A world economy left in ruins by the Coronavirus pandemic has forced policy makers to take one (or a hundred) steps back to reassess their approach to building a sustainable future – starting with creating a more resilient economy and infrastructure. The national commercial law space has notably undergone a striking upheaval with the focus now placed on surviving rather than profiting. With companies focused on advancing technologies to tide over this crisis, intellectual property rights have been pushed to the forefront, and international players have optimistically come together more than ever before.
In keeping with this spirit, we hope that through this blog we can encourage discourse on these three crucial areas of law: Commercial Law, Intellectual Property Rights and International Law, as we adapt, together, to the dynamics of a fast evolving world.
The Arbitration and Conciliation Act, 1996 is the primary legislation for arbitration in India. The law governs the procedural obligations of an arbitration. However, there are certain special legislations that provide for their own arbitration mechanism. The issue arises when one has to decide which law is going to prevail, in case of any conflict between such laws. The Supreme Court, in Chief General Manager (IPC) MP Power Trading Company Limited v. Narmada Equipment Pvt Limited [(2021) SCC Online SC 225], has recently clarified the same. It held that the special legislation (in this case, the Electricity Act, 2003 ) shall override the Arbitration and Conciliation Act, 1996. Since the Electricity Act, 2003 is a special and an exclusive legislation that mentions a separate arbitration mechanism for disputes between licensees and power generating companies, it overrides the general procedural law of India.
The recent judgment of the Delhi High Court in Oyo Hotels and Homes Pvt. Ltd. v. Rajan Tewari and Anr. held that a Court has the power to set aside the appointment of an arbitrator, if the appointment is ex-facie contrary to the arbitration clause and is therefore, non-est in law. The Court was deciding a petition under Section 11 (6) of the Arbitration and Conciliation, Act 1996. The Court further appointed another arbitrator to adjudicate disputes between the parties while setting aside the appointment of the sole arbitrator.
Alibaba has been slapped with a fine of USD 27.8 billion by China’s antitrust regulators for abusing its dominant position as Beijing has hardened the rules on the country’s tech giants. After the four month investigation into the practices of Alibaba Group, China’s State Administration for Market Regulation (SAMR) concluded that the company has been engaging into practices of abuse of dominance since 2015 by prohibiting the merchants from opening stores or participating in promotional activities on other competitive platforms.
On 8th April, 2021, the Supreme Court allowed the government to deport Rohingyas to Myanmar from the Indian territory, through its order. The government of India had argued that the Rohingyas were illegal immigrants who had crossed the Indian border. Even though they enjoy the right to life and right to equality on the Indian territory, their right to movement is hindered due to their lack of attachment with the Indian territory, the government further added. This decision comes when Myanmar is facing an escalation in violence towards the protesters who are protesting against the coup led by the Myanmar military who overthrew the democratically elected government.
In a recent case, the National Company Law Appellate Tribunal (NCLAT) has reiterated that rules and actions under the Insolvency Bankruptcy Code, 2016 (IBC) would hold precedence over other laws. This also includes the actions of the Enforcement Directorate (ED) of attachment of property under the Prevention of Money Laundering Act (PMLA). This comes when the ED moved to NCLAT against an order of the Mumbai Bench of the National Company Law Tribunal. The NCLAT held that even where the probe agency had already attached a property under the PMLA, it must vacate its claims over the assets when the insolvency process starts against the same company.