New Rules for Pro-Rata and Pari-Passu Rights in Alternative Investments

Indian family businesses have dominated the Indian economy for several decades leading to a history of innovation and entrepreneurship. They are the backbone of the Indian economy and immensely contribute towards nation building and our international standing. They provide employment to millions and house within its fold the grit, hard work and talent of its founders and of the many that contribute to bringing the business to where it stands today. This puts a moral obligation on the succeeding generations to ensure that the businesses continue to grow and prosper. 

Securities and Exchange Board of India recently amended the Alternative Investment Fund (AIF) Regulations on November 18, 2022, aiming to standardise investor rights and ensure equitable treatment across AIFs. The new framework mandates that  each investor in an AIF is entitled to rights pro rata to its capital commitment for each investment and distribution, subject to certain exceptions. The amendment further states that existing AIFs that do not comply with this requirement will be governed by rules that SEBI is expected to prescribe soon. Although SEBI is yet to officially notify these rules, it is imminent that they will be published soon. 

In a landmark Judgment dated 18 October 2024 in Civil Appeal Nos. 3098-3099 of 2023: Airports Economic Regulatory Authority of India vs. Delhi International Airport Ltd. & Ors., the Supreme Court of India (Supreme Court) has addressed the pivotal issue of whether the statutory sectoral regulators, which are quasi-judicial bodies, have the locus/standing to appeal against the orders of the Appellate Tribunals before the Supreme Court.

This blog is in continuation to the previous blog on Surrogacy Regulation Act, 2021 – A step forward or a step back? (PART I)

Before the enactment of the Surrogacy Regulation Act, 2021 (Act), surrogacy in India was largely unregulated, leading to the exploitation of underprivileged women, especially by foreign nationals seeking affordable surrogacy which led to the commercialisation of surrogacy in India. In 2009, the Law Commission of India called for a ban on commercial surrogacy. This led to the drafting of the Surrogacy (Regulation) Bill in 2016, which aimed to ban commercial surrogacy, regulate clinics, and ensure ethical practices.

In secondary transactions, deferred consideration, milestone-based payments or earn-out payments are often used when the seller expects a higher valuation for the target, but the buyer believes the valuation should be justified based on future performance or achievement of specific milestones. As a result, the buyer may agree to pay an additional amount to the seller for the transfer of the asset, provided certain conditions are met, typically linked to the performance of the underlying business. 

A key decision that multi-national corporations must make while establishing a business in India is the choice of a business vehicle. While incorporating companies or limited liability partnerships are popular choices for doing business in India, several foreign corporations also choose to conduct business by setting up a ‘branch’ in India. 

In the landscape of onshore or cross-border transactions, the no-objection certificate (NOC) from tax authorities under Section 281 of the Income Tax Act, 1961 (IT Act) plays a critical role. The complexities of negotiating NOCs can often place sellers and buyers at odds, making it imperative to understand the fundamentals and relevance of this certificate, as well as its potential ramifications.

In a significant development, the Appellate Tribunal for Electricity (APTEL) vide its order dated 28 August 2024 in Appeal 309 of 2019: Madhya Pradesh Power Management Company Ltd. vs. Damodar Valley Corporation & Anr., has clarified that:

Over the past decade, various reports have highlighted the migration trends of wealthy Indians. This pre-existing trend has only accelerated due to the pandemic, with the UK becoming a summer home for well-heeled Indians. 

The Indian Finance Act, 2024 (Finance Act), passed pursuant to the Union Budget for the financial year 2024-25 (Budget 2024), brings a comprehensive set of reforms aimed at enhancing the country's financial sector. This article delves into the key proposals in the Finance Act and their implications on the debt capital markets in India.

The Reserve Bank of India (RBI) recently shortened the timelines within which credit information needs to be reported and updated by credit institutions and Credit Information Companies (CICs), respectively through a notification on 8 August 2024 (Notification). Noting the pace at which short term credit is growing and digital credit underwriting is being undertaken, the RBI highlighted that Credit Information Reports (CIRs) must reflect information that is as close as possible to the current date. Prior to the Notification, credit institutions were reporting credit information to CICs on a monthly basis, resulting in outdated data which was 30-60 days old. Credit institutions are now required to report credit information to CICs within seven calendar days following the 15th and last day of each month. Correspondingly, the CICs are required to update the information on a fortnightly basis. Moreover, CICs are to ingest received credit information within five calendar days from the date of its receipt instead of seven days. To ensure compliance, CICs will be required to submit a list of credit institutions which fail to comply with the Notification to the Department of Supervision, RBI on a biannual basis. Noting the changes required to existing operations, credit institutions and CICs have been given time till 1 January 2025 to implement the Notification. 

India's Union Budget 2024 has introduced significant changes to the country's buyback tax regime, set to take effect from 1 October 2024. These changes mark a fundamental shift in how tax liability is handled for share buybacks, moving it from companies to shareholders. Here’s a simplified overview of these amendments, their potential benefits, and drawbacks.

Not-for-profit (NFP) entities, established for charitable purposes, play a crucial role in reducing the burden on the government by implementing welfare and development delivery systems. In recognition of their contribution, the Income-tax Act, 1961 (IT Act), provide certain exemptions to these entities, subject to specific conditions.  However, over the years, the IT Act has undergone various amendments to make the conditions for claiming such tax exemption more stringent to prevent misuse and have checks and balances on the functioning of such NFPs.

The Food Safety and Standards Authority of India (FSSAI) recently issued an advisory dated 21 August 2024, restricting the Food Business Operators (FBO) from selling and marketing of dairy products with A1 and A2 labels. This move was intended to address concerns over misleading claims related to these types of beta-casein proteins. However, in less than a week, the FSSAI withdrew the advisory, citing the need for further consultation with stakeholders. 

Recent findings by the Food and Agriculture Organisation (FAO) have revealed alarming levels of microplastics in everyday food items like sugar and salt. According to the study by FAO, iodised salt contained the highest concentration of microplastics, with 89.15 pieces per kilogramme, while organic rock salt produced the lowest concentration, with 6.70 pieces per kilogramme. In sugar, the microplastic particles varied between 11.85 to 68.25 pieces per kilogramme, with non-organic sugar showing the highest levels. Further, Toxics Link, another environmental research organisation conducted a study, titled ’Microplastics in Salt and Sugar’. The study tested 10 types of salt, and five types of sugar purchased from both online and local markets. The study confirmed the presence of microplastics in all samples, with particles identified as fibres, pellets, films, and fragments ranging from 0.1 mm to 5 mm. 

In continuation to the previous article on SIGHT Programme – Component I, an allocation of INR 13,050 crore has been made for SIGHT Programme – Component II (Programme) for production of green hydrogen and its derivatives with the objective to maximise the production of green hydrogen and its derivatives in India and increasing their cost-competitiveness while encouraging their large-scale utilisation. 

Subsequent to the launch of the National Green Hydrogen Mission by the Government of India on 15 August 2021, INR 17,490 crore was allocated for the Strategic Interventions for Green Hydrogen Transition (SIGHT) programme (Programme) out of which INR 4,440 crore has been earmarked for a production-linked incentive scheme under the Programme’s Component I, aimed at promoting indigenous manufacturing of electrolysers including building adequate infrastructure, cost reduction, and to ensure global competitiveness and rapid scale-up, for 5 (five) years from the date of manufacturing. Component I of the Programme will be implemented by Solar Energy Corporation of India Limited (SECI).

In a detailed post, we covered the various amendments brought about by the Jan Vishwas (Amendment of Provisions) Act, 2023 (JV Act) to the intellectual property legislation in India. As a quick recap, the JV Act was passed by the Lok Sabha on 27 June 2023 and by the Rajya Sabha on 2 August 2023, receiving the President’s assent on 11 August 2023. The objective of the JV Act is to enhance trust-based governance and facilitate ease of doing business in the country through decriminalisation and rationalisation of various ‘minor’ offences. 

The Ministry of New and Renewable Energy (“MNRE”) issued the ‘Guidelines for Development of Onshore Wind Power Projects’ dated 22 October 2016 (“Original Guidelines”) for setting up of wind power plants to promote a growth of the wind power sector in the country, keeping in mind the advancement in wind turbine technology. On 4 July 2024, the MNRE amended the Original Guidelines (“Amended Guidelines”) to include revised norms on micrositing for wind turbines. 

In a significant development for satellite communication in India, Amazon's Project Kuiper and Starlink submitted applications to the Indian National Space Promotion and Authorisation Centre (“IN-SPACE”) in July 2024 seeking landing rights in India to deploy their global low-earth orbit satellite constellation capacities. These applications were made in accordance with the IN-SPACe Norms, Guidelines, and Procedures (“NGP”) released on 4 May 2024, which were designed to facilitate the implementation of the Indian Space Policy-2023.

The private coaching market in India has grown rapidly over the last decade. It recorded a market revenue of USD 7 billion in December 2022 and is projected to reach USD 16.16 billion by 2028. With about 250 million students in K-12, comprising almost 25% of the world’s school going students, India is one of the largest markets for the coaching industry.

A trade secret is any business information that is kept confidential to maintain an advantage over competitors. As opposed to conventional forms of intellectual property such as patents and designs that require public disclosure for grant of statutory rights, the value of a trade secret lies in its confidentiality. If maintained carefully, a trade secret can potentially enjoy perpetual protection.

The Securities and Exchange Board of India has provided a crucial lifeline to venture capital funds (VCFs) by allowing them to transition from the SEBI (Venture Capital Fund) Regulations 1996 (VCF Regulations) to the SEBI (Alternative Investment Fund) Regulations, 2012 (AIF Regulations).  During its board meeting on April 30, 2024, SEBI approved a proposal to provide an option to VCFs which are nearing the end of their tenure yet unable to fully liquidate their portfolio to migrate into the AIF Regulations. 

The global semiconductor industry is expanding rapidly and is expected to become a trillion-dollar industry by 2030. India aspires to be a major player in this growth, with its semiconductor market expected to reach USD 271.9 billion by 2032. To capitalise on this opportunity, the country has implemented generous fiscal support, conducive manufacturing policies, and international collaborations. 

In the evolving landscape of international taxation, the past decade has seen a consistent and widespread acceptance of tax ‘anti-avoidance rules’ globally. These rules give tax authorities wide ranging powers to deny tax benefits. Recently, both the Indian and Mauritian Government took significant strides in this direction by entering into a Protocol to introduce an anti-avoidance rule known as the ‘Principal Purpose Test’ (PPT) within the India-Mauritius tax treaty framework. The PPT aims to deny the treaty’s benefits if any one of the principal purpose of a transaction, structure or arrangement is to claim such benefits. While the applicability of PPT to past transactions or exits remain uncertain, clients holding India investments in a Mauritius entity or looking to set up a Mauritius structure must assess if their setups withstand PPT scrutiny. India-Mauritius tax treaty continues to provide Mauritian investors several tax incentives such as lower dividend tax rate of 5% (for Mauritius companies holding at least 10% in Indian company) or 15% (otherwise), interest withholding tax rate of 7.5% and capital gains tax exemption on transfer of shares in Indian company (acquired prior to 1 April 2017), debt securities and shares of companies outside India. 

Agriculture in India has positioned itself as a core industry, serving as a primary source of income for over 70% of rural households to facilitate the continuing growth of the industry, the development of resilient plant varieties and superior quality of seeds is critical. Recognising this, nations across the globe have embraced protection for plant varieties to foster innovation. 

Within India's dynamic financial landscape, the rise of non-banking financial companies (NBFCs) has been transformative, catering to diverse financial needs. Yet, within this thriving sector, asset-light companies encounter a maze of regulatory hurdles that may impede their growth and operational agility.

In June 2023, the Centre established an expert committee with the mandate to assess the functioning and effectiveness of Indian Arbitration Act and propose reforms to enhance India’s arbitration ecosystem. The report from this panel, led by former law secretary T K Vishwanathan, was released in February 2024, and is now under review by the Ministry of Law and Justice. 

The Inland Revenue Authority of Singapore (IRAS) has recently introduced a significant change impacting investors in the form of a capital gains tax on the transfer of 'foreign assets' – the Foreign Disposal Tax or FDT. Effective from 1 January 2024, the amendment aims to tax the disposal of foreign assets by entities resident in Singapore under certain circumstances. 

For global investors looking to participate in the attractive India growth story, navigating the complex terrain of tax regulations can be challenging. In this regard, international tax treaties offer global investors much needed certainty with respect to the cross-border tax implications for their global income. Historically, India-Mauritius and India-Singapore tax treaties have offered benefits to investors from these countries in the form of capital gains tax exemptions. While such benefits have been phased out since 2017, eligibility for benefits under these treaties remains a contested issue before Indian courts. Revenue authorities have often challenged the eligibility of entities from Mauritius and Singapore for treaty benefits. Recent developments in the Supreme Court indicate that investors may have to remain extra cautious while claiming such tax treaty benefits.

Reconciling workplace security and safety, with employee privacy, dignity, and autonomy is a balancing act. Globally, power asymmetry in employment renders ‘consent’ unfavorable. Under the General Data Protection Regulation (GDPR), ‘legitimate interests’ as a ground to process employee data has been criticised for being overly flexible.

The intersection of competition law and data privacy aligns closely with user protection and empowerment. While the Competition Act, 2002 is designed to preserve market competitiveness, the Digital Personal Data Protection Act, 2023 (DPDP Act), empowers individuals by ensuring lawful collection and processing of their personal data.

With the enactment of the DPDP Act, it is timely to discuss how the two laws coalesce and complement one another rather than conflict with each other.

With the implementation of the Digital Personal Data Protection Act 2023 (Act) all set, India’s buzzing ed-tech space is predicted to undergo a reshaping of its contours and business models.

The Digital Personal Data Protection Act 2023 (Act) places the primary obligation on ‘data fiduciaries’ to protect digital personal data of individuals and implement consent artifacts, including for any outsourcing arrangements for processing. Entities who merely process such data at the behest of another entity, called ‘data processors’ have been excluded from the statutory compliance obligations under the Act. The Act defines ‘data fiduciary’ as any entity determining the means and purpose of processing personal data. Entities handling data are required to undertake this classification exercise as the first step, i.e., whether they are merely data processors or can be classified as data fiduciaries. 

Generative Artificial Intelligence (Gen AI) dominated the global conversation in 2023. Most organisations are optimistic and brainstorming ways to integrate AI into their businesses. Let us begin 2024 by reflecting on gaps in diversity so that we can understand and finetune design. How inclusive is the data that AI is using from the internet to train itself? How diverse are the teams working on the technology and onboarding these solutions into our businesses? If you are leading digital transformation in your organisation, you will be considering these questions.

The University Grants Commission (UGC) recently released the much-anticipated regulatory framework allowing foreign universities to set up campuses in India. This framework permits foreign universities listed in the top-500 global rankings, or subject-wise rankings, or possessing outstanding expertise to set up campuses in India upon obtaining UGC approval.

With the intent to grant greater control over personal data and maintain a balance between the protection of privacy and data-driven innovations, India enacted the Digital Personal Data Protection Act 2023 (DPDPA) in August 2023. The government is also likely to notify rules prescribing specific compliances under the DPDPA over the next few months. With this background, here are five key steps that over the top (OTT) and content streaming platforms should proactively consider to ensure compliance with the DPDPA. 

The legal profession, like most other advisory spheres, has significantly transformed thanks to rapid globalisation and digitalisation. This evolution continues to be ubiquitous and disruptive all the same, and increasingly pushes lawyers to realign and recalibrate the virtues of client servicing. As in most parts of the world, India’s legal industry has moved away from being pre-dominantly a “demand-pull” one, to one being overly driven by “supply-push” compulsions. 

Since the beginning of 2023, the global financial system has been facing significant challenges with respect to high interest rates and inflation. Recent failures of Silicon Valley Bank, First Republic Bank and Signature Bank in the U.S. and loss of market confidence in Credit Suisse are some examples which show that the world is still adjusting to a tighter monetary policy.

The conviction of Sam Bankman-Fried by a New York jury earlier this month cannot be seen in isolation. WeWork, another fast-growing company with an innovative business model and backed by leading investors, is heading for bankruptcy. 

For founders of companies, raising capital from investors is a significant step in the entrepreneurial journey and may often prove to be challenging.

At the crucial stage of raising venture capital, here are the key aspects to focus on:  

Policy, Mission and Tweaking Laws to Provide Momentum to GH2 Projects.

“If you start me up, I’ll never stop” Croon the Rolling Stones in their hit song “Start Me Up”, written by Mick Jagger and Keith Richards for the band’s 1981 multi-platinum album “Tattoo You” sums up the blazing growth story of the Indian start-up ecosystem. Although there have been a fair share of challenges along the way, the growth journey has been remarkable. 

Diversity and inclusion initiatives at the workplace have become essential for employers across the world. While most of the developed nations have comprehensive codified laws to prevent workplace discrimination across sectors, India has a few anti-discrimination laws that prohibit and prevent discrimination of employees in the private sector. 

The issue of deepfakes took centre stage in the Indian media recently, when a deepfake video of a celebrity went viral on social media. The video was created without the consent of the celebrity whose face was morphed replacing the person who originally featured in it. The deepfake video met with outrage on the internet and resulted in an advisory from the Ministry of Electronics and Information Technology (MEITY) to social media platforms, on 7 November, requiring them to take decisive actions on such incidents. 

In this article, we talk about what one needs to know about deepfakes and the regulatory landscape around it.