distressed companies to negotiate debts under court supervision.
Section 168 provides an "automatic stay" that prevents creditors from enforcing or continuing claims against the debtor's assets from when the CPP petition is filed until the plan is confirmed. Section 184 makes the confirmed CPP plan binding on pre-filing creditors, though they can still pursue jointly liable entities or guarantors. The document distinguishes between pre-filing and post-filing claims and how they are treated under the CPP.
The document provides an overview of Debt Recovery Tribunals (DRTs) in India. Key points:
- DRTs were constituted under the Recovery of Debts Due to Banks and Financial Institutions Act to allow for faster recovery of debts compared to civil courts.
- DRTs have jurisdiction over cases where the debt owed is over Rs. 10 lakhs. They are aimed to settle cases within 180 days.
- DRTs are headed by a Presiding Officer who must be qualified as a district judge. Recovery Officers execute orders to recover debts.
- Original Applications are filed with the DRT to recover debts, along with documents as proof. Interim orders can restrain sale of assets until the
These slides will give overview of the Debt Recovery Tribunal and its Working of the Tribunal. Further it will help in understanding the requirements for filing an application under the Act.
These Slides will help in understanding the procedure of Debt Recovery Tribunal briefly along with the requirement for filing an application before the Tribunal.
This document summarizes the key provisions around mergers and amalgamations under the Companies Act of 1956 in India. It covers definitions, the roles of various entities in the process like courts and company registrars, requirements around shareholder and creditor approval, effective vs appointed dates of mergers, and other aspects like capital reductions and applicability of securities regulations. The summary is presented as a question and answer format for ease of understanding of the legal concepts involved in corporate mergers and amalgamations.
This document defines and explains collective investment schemes under Indian law. It notes that a collective investment scheme pools contributions from investors which are then used to generate profits, income or property for the investors, with investors having no day-to-day control over management. It provides examples of schemes that are not considered collective investment schemes, defines collective investment management companies, and outlines regulations around existing schemes, raising new funds, registration requirements, investor rights and redressal mechanisms.
Note on the Insolvency and Bankruptcy Code, 2016Shaun Menon
The document provides an overview of the Insolvency and Bankruptcy Code of 2016 in India. Some key points:
1) The Code was enacted to address shortcomings in existing insolvency laws and consolidate them under one law, aiming to resolve insolvency issues faster than previous average of 4.3 years in India.
2) It outlines the stage-wise corporate insolvency resolution process which must be concluded within 180 days and includes steps like appointing a resolution professional, forming a creditors committee, and developing a resolution plan or initiating liquidation.
3) If a resolution plan is not approved, the company enters liquidation where the resolution professional acts as liquidator to realize assets and distribute
This document discusses different types of securities used in Oman, including pledge, assignment, and guarantee. It explains that a pledge requires transferring possession of the collateral to the pledgee and involves shares, stocks, and movable assets. An assignment does not qualify as true security under Omani law but can be created by contract, requiring notice to the debtor. A guarantee legally obligates a third party to fulfill another's obligations if they default. The document provides details on perfecting and enforcing each type of security.
This document outlines the Financial Institutions Ordinance of 2001 in Pakistan. The ordinance aims to repeal and re-enact the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act of 1997 with some modifications. It establishes Banking Courts to handle cases related to recovery of finances extended by financial institutions in a timely manner. The ordinance defines key terms, outlines the duties of customers to fulfill obligations, and sets out procedures for financial institutions to recover written-off finances expeditiously through the new Banking Courts.
Eo1008 creating arbitration machinery for phil cons.industryjbonvier
The document establishes an arbitration commission for the Philippine construction industry. It creates the Construction Industry Arbitration Commission (CIAC) to settle disputes arising from construction contracts. The CIAC will have jurisdiction over voluntary arbitrations and will be composed of a chairman and two members appointed by the Construction Industry Authority of the Philippines. It will formulate arbitration rules and procedures and appoint arbitrators to settle disputes in the construction sector.
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The
This executive order creates an arbitration commission for the Philippine construction industry. The order establishes the Construction Industry Arbitration Commission (CIAC) to settle disputes arising from construction contracts. The CIAC will have original and exclusive jurisdiction over disputes involving both government and private construction contracts. The order outlines the composition, functions, and authority of the CIAC to appoint arbitrators, collect fees, and make final and binding rulings on contract disputes in the Philippine construction sector.
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This document summarizes restrictions on Crown entities providing guarantees and indemnities under New Zealand law. It outlines that Crown entities require approval from responsible Ministers or exemptions to provide guarantees or indemnities to other parties due to the Crown's sensitivity to risk and contingent liability. It provides examples of finance arrangements that have been approved, such as film production income sharing by NZ On Film or borrowing by District Health Boards. Entities must apply through the responsible monitoring department, typically Treasury, which has low appetite for risk. Unauthorized transactions may be invalid but can sometimes be remedied after the fact through Appropriations Acts or Ministerial consent. Wider accountability for Crown entities also includes the Minister, Auditor-General, Parliament and
I carried out research on WINDING UP OF A COMPANY and how it differs from Corporate Receivership. I prepared and presented my research before the firm's Managing Partner and Lawyers. I also answered questions posed at me by the lawyers and the Firm's Managing Partner.
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Yesterday, the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 (“Ordinance”) was promulgated. The Ordinance introduces several significant changes to the Insolvency and Bankruptcy Code, 2016. We have attached a note providing a snapshot of some of the key changes which have been introduced.
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The document provides an overview of the key aspects of the Insolvency and Bankruptcy Code (IBC) of India. It summarizes the various laws that previously governed insolvency in India and the issues they posed. It then outlines the key features and objectives of the IBC, including establishing a time-bound process for insolvency resolution, promoting entrepreneurship and credit availability. The summary explains the various authorities established under the IBC and their roles, as well as the processes for corporate insolvency resolution, liquidation, voluntary liquidation and bankruptcy for individuals and firms.
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Rolmax PRC Law Review February
1. Rolmax Law Review
February 2010
Shipping
Ship Arrest in China
Ship arrest used as a way to take security prior to proceedings can be traced back to 1986
when the Supreme Court imitated International Convention Relating to the Arrest of Sea-Going
Ships, 1952 and the International Convention on the Arrest of Ships drafted by CMI in 1985
and issued its Regulations on Arrest of Ship Prior to Proceedings.
The current authority on ship arrest is the Maritime Procedure Law (‘MPL”) with effect from 1
July 2000.
(1) For what purpose
MPL allows ships to be arrested for taking security prior to or during proceedings only for 22
specified maritime claims, which are more or less same as those listed under the International
Convention on the Arrest of Ships 1999. However, ships can be arrested for fulfilling effective
judgments/awards without the “maritime claims” restrictions.
(2) Competent courts
For purpose of obtaining security prior to proceedings, application for arrest of ship can only be
made to the maritime court at the place where the ship is located. For purpose of obtaining
security during proceedings, application can only be made to the maritime court hearing the
substantive dispute. The courts are not allowed to arrest ships. Even if a civil court has to
arrest a ship for the purpose of fulfilling an effective court judgment/award, the civil court has to
entrust the maritime court at the place of the port of registry or where the ship is located. Within
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2. 30 days after the ship is arrested, the party should commerce lawsuit or arbitration, or else the
ship or the security provided will be released.
(3) Sister ships arrestable
The sister ships which can be arrested by maritime courts are those ships, at time of arresting,
owned by the shipowner, bare-boat charterer, time charterer or voyage charterer who are
allegedly liable for a maritime claim (except for those in connection with ownership or
possession of a ship), which is in substance similar to the International Convention on the
Arrest of Ships 1999.
(4) Security and counter-security
The purpose of arresting a ship is to obtain security for fulfilling future judgment/award.
After a ship is arrested, the owner or charterer of the ship will need to post a security in order to
get the ship released. The amount of security requested by the claimant will be limited to the
amount of claim and also the value of the ship. The security normally will be in form a
guarantee issued or endorsed by a financial institution operating in China. It could also be in
cash or other forms of security such as mortgage and pledge over property.
The party applying for ship arrest will also need to post a counter-security to the court, to
compensate the owner/charterer in case the ship arrest proves to be a wrongful one. The
amount of counter-security is normally equivalent to the possible losses that may have been
caused to the owner/charterer if case of wrongful arrest. In practice, this amount is usually
determined to be 30 day’s hire of the ship. The court will also request the applying party to
advance some costs for guarding the ship.
The test of a “wrongful arrest” is whether the maritime claim of the applying party has prevailed
before the court or arbitrational tribunal. If the maritime claim does not sustain, the applying
party need to compensate the owner/charterer of the ship the losses the maintenance charges
and expenses occurred during the period of berth when the ship is detained, the loss of sailing
period as a result of detainment of the ship, and the expenses incurred to the respondent to
provide security to release the ship.
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3. (5) Procedure
a. The applying party submits application, specifying claims, grounds, the ship to be arrested
and the amount of security requested, supported by prima facie evidence.
b. The applying party posts counter-security to the court.
c. The court makes preliminary examination on the application.
d. The court makes a ruling to arrest or not to arrest the ship, within 48 hours after accepting
the application. Within 5 days after the ruling is issued, the owner/charterer can apply to
the court for challenging the ruling.
e. The court issues and serve ship arrest order on the ship, issued notices for assistance to
the maritime safety administration and the frontier inspection authority.
f. The court releases the ship if (i) the owner/charterer posts security as per the ruling, (ii) the
owner/charterer successfully challenges the ruling or (iii) the applying party fails to
commence lawsuit or arbitration within 30 days.
Finance
Impact of Conflict between Different Laws on Share Pledge
It is difficult for foreign lenders to take security from PRC entities due to restrictions on PRC
entities’ capability to provide corporate guarantees. More and more foreign lenders find taking
security over shares of a foreign invested enterprise (“FIE”) a relatively effective way to secure
the borrowing to the parent companies of the FIE.
According to the Provisions on Change of Shares of FIE (1997) (“Provisions”), share pledge
will be valid only after it has been approved by the approval authority (Bureau of Commence)
that approved the establishment of the FIE. However, according to the Property Law (2007),
pledge of shares (except those registered in Securities Registration and Settlement
Organizations) takes effect form the date it is registered in the company registry
(Administration for Industry and Commerce). There has been controversies over whether
pledge over shares of a FIE is valid and effective if no approval has been obtained from the
approval authority.
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4. According to Article 52 of the Contract Law (1999), a contract is invalid if it is against the
`mandatory provisions of laws or administrative regulations. The Supreme Court’s Judicial
Interpretations on the Contract Law (2009) further clarifies that “the mandatory provisions”
referred to in the Article 52 of the Contract Law is limited to those mandatory provisions on
“effectiveness”. In other words, a share pledge contract can be held as invalid if it is against
the mandatory provisions of “laws and administrative regulations”. The Provisions are not a
piece of law or administrative regulations, but only the regulations issued by ministries.
Therefore, the Provisions can not set restriction on the effectiveness of a share pledge
contract.
In practice, the company registry, basing on the Provisions, only register those pledges over
shares of FIEs that have been approved by the approval authority. This means in practice the
Provisions which are not law or administrative regulations restrict the effectiveness of a
commercial contract.
The Supreme Court has made efforts to address this. In its consultation draft of the Provisions
on Hearing Disputes Relating to FIEs, it is clearly provided that the share pledge contract
takes effect from the moment it is signed and the courts will not support arguments that the
share pledge contract is not effective because it is not approved by the approval authority.
Corporate / FDI
Foreign Invested Partnership Allowed
The State Council issued its Administrative Measures for Establishment of Partnership
Enterprises in China by Foreign Enterprises or Individuals (“Measures”). With effect from 1
March 2010, the Measures will allow foreign investors to become partners of partnerships
(both general partnerships and limited partnerships) in China.
This appears to be a piece of good news for international PE/VC who found difficult to raise
RMB fund from domestic investors due to current restrictions where foreign investors are not
allowed to set up a partnership in China. However, the Measures also say that for foreign
investors establishing partnerships in China with investment as primary business, special
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5. regulations (it is not clear what set of regulations) will apply. So whether and how PE/VC could
take advantage of this newly allowed commercial presence remains to be seen.
No approval from Ministry of Commerce or its local offices is required for establishing a
foreign-invested partnership. The local offices of Administration for Industry and Commerce
are designated to register the foreign-invested partnership and notify the corresponding local
offices of Ministry of Commerce after registration.
Control Tightened over Foreign Enterprises’ Representative Offices in China
China recently issued a new notice on further strengthening administration of registration of
foreign enterprises’ permanent representative office in China. The notice with effect from 4
January 2010 reiterates the following requirements:
(a) A representative office (except for those approved to engage in some of the professions
such as legal consulting) is not allowed to engage in business activities that will generate
profits. Its function is strictly limited to do marking search or liaison work.
(b) At the time of opening a representative office or changing the name of an existing
representative office, the foreign enterprise must provide documents proving that the
foreign enterprise has been in operation for more than 2 years, credit reference letter
issued by the bank of the foreign enterprise. All these documents must be notarized and
then legalized by the Chinese Embassy/Consulate in the country of that foreign enterprise.
(c) The term of the certificate of registration certificate is strictly limited to 1 year. For
registration certificates that were issued for a term longer than 1 year, they must be
replaced by a 1-year term registration certificate at the time of filing application for change
or extension.
(d) The number of representatives (including the chief representative) is limited to 4. For an
existing representative office that has more than 4 representatives, it is only allowed to
replace or remove a registered representative, but not to add new representative.
(e) With 3 months after a representative office is established, the local counterparts of the
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6. Administration for Industry and Commerce will conduct a site inspection on the
representative office and will impose severe sanctions if violations are found.
Most interestingly, this notice was jointly issued by Administration for Industry and Commence
and the Ministry of Public Security. This appears to be quite unusual as Ministry of Public
Security is not involved in the registration of foreign representative offices in China. According
to this notice, the local office of Administration of Industry and Commerce will regularly notify
the correspondent office of exit and entry administration of the registration information of
foreign representative offices and any noncompliance. In case a representative is found
illegally conducting business (i.e. conducting the business not granted under the registration
certificate), the administration of industry and commerce will hand over to the public security
authority for investigation and further action.
The public security authority in turn will notify the administration for industry and commence of
irregularities relating to a foreign representative office such as using a fake address to register
the office, doing business outside of the place of registration or omission to comply with the
registration or annual inspection requirements, for further investigation and action.
In light of the above new developments, foreign investors who are not sure whether their
representative offices comply with the requirements or whether their business plan in China
can be implemented through a representative office are recommended to seek legal advice in
this respect.
Employment
Wizardry in Making a Binding and Enforceable Employee Handbook
The provisions in an Employee handbook, if properly made and issued, can be relied upon by
employer as legal basis for terminating employment contract or imposing disciplinary actions
and can be taken by the courts or labor dispute arbitration commission as “authority” in hearing
labor disputes. However, there have been a lot of reported cases where employers (relying
upon employee handbook) lost a seemingly strong case.
The trick is how the employee handbook is made and issued. According to Article 4 of the
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7. Labor Contract Law 2008, the employer should establish and maintain employment bylaws to
ensure employee’s compliance with employment obligations. When preparing, amending
bylaws or deciding on important issues which may have a direct impact on the interests of the
employees such as salary, working hours, leave and holiday, labor safety, insurance and
welfare, training, workplace discipline etc., the employer should (1) discuss with employees
representatives conference or all employees of the company, (2) propose an initial draft of the
handbook, (3) determine the final version after discussion with trade union or employees’
representatives and (4) post the handbook or otherwise notify all the employees.
According to the various guidance opinions issued by high courts in different parts of China
regarding the validity of employee handbook, if an employee handbook was made before 1
January 2008 and was announced to the employees, and if its content is not against the
relevant laws, regulations or policies, such employee handbook can be relied upon employer
as basis for administering employment. But for employee handbooks made after 1 January
2008, if it is not made through the so-called “democratic procedures” as described above, as a
general principle, such employee handbook can not be relied upon by the employer for
administering the employment or imposing disciplinary action or terminating employment
contract.
Most of foreign invested enterprises in China do not have a grass-root trade union organization
or employees’ representative conference within their companies. So how can they follow this
procedure? If an employer has records to show that it has taken the following steps to make its
employee handbook, validity of the employment handbook is difficult to be challenged: (a) the
company proposes an initial draft, (b) the company sends the draft to all employees by email
and/or by distribution of hard copies asking for opinion, signature required to prove receipt, (c)
the company finalizes the handbook according to the feedback received from the employees
and (d) the company publishes the handbook to all employees, signature required to prove
receipt.
Who has the final say? Though the employer has to consult the employees for making the
employee handbook, the employer has the final say in determining its content. In other words,
as long as the employer has followed the procedures to ask for opinion of the employees, the
employer does not have to incorporate such opinion into the employee handbook, always
provided that the content of the employee handbook is not against the relevant laws,
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8. regulations or polices.
Employers are advised to seek professional advice in preparing, amending and issuing a
legally binding and enforceable employee handbook.
At this time of the year, we extend our warmest regards to each of our clients and readers and
wish you all a Happy, Healthy and Prosperous New Year of the Tiger!
Publication of Rolmax Law Office
Edited by Rolmax Guangzhou
3205-3206, East Tower, Tianyu Business Plaza, Dong Feng Dong Road, Guangzhou, P.R. China
Tel : (86) 20 2281 6900 Fax : (86) 20 2281 6920 Website: www.rolmax.com Email: Guangzhou@rolmax.com
Information contained in this newsletter should not be applied to any set of facts without seeking legal advice.