Discordant voices

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Sunlight, as US Justice Louis Brandeis famously said, is the best disinfectant

When four judges of the Supreme Court recently spoke out about what they see as abuse of power by the chief justice of India, the uproar that followed was exceptional. Judges addressing such issues – alleged irregularities with allocation of cases and constitution of benches – in this manner is unprecedented. While some called it courageous, others were critical. What happened will no doubt be debated long and hard.

1712 LeaderWhile expressing concern about the overall functioning of the justice delivery system, the independence of high courts, and the functioning of the office of the chief justice of India, the judges in question have also turned the spotlight on the less than transparent conventions that guide the behind-the-scenes action at courts.

The Supreme Court is arguably the country’s most powerful institution. Its role as the guardian of the constitution and adjudicator of last resort is sacrosanct. Both administrative and judicial decisions taken by it have to be unimpeachable and it is up to the judiciary to ensure this. The conventions that guide the key administrative decisions they take need to be brought out from the shadows. Is it too much to ask that judges be seen as doing what they order others to do?

Conflicts of a more granular nature are the subject of this issue’s Cover story, which analyses challenges that arise on account of discordant legislation. As detailed, the enforcement of international arbitration awards in India that involve a remittance of foreign exchange from a resident to a non-resident invariably have implications under the Foreign Exchange Management Act, 1999. As such, in a recent dispute between Japan’s NTT Docomo and Tata Sons, Delhi High Court was asked to decide whether enforcement of a foreign arbitral award could be denied on the grounds that it would be in violation of foreign exchange law. In this instance the court ruled it would not be a violation, but should we leave such questions to the courts? Surely legislative gaps such as this should be plugged by the legislature itself.

In Getting inventive we turn the spotlight on the changing ecosystem for intellectual property (IP) rights. There has been some activity on this front with the introduction of the Patents (Amendment) Rules, 2016, and moves to set up an IP exchange under the auspices of the Ministry of Science and Technology. In addition, special benches for the adjudication of IP disputes have been mooted. These are incremental steps, but could go a long way in establishing India’s credentials as an IP rights centric jurisdiction.

In this issue’s Vantage point seven in-house lawyers, share their views on the developments that are likely to shape India’s legal and business climate in 2018. While Arun Madhu at Nexus Venture Partners and Ketan Mukhija at SREI Infrastructure Finance look forward to seeing the the Insolvency and Bankruptcy Code, 2016, transform the path taken by disputes over debts and payments, K Srinivas at Amara Raja Batteries focuses on the data protection environment. Aditi Chopra at Microsoft similarly highlights the European Union’s new data protection regulation which she says is set to become the new normal. Looking at her own role, Sanjit Kaur Batra at DuPont suggests that 2018 will be the year when being a good lawyer is not good enough – general counsel will need to be business enablers and the conscience of the company, and more.

This issue’s What’s the deal? celebrates the triumphs of lawyers both in India and outside over the past year, with a compilation of the top 50 India related deals and dispute resolution cases of 2017. The leading deals of the year were identified after an extensive shortlisting and research process and while some were chosen for their sheer size others made it onto our list on account of their complexity, innovative aspects and the precedents that were set. While analyzing the significance of each deal, we identify the law firms and lawyers who guided it through its many twists and turns.

This issue’s Intelligence report investigates how the Insolvency and Bankruptcy Code is being used against real estate companies that accumulated large debts while seeking to outpace the competition. The new regime represents a paradigm shift in the law and has been turning the tables on developers who default on payments. The Insolvency and Bankruptcy Code has created a situation where home buyers may initiate insolvency proceedings, but get repaid only if the pot is not empty after the secured and operational creditors are paid. This is because home buyers are not recognized as secured creditors. Only a rethink of the law can avoid such discord.