Month: January 2021

Categories
Blog

E- Sports Player Contracts and the Clauses Covered Under It

By: Manohar Samal

  1. Introduction 

Electronic sports (e- sports) involves playing computer or other games for profit where fans view the gaming and place wagers depending upon the skills of the players indulged in such games.[1] Not only wagers but, e- sports generate revenues through live streaming of players as well.[2] Reportedly, 380 million people worldwide were indulged in watching some or other form of e- sports making it a billion dollar industry.[3] The growth and evolution of e- sports into a money- making industry has resulted in exploration of new possibilities in the legal field such as its operation with legal endorsements, intellectual property and contracts.[4]

Contract law plays an extremely central role in e- sports and contracts for teams, players, tournament leaders and leagues should be well- drafted in place. This is mainly because during the initial years of e- sports turning into a profitable industry, exploitation and late payment of consideration were common occurrences.[5] One of the most vital contracts in e- sports is the endorsement contract as many players have faced difficulties in such forms of contracts in the past.[6]

Albeit the fact that the e- sports sector has colossally grown within the past decade worldwide and in India, the regulatory system seems to be lackadaisical in this field.[7] India does not have any law on regulating e- sports and only a Private Member Bill titled Sports (Online Gaming and Prevention of Fraud) Bill has been introduced before the Lok Sabha till date.[8]

Learn more about International Sports Law with Enhelion’s Online Law firm certified course by Krida Legal!

  1. E- Sports Player Contracts and the Clauses Covered Under It 

Traditional sports have well- regulated systems with contractual stability.[9] However, the same thing cannot be said about e- sports. Since there is no principal legislation or effective regulation, contract based relationships govern the entire e- sports industry.[10] Therefore, it would not be wrong to infer that contract law plays a pivotal and colossal role in the e- sports industry. Due to the various difficulties faced by players in the past, it is important that certain contract clauses work in their favor and towards the interest of the e- sports game at large. This would naturally mean that e- sports player contracts will have to contain some indispensable content and clauses and these clauses have been enlisted below:[11]

  1. Definitions Clause- The definitions clause is an indispensable clause in any contract. This would also include e- sports player contracts since a definition clause helps in explaining the exact meaning of the terminology or nomenclature used in the contract which can result in reduced risk of future litigation in interpretation related matters as all ambiguities are eliminated after looking at the definitions clause.
  2. Player Services Clause- All the services which are going to be provided by the player have to be clearly specified in the e- sports player contract. This would include all services provided by the player in addition to participating and playing in competitions, leagues or tournaments such as social media promotion and creation and promotion of video content (vlogging). This clause would also have to cover the hours of engagement which is agreed upon by the player and the respective contractor.
  3. Player Obligations Clause- E- sports player contract needs to contain an exhaustive list of obligations which the player is expected to carry out. This would include details in respect of tournaments which the player will participate in, the teams which will accompany and instruct the player, the amount of promotion required to be done by the player in sponsor events, the apparel and accessories to be worn by the player and the hours of training in which the player is expected to indulge. The player obligations clause is pivotal because it results in clear indication of the players obligations preventing any form of exploitation.
  4. Player Restrictions Clause- The player restrictions clause is responsible for explicating the restrictions and limitations which the player has to adhere to. This clause includes factors and concomitants such as restriction from playing in tournaments without the team or the contractor’s permission, restriction to promote competitors’ or their sponsors and for specifying a code of conduct for players to observe during the tenure of the contract.
  5. Non- Disparagement Clause- A non- disparagement clause offers protection to teams and sponsors from defamatory remarks made by a player and is an indispensable part of an e- sports player contract.
  6. Remuneration and Allowances Clause- Details of the remuneration paid or going to be paid to the player has to be specified under this clause. Moreover, all benefits, allowances and bonuses arising in the course of the contract will also have to be specified under this clause.

Learn more about International Sports Law with Enhelion’s Online Law firm certified course by Krida Legal!

  1. Image Rights Clause- This clause covers a unique aspect known as image rights. An image right is the right associated with the player due to his or her skills which a team or the contractor can use during the course of contract.[12] Such image rights include name, appearance, voice, in- game avatar or gamer tag. This clause is paramount since it could lead to the player being additionally compensated or paid for allowing exploitation and utilisation of his or her image rights.
  2. Equipment Clause- The equipment going to be supplied, types and forms, restrictions and permissions to use and similar connected matters have to be covered under the equipment clause. This is mainly because the equipment has a great role to play in the player’s success while participating in a tournament or league or competition.
  3. Revenue Sharing Clause- The revenue sharing clauses contains facts about the amount of extra revenue which will be shared with the players from the sale of merchandise, sale of in- game items, revenue generated out of streaming and prize money earned. Since revenue sharing from additional sources has been a controversy leading to litigation and conflict amongst the team and the players, it is vital that this clause is drafted properly where clear specifications about percentage of revenue sharing is stipulated.
  4. Roster Management Clause- Roster management clause is a key clause in an e- sports player contract. This is mainly because roster management strategy of the team can directly affect a player’s career. Roster management is a process which involves strategising the use of player resources by the team.[13] Therefore, it would contain information such as players going to initiate playing during the tournament, league or competition and the number of substitute players. The time duration after which each substitute will be allowed to play is also covered under the roster management clause of an e- sports player contract.

Learn more about International Sports Law with Enhelion’s Online Law firm certified course by Krida Legal!

  1. Termination and Renewal Clause– The termination and renewal clause is an indispensable clause in an e- sports player contract. This clause contains aspects of compensation in case pre- termination of contract takes place and quantification of value of the remaining contract period of a player in proportion to the investments made by the contractor in such player. Post- termination obligations and duties are also covered under this clause such as deletion of data, return of equipment and non- disparagement. Non- compete and non- acceptance of any other team or contractor’s offer is also covered under this clause. Renewal related aspects are also covered under this clause. This is an important clause to keep the player’s conduct in check and also helps the player in understanding his or her restrictions. Such clauses are also known as buyout clauses.[14]
  2. Loans Clause- Unlike the common meaning assigned to the term “loan”, in an e- sports contract, loans are not even remotely related to bank loans and instead refer to loaning of members to other teams. It may arise that teams may enter into arrangements for exchange and loaning of players. This is why it is important that the loans clause is drafted properly so that any form of legal dispute between teams does not arise. The loans clause contains information such as the duration of loans, functions to be performed by the loaned player, restrictions and permissions to the loanee team and other assignment details.
  3. Governing Law and Disputes Resolution Clause- The governing law and disputes resolution clause affirms the jurisdiction whose law will govern the contract[15] and the court, tribunal or forum which will be preferred in case any sort of dispute arises between the team, sponsors or players. The location of such preferred court, tribunal or forum is also specified under the governing law and disputes resolution clause.
  1. Confidentiality Clause- The confidentiality clause is a pivotal clause in any contract. Similarly, confidentiality clauses have significance in e- sports player contracts as well. This is because aspects such as team plans, resources and strategy are delicate information which could lead to the success or loss of teams in e- sports. Therefore, it is important to protect it through a confidentiality or non- disclosure clause. The scope of confidentiality, permissible disclosure and related aspects are covered under the confidentiality clause of an e- sports player contract.

Learn more about International Sports Law with Enhelion’s Online Law firm certified course by Krida Legal!

  1. Conclusion

 Hence, the above discussions pristinely explicate the role of an e- sports player contract in the smooth conduct and success of e- sports games along with showcasing the clauses which are covered under such forms of contract.

[1] USC Gould School of Law. “eSPorts Law Growth”. USC Gould Online Blog. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://onlinellm.usc.edu/blog/esports-law-growth/>.

[2] Willingham, AJ. “What is eSports? A Look at an Expensive Billion Dollar Industry”. CNN Edition. (27 August 2018). [online]. [last accessed on 15 August 2020]. Available from: <https://edition.cnn.com/2018/08/27/us/esports-what-is-video-game-professional-league-madden-trnd/index.html>.

[3] Ibid.

[4] Ibid 1.

[5] Ibid 1.

[6] Ibid 1.

[7] Verma, Bhumesh and Srivastava Stuti. “Regulating E- Sports- An Opportunity and a Challenge”. RGNUL Student Research Review. (05 July 2019). [online]. [last accessed on 15 August 2020]. Available from: <http://rsrr.in/2019/07/05/regulating-e-sports-an-opportunity-and-a-challenge/>.

[8] Ibid.

[9] Rastogi, Anirudh and Ranjit, Vishakh. “E- Sports Player Contracts: Common Clauses and Potential Legal Issues in India”. Mondaq. (18 June 2020). [online]. [last accessed on 15 August 2020]. Available from: <https://www.mondaq.com/india/gaming/955392/e-sports-player-contracts-common-clauses-and-potential-legal-issues-in-india>.

[10] Ibid.

[11] Ibid.

[12] Vrey, Rogier and Wilms, Tim. “eSports and Image Rights”. CMS Law. (17 August 2017). [online]. [last accessed on 15 August 2020]. Available from: <https://cms.law/en/nld/publication/esports-and-image-rights>.

[13] Roundhill Investments. “E- Sports Glossary”. Roundhill Investments. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://www.roundhillinvestments.com/esports-glossary>.

[14] Lewin, Pete. “Why Every Esports PLayer Needs a Contract”. The ESports Observer. (21 November 2016). [online] [last accessed on 15 August 2020]. Available from: <https://esportsobserver.com/every-esports-player-needs-contract/>.  

[15] Contractbook. “Electronic Sports (eSports) Player Contract (EU)”. Contractbook. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://contractbook.com/templates/electronic-sports-esports-player-information-eu>.

Learn more about International Sports Law with Enhelion’s Online Law firm certified course by Krida Legal!

Categories
Blog

Digital Forensics and Law Enforcement

By: Prabha Devi Ganesan

INTRODUCTION

Digital Forensics is also defined as the science of identifying, preserving, analyzing and reporting of any evidence stored in the digital media like computer, network, server and mobile device. The documents of the evidence which are collected from the storage media computer system or any digital device can be used as evidence in the court. Before performing a forensic investigation a digital forensic examiner must understand various concepts in forensic.

People who can involve at the time of investigation are

  1. First responder
  2. Forensic investigators
  3. Court expert witness
  4. Law enforcement personnel

Process of Digital Forensics

  1. Identification -The first process of digital forensic is that what kind of evidence is present and also identifying the format and finding out where it is stored in the computer or mobile device.
  2. Preservation – It means that all the data is isolated, preserved and secured from using the digital device.
  3. Analysis – Based on the evidence found the fragments of data are reconstructed and the conclusion is being drawn as a conclusion. It also tells that how was it taken place.
  4. Reporting – It is like reconstructing all the crime scene and reviewing it with proper photograph, sketching and mapping the crime scene
  5. Presentation – This is the last process and all the above process are being summarized in this process and explained and put to a conclusion. The terms should be written in a abstracted terminologies

Learn more about Digital Forensics with Enhelion’s Online  certified course certified by Obsidian!

Principles of digital evidence can be gathered digitally from the messages that are sent via phone, email internal history, computer files, images and instant messages. It can also be from the sources like desktop computers, laptops, mobile devices and cloud.

Main objectives

It helps to find the identity of the suspect or the culprit. Reconstructing the procedures at the crime scene may help to ensure that digital evidence which is obtained is not being altered or corrupted. It also helps to identify the evidence at short period of time and also gives overview of any malicious activity involved. It also helps to find the motive behind the crime scene. Process of computer forensic report gives a complete documentation on the investigation process. All the evidence is preserved by following chain of custody.

In case of confiscating a computer, expert forensic examiner must be called. The expert is called to ensure that any criminal actions doesn’t get lost or damaged if the computer is switched off. Pictures of the data that is currently being displayed on the screen and when the computer system is taken into custody when the server system is off because when the server system is off, the data saved can be damaged or disrupted from the services provided to the customers. As soon as the mobile is being confiscated it must be switched off and battery must be removed it is to make sure that the recent call information and cell tower remains unchanged. Once if it is off we shouldn’t turn it on because it may change the information on the device. A remote command can be sent without the knowledge of the investigator if the attacker gets to know about the mobile device is on. The mobile must be kept off because there are many other chances where it can be switch on easily. All the evidence which is collected is kept in FARADAY BAGS or other materials used when isolating a mobile device.  We should turn on flight mode. Turn off WIFI. Turn off Bluetooth. NFC or other communications system must be off. To prevent static electricity it can be kept in a material where there is no passage of electric current like paper bag, paper made out if cardboard and any envelope made up of paper.

Learn more about Digital Forensics with Enhelion’s Online  certified course certified by Obsidian!

LAW ENFORCEMENT

Computer based evidence have common in court proceedings and also it consists of many important information for computer for intelligence than the law enforcement. There is much enforcement of techniques that law enforcement is not being known. Digital forensics is involved in the commercial organizations   in case of any disputes regarding the employment, wrong or fraud investigation and intellectual property theft bankruptcy etc.

CASE LAW 1:  (CREDIT CARD FRAUD)

STATE OF TAMILNADU VS THE MANAGER OF BPO ORGANIZATIONS (BUSINESS PROCESS OUTSOURCING)

FACTS OF CASE: The manager with the fraud control unit of BPO filed a complaint stating that two of his employees has conspired with the credit card holder and manipulated the credit card limit and as a result they cheated the company of INR 0.72 million. After the investigation they have seized six mobile phones, imported wrist watches, jewelers, credit cards and leather accessories all worth of INR0.3 million and cash INR 25000. They also informed the company of the security lapses in their software so that cases like this could not be repeated in the future. This case has won the second runner-up position for India Cyber Cop Award for its investigating. It was also stated that the case was remarkable by the investigating team of the business process and its use in collecting digital evidence.

CASE LAW 2: (BLACKMAILING)

STATE OF MAHARASTRA VS THE NRI (NON-RESIDENT INDIAN)

FACTS OF THE CASE: the accused was a NRI was working in Dubai she posed to a young girl living in Kolkata to enter into Han email correspondence. The accused started corresponding with the complainant using different email IDs with different female names which made the complainant believe that he was corresponding with different girls. Later on the accused asked for money and gifts and also sexual favors from the girls whom he was corresponding with. The accused started blackmailing the complainant referring to the email exchanges and she was made to believe that one of the girl committed suicide and sent fake copies of high court of Calcutta he also paid the bribe for the officials who supposedly investigating and compensate the family. This case won the first runner-up position India Cyber Cop Award for its investigating

Coming to the network forensics it involves HEX CODES AND ASCII CODES

ASCII CODES – AMERICAN STANDARD CODE FOR INFORMATION INETRCHANGE

When we take forensics it is also important to know about the number system fundamental. It is for the understanding the machine. There are 4 types they are binary, octal, decimal and hexadecimal

Binary number

Base -2

Symbols- (1-0)

Octal number

Base – 8

Digits – (0-7)

Decimal number

Base -10

Standard number is always 10

Hexadecimal number

Base – 16

Digits – (0-9)

Characters – A to f

OFFSET – It indicates the distance between the starting or beginning of the object and a given element or point with the same object.

FILE SYSTEM FORENSICS

The Identification, collection and analysis of digital evidence from different types of storage media is known as FILE SYSTEM FORENSICS. There are many concepts that relates to the file system

 

Firstly,

Hard disk – data can be hidden on the maintenance track or it can be protected or preserved in a protected area on the hard disk which is also known as evidence collection tool

File allocation table (FAT) and Master File table (MFT) in New Technology File System (NTFS) are to keep a track of files present in the storage media

Deleted files are removed from the file system table even though it looks like it has been deleted from the hard disk and looks like it doesn’t appear in the hard disk anymore and the clusters which are being deleted allows the other files to save or store data. There are different ways to recover the data using certain techniques we can use hex format   when we are using hex format we should start from the starting or beginning and end of the file. We should copy it in a text file. After saving it in a text file it has to be saved in an appropriate file extension.

PARTITION TABLE

It is the Master boot record. It enables a computer system to know how the hard drive is being organized particular partition are being erased but still it is being stored in the hard drive.

 

SLACK SPACE

The data is hidden in a random data is called ram slack found left over at the end of the volume. If the data are being deleted and if the clusters are not being stored it can be used in to store the data, and also the data which is deleted can be restored. It is mainly to hide the data in the storage media in a computer.

Learn more about Digital Forensics with Enhelion’s Online  certified course certified by Obsidian!

FREE SPACE

The space which is being created are being obtained after the deletion of the file which is been deleted from the original partition is called free space

FAKED BAD CLUSTERS

The data can also be stored in cluster that are named as bad and master file table which is names as badclus contains the information about the bad clusters present in NTFS file system. Size of file system is equivalent to the size of the volume. It is used to hide the size of the data stored on volume by a suspect

FAT 32 – 1996

It is mainly used in DOS and windows operating system before windows XP. 32 in the FAT32 represent the 32 bit number to depict cluster value. It accommodates 2^32. Newer hard drive don’t use FAT32

It gives a idea about where a particular file is stored it is also considered to be very simple when compared to NTFS file system.

NTFS

It’s a newer file system than FAT32

It is being used in Window NT & 2006

It has 512 byte record called boot record

It is used to read the information regarding the partition present on the file system and other relevant information that is used by the operating system to load properly

CONCLUSION

Digital forensic examination of electronic system has end up in a great success in the analysis of cyber and computer assisted crime and also it has equivalent importance on the appropriate incident management capabilities to handle misuse of systems.

Learn more about Digital Forensics with Enhelion’s Online  certified course certified by Obsidian!

Categories
Blog

Laws relating to Private Equity in the Construction Industry

By: Ananyaa Jha

Introduction

The capital investment in a business plays a major role in determining its long-term sustainability and success and there are various sources available, one of which is private equity, which has gained momentum since the past two decades in India, especially owning to the boom of the IT sector. At present the private equity (PE) firms are showing tremendous growth, the funds are distributed evenly across different sectors to mitigate the risk-factor. PE is a capital form of investment in a company that is not listed or traded publicly.

The paper discusses the law governing private equity in India along with how does a PE investment work. It also throws light upon the increasing demand for last-mile funding in construction industry and how private equity can come to the rescue.

Private Equity & its’ Importance?

The term private equity refers to capital investment in an entity that isn’t publicly traded. It’s an interest or ownership in a company that isn’t publicly listed. Private Equity investment can be made in a public company with the objective of making them private and delisting them from the stock exchange platform. Private Equity investors gain equity in return for the capital they invest in the company. Private Equity investors are generally institutional investors (such as banks, hedge funds, pension funds etc.) or individuals having a high net worth, or private equity firms comprising of accredited investors.[1]

Private Equity is different than venture capital as the latter is a funding provided to start-ups or entities which are in the nascent stages which showcase a lucrative growth in the long run, whereas private equity is more commonly invested in mature businesses that have already been established but are unable to generate profits due to poor performance & lack of efficiency, and are in-turn failing.  Private Equities play an active role in the functioning of an entity in order to improve the performance and help steer the company in the direction of increased revenues so that upon selling the investment and exiting from the entity, a generous amount of profit can be earned.[2]

Learn more about Private Equity Law in India with Enhelion’s Online Law firm certified course certified by ANB Legal Advocates and Solicitors!

PE is a crucial form of investment as along with providing the required liquidity in a project, it stimulates entrepreneurship & increases shareholders value, in turn promoting job creation and fuelling economic growth. PE leans towards the riskier side of an investment scale as there is high likelihood of a company failing to perform. It involves a high level of long-term risk in order to yield high returns. Various strategies of PE investment include but is not limited to- growth equity funds, leveraged buyouts, venture capital investments, certain real estate investment amongst others.

Construction Industry & Private Equity

Construction industry and private equity have joined hands for the past many years, coming together to fund significant development projects worldwide. In the absence of PE firms, a lot of real estate development projects wouldn’t see the light of day or wouldn’t have reached the finish line. In this industry, the PE firms make available the required funds to help a project start and finish. These firms have a major role to play in the development of real estate.

Development of the real estate in any country is a costly affair, sometimes requiring the support of foreign investors too. The entire project can cost upwards of 10 to 100 crores. In majority, the development firms fall short of the necessary amount to fund the project in its entirety. This is where PE firms come into the picture. Usually, a banking institution will cover a hefty amount of the costs yet it leaves approximately 20-35% to be funded by the developers, which could still be a large amount, unable to be funded by the developers on their own, they may require additional help funding their project, bringing in private equity.[3]

If a PE firm chooses to invest in a real estate development project, they will have a major role to play in the process of decision-making. Basically, the PE firm/investor are regarded as either a majority or a part-owner of the property in which they are investing, owing to the large scale of investment in the project, they get entitled to a considerable scale of ownership of said project, which entitles them to have substantial influence in all the decisions to be made. They will provide their input throughout the construction process. The construction firm, in all becomes indebted to the PE firm.

Learn more about Private Equity Law in India with Enhelion’s Online Law firm certified course certified by ANB Legal Advocates and Solicitors!

The year 2020 has witnessed a drop in PE investments because of the novel coronavirus disease’s outbreak (COVID-19 pandemic). The chance of specific sectors like healthcare, technology, e-commerce among a few others currently bringing about investment opportunities exists[4].

The real estate industry has taken a major hit due to the ongoing COVID-19 pandemic and the end of first quarter (March) has shown the sector to reach an all-time low. Commercial as well as residential sectors have been hit severely.[5] The already ailing residential sector in terms of poor demand is witnessing a hard time to launch any new projects or to even finish the ongoing projects due to shortage of labour and continuous construction stoppage.[6]

The slowdown in the sector will remain even post COVID-19 crisis and as lockdowns relaxation continues nationwide, since the construction sector is faced with a critical working capital crisis which holds utmost importance to restart the business & sustain it successfully. Many have their hopes pinned on intervention by the government to help recover the loss created by the pandemic. However, private equity can prove to be of aid in this current scenario.

The regulatory framework revolving around PE funds in India

In India, commonly the PE funds are established as trusts & in accordance with SEBI (Alternative Investment Funds) Regulations, 2012, are registered as an alternative investment fund (AIF). Although, only a company, trust and limited liability partnership are available to be used as the legal vehicle for the PE funds. Companies Act, 2013 provides for PE funds to be established as companies but this method is not used much due to the lax compliance required in comparison to trust structures and in addition, the unclear precedents for fund-raising. According to the Limited Liability Partnership (LLP) Act, 2008, the alternative investment funds can be instituted as LLPs, however, the LLPs use for PE funds is quite rare.[7] The regulatory framework:

  1. SEBI (AIF) Regulations, 2012

SEBI via notification dated May 21, 2012, repealed & replaced 1996 Venture Capital Funds Regulations of SEBI with the Alternative Investment Funds Regulations of 2012, The AIF Regulations were intended to provide for unregulated funds & extends its principles in this regard along with increasing stability and accountability of the market. There are 3 categories along which these AIFs are spread. Category II categorizes such AIFs which don’t come under the ambit of Category I & III. According to regulations, PE funds get registered as Category II. The purpose of preparing these regulations was to create a standard structure in order to govern private set of funds & investment vehicles to improve the channelizing of the funds.

SEBI has recently issued a circular that introduces various notable changes to the legal framework that currently exists. To strengthen the disclosures required, SEBI directed compulsory Performance Benchmarking along with standardizing PPM, that’s the prime document for disclosing all the relevant information to the potential investors, & Annual Audits for the alternative investment funds. On 1st March, 2020, all these changes have been enforced.

  1. The Companies Act, 2013

The Companies Act, 2013 brought with it a required overhaul for companies’ governance in India. The Act of 2013 brought major changes by placing regulatory responsibility, accountability & heavy compliance policies on private companies. Private companies take the ‘private placement’ route to raise capital as they aren’t permitted to offer securities to the general public & raise capital, so they have to take a different approach, wherein the securities are issued to only a selected no. of private individuals. Section 42 of the Act governs the ‘private placement’ process and all such private companies have to comply with the provisions contained in the section. The Section plainly states an invitation or an offer can’t be made to over 200[8] individuals, excluding the securities that are offered under ESOP[9] & the Qualified Institutional Buyers, but such immense rules in respect of PE funds are inapt because regulating the investments that are done through PE funds do not necessitate large compliances because the securities aren’t offered to the public. [10]

Learn more about Private Equity Law in India with Enhelion’s Online Law firm certified course certified by ANB Legal Advocates and Solicitors!

The working of PE Investment

Elucidated below is a guideline which the investors/firms need to follow when they invest in private equity of an entity:

  • Raising Capital & Share-Purchase: The Private Equity investment process starts with chalking out an acquisition plan, & ways in which capital for it could be raised, that encompasses decisions based on different kinds of financing used for raising capital, etc, along with conducting due diligence. As soon as the acquisition deal closes, the management duties of the firm that’s been acquired becomes the responsibility of PE investors.
  • The Acquired Company’s Restructuring: The subsequent move is restructuring of the firm required to increase its productivity by managing the company through improving operations & reducing costs. It covers a wide range of crucial decisions about the operations, the expansion, the profitability, the strategy to be adopted, along with the company’s growth model. The involvement level will be directly proportional to the size of their investment.[11]
  • Selling/Exiting the Company: Generally, the end mission of PE firms is putting the company on sale/exiting at a sizeable profit, which usually takes place after around 3 to 7 successful years after initial investment, although the number of years may vary depending on specific strategic circumstances. After the acquired company begins profiting, & continues to show consistent growth, it is the right time to sell it as there exists high probability of the promoters gaining enormous profits from the sale of the entity. The PE investors get their share of the profits and enjoy a good return.

The demand for last-mile funding in Construction Industry

PE firms have been on the look out to take advantage out of the increasing need of last-mile funding by the construction/real-estate developers because of the on-going stagnation in the residential sector which has worsened due to the liquidity crisis that is existent in the country. Many of the PE investors are keeping an eye for offering capital out of existing funds for construction projects which are in the final or late stage & also establishing platforms in order to finance such real estate projects. [12]

After Real Estate (Regulations & Development) Act (RERA) was implemented in 2017, the developers since then have focused on completing the construction projects & so the demand for funding capital in the late-stages has soared. The banks unwillingness to refinance loan in addition to the liquidity crisis in the financial market has elevated the demand for PE funds because a substantial number of late-stage projects are unable to finish due to lack of capital.

Given the scenario, influx of last-mile capital funding coming in to complete projects is very positively transformative for all the concerned stakeholders. The benefit of last-mile funding is that comparatively it’s a less risky approach as these projects have the necessary approvals, the construction has begun & to some extent have started bringing about sales, so all of this helps to mitigate the risk involved, which provides better chances of reward & hence, investors interests piques.

The PE firms’ interest in the real estate sector is growing at the same time when the government is taking initiative to revive the sector. The government in 2019 announced the establishment of a Rs 25,000 crore AIF in respect of last-mile funding to get the stalled residential projects back on track, because sales have been on the declining scale since 2014, except a marginal rise in the year 2016, but the demonetisation decision by the government & goods and services tax (GST) implementation worsened the situation in 2017 & since the recovery in the sector is moving very slowly.

Conclusion

Private Equity and the construction sector haven’t always connected as the PE investors have by & large steered clear of the construction industry owing to a great deal of inherent risks, like the business having a cyclic nature, professional management, succession planning along with the unrealised expectations in respect of financial requirements of the construction business, i.e., bonding, & the owners of construction companies have been apprehensive of outside investors. However, that perception is changing as PE investors will bring not just financial aid but act as a strategic partner, unlike the other sources of capital & work with the business & make a sustainable model by keeping a long-term vision, thereby maximizing value. The PE firms will bring in deep understanding of the construction industry & help the companies grow by investing not just capital but an array of other valuable requirements for the company to grow.[13]

[1] https://www.investopedia.com/articles/financial-careers/09/private-equity.asp, (Last Visited at 9:00 AM on 6th November, 2020).

[2] https://www.investopedia.com/ask/answers/020415/what-difference-between-private-equity-and-venture-capital.asp#:~:text=Private%20equity%20is%20capital%20invested,potential%20for%20long%2Dterm%20growth., (Last Visited at 10:00 AM on 6th November, 2020).

[3] https://workwithfocus.com/news/private-equitys-role-in-real-estate-development-construction/, Last Visited at 5 PM on 6th November, 2020.

[4] Rukmini Rao, “Coronavirus: E-commerce, SaaS and healthcare to attract more PE funding, says report”, Business Today, May 14, 2020, available at https://www.businesstoday.in/current/corporate/coronavirus-e-commerce-saas-and-healthcare-to-attract-more-pe-funding-says-report/story/403823.html (last visited at 2 PM on 6th November, 2002).

[5] Knight Frank India Survey.

[6] Kailash Babar, “Covid-19 impact: Real estate sentiments hit lowest level”, The Economic Times, April 16, 2020, available at https://economictimes.indiatimes.com/wealth/real-estate/covid-19-impact-real-estate-sentiments-hit-lowest-level/articleshow/75175857.cms?from=mdr (last visited at 7 PM on 6th November, 2020).

[7] Pratish Kumar, Sumitava Basu and Divya Dhage, “Private Equity in India: market and regulatory overview”, available at https://uk.practicallaw.thomsonreuters.com/8-504-2425?transitionType=Default&contextData=(sc.Default)&firstPage=true, (last visited at 11:00 AM on 6th November, 2020).

[8]  Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014.

[9] Employee Stock Option Plan

[10] B&B Associates, “Private Equity in India: Evolution and Legal Overview”, July 31, 2020, available at: https://bnblegal.com/article/private-equity-in-india-evolution-and-legal-overview/, (last visited at 9:00 PM on 8th November, 2020).

[11] https://corporatefinanceinstitute.com/resources/careers/companies/equity-firm/, last visited at 11:00 AM on 8th November, 2020.

[12] Bidya Sapam, “Private equity firms sense big opportunity in last-mile real estate funding”, December 3, 2019, available at: https://www.livemint.com/industry/infrastructure/private-equity-firms-sense-big-opportunity-in-last-mile-real-estate-funding-11575311313757.html, (Last Visited at 10 AM on 9th November, 2020).

[13] https://www.cohnreznick.com/insights/private-equity-builds-bridges-construction-industry#:~:text=Private%20equity%20brings%20a%20lot,a%20company%20needs%20to%20grow., last visited at 11:30 AM on 10th November, 2020.

Learn more about Private Equity Law in India with Enhelion’s Online Law firm certified course certified by ANB Legal Advocates and Solicitors!

Categories
Blog

Analysis of Laws Relating To Criminal Procedure In India, USA And UAE

By: Divyashree Dhumal

The Criminal Justice System is designed to delivers justice for all. Which also means protecting the innocent, convicting criminal and providing fair trails. The Code of Criminal Procedure is provided with the rules and regulations that has to be followed by the Court and Police. The Code of Criminal Procedure does not define what are violations of laws but rather set out procedure on how a criminal case should be handled. The Code of Criminal Procedure is important for the Defendant.  The Code of Criminal Procedure guarantee’s constitutional due process to those individuals charged with crime.

It is an objective of the Code to provide an opportunity of fair trail to the accused person and to make sure that the right of the accused is not compromised. The code makes sure that there is no delay made in the investigation and ensures fair trial. It also ensures the attendance of any person who is related to with the case through the means of warrants, summons, proclamation and attachments of the property. The Code provides a detailed scheme for the working of various functionaries of the state to help and administration of the justice.

Learn more about Advanced Certificate on Civil Procedural Laws in India with Enhelion’s Online Law firm certified course certified by Legaleye Advocates and Legal Consultants!

The Code of Criminal Procedure in India.[1]

Earlier there was no constant procedure for the Criminal Justice system in India. In 1861, the Code of Criminal Procedure was passed by the British Government. It was first created in the year 1882 and then amended in the year 1898.

In (iqbal v state of maharashtra, 1975) the Supreme Court said, “It is the procedure that spells much difference between the rule of law and the rule of the whim and caprice.”

The Code of the criminal procedure is called a Criminal Procedure Code (CrPC). It is Substantive criminal law in India. The act contains 484 sections further divided into 37 chapters, 2 schedules, and 56 forms. It provides detailed information about the investigation of crime, apprehension of a suspected person, evidence collection, determination of the guilt, and determination of punishment to the offenders. The Code describes all the offenses that are present in the Indian Penal Code on how should they be dealt with.

The CrPC provides uniform sets of criminal courts throughout the territory of India by conferring jurisdictions, powers, and functions. The Code separates the Judiciary from the Executive, which enables the state to work differently without the interference of any other organ of the state. The Judicial Magistrate works under the High Court of their respective States. The Judicial Hierarchy is represented by the Chief Judicial Magistrate and first- and second-class Judicial Magistrate, District Magistrate and subordinate magistrate. Earlier jury system was followed now the jury system has been abolished.

Under the Code of Procedure, every person is entitled to Fair trail and hearing from an independent and impartial tribunal. The Accused is considered to be innocent until proven guilty. The Accused has the right to be represented by a counsel. In case, The Accused is poor and in no condition to appoint a counsel then the court provides free legal aid. Some Special provision are provided under section 313,315 and 164(2), etc. made for protecting the rights of the Accused. Special provision is made for Protection of the accused person. Supreme court of India has also given guidelines with respect of right of the accused person (D.K. Basu vs State of West Bengal , AIR 1997).

Learn more about Advanced Certificate on Civil Procedural Laws in India with Enhelion’s Online Law firm certified course certified by Legaleye Advocates and Legal Consultants!

The Procedure of the Summary cases is same as the Summons cases except where it is provided. In summons cases the offences are punishable with imprisonment up to two years. Additional revisional jurisdiction powers are also given to the session’s courts by the High Court. The revision power given to the Superior Courts cannot be exercised by the Interlocutory orders. An appeal by the state in case of acquittal can be only filed only after obtaining leave from the High court. The Court has the power punish the blatant matters in case of perjury on the spot. Public Prosecutors and assistant public prosecutors are systematized and qualification is prescribed for the same. If a case is related to the central government which has to be removed then the consent of the government has to be taken.

Code of Criminal Procedure in USA[2]

There is federative structure in the United States, the federal government and each state has their own criminal justice processes, federal criminal procedure law and 50 different state jurisdictions. The pre-trial (investigatory) process and the trial (adjudicatory) process are the two parts of criminal law procedure.

In the first century Supreme Court of United states had no constitutional criminal procedure decisions. There were two reason for this and professor Akhil Amar pointed out two reason for that: first in (Barron v. Baltimore , 1833) the court decision meant that then federal constitution did not apply in state proceedings until the incorporation of the bill of rights after the fourteenth Amendment. Second, general appellate jurisdiction over federal criminal cases until 1891 was lacked by the court. The Criminal Procedure of USA has been derived from several source of law. The criminal procedure is different from civil procedures.

Under 3 article, 2 section, clause 3 provide that in trail of crimes except in impeachment case, such trail shall be held in the states where the said crime has been committed and if not committed in that state then at a place or places as the congress by law suggests and also there shall be jury for these cases. Fifth amendment is a relevant part of the United States Constitution, which says that no person shall be answerable for a capital, or infamous crime, unless on a presentment or indictment of grand jury, except in cases of land or naval forces, or Militia,  when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

Sixth amendment provides rights for the accused person such as in a criminal prosecution the accused person has right to speedy and public trail, with an impartial jury of the State and District where the crime has been committed. Eighth amendment provides that excessive bail shall not be required. Fourteenth amendment provides that no person shall be deprived of life, liberty or property without due process of law nor deny any person within the jurisdiction for equal protection of the law. Burden of proof always lies on the prosecution in a criminal trial which means that the Prosecution has to prove beyond the reasonable doubt that the defendant is liable. As there is no burden on the defendant. The Defendant has to only prove that it reasonably possible that the defendant did not commit the crime. Once both the sides have presented their cases then the case goes to the jury. The jury is made aware of all the legal rules which may affect the decision. the jury then deliberate in the jury room about whether the defendant is Guilty or not of the particular crime.

Learn more about Advanced Certificate on Civil Procedural Laws in India with Enhelion’s Online Law firm certified course certified by Legaleye Advocates and Legal Consultants!

At that point the jury is not allowed to discuss about it to anyone other than the other jury members or even read about the cases. Once the jury has decided it is called as verdict. In case the defendant is found guilty the sentence of the defendant is done by the Judge. After the sentence, the case enters the post-conviction stage and the defendant has the right to appeal to the Higher Court. American appellate does not retry the cases. In USA Plea bargaining takes place even in most serious crime such as homicide. Plea bargaining becomes impossible when the defendant is charged or indicted for the crime. After the defendant has plead guilty, the court recalls its rights. The parties participate in a discussion in which they try to agree on a particular sentence range and once they have reached to an agreement the case is disclosed in an open court. the court has the authority whether to accept the plea or not.

Criminal Procedure in UAE

The Initial step in a Criminal action for the victim is to file a complaint against the offender to the police. The complaint should set out the details of the incident that had occurred and the series of events pertaining to the criminal offences. The complaint can be in formal writing or by the way of oral statement before the police which is recorded in Arabic and then signed by the complainant. The complainant has to file the complaint before police station which has the jurisdiction. The complainant has the authority to call a witness who can testify against the offender which will be in his favour. Following the complaint, the police will have to get in contact with the accused and take his/her statement. During this whole process the accused can bring in potential witnesses who can testify for the accused.

The police have to report the case to the relevant department within the police station that are responsible for opining and reviewing the complaint. Once the police have finalized their task after taking the statements of all the parties, the complaint is given to the police prosecutor, a judicial authority empowered to refers cases to the Court. The Criminal trial in Arabic, and all statements are taken in or translated into Arabic. The Court provides the accused with sworn translator. Cases are heard before judges only, a closed setting. Only the legal counsel, the defence counsel and the parties to the case, along with the witnesses that may be haven been called are allowed in the chambers. In case if a minor is involved then parents and legal guardians can attend. There are no jury trails. The duration of a trail may vary and it depends on the emirate in which you are tried. There is no limit to the duration of trail. The punishment under U.A.E penal code are divided into two categories, sharia- based and Chastisement.

Conclusion

There is not much difference in the criminal procedure around the world and how they are enforced and applied. The Criminal trail works in the same way. But the criminal procedure in USA and India are much detailed and elaborated then UAE Criminal Procedure. The procedure of the investigation by police are also the same.

[1] https://en.wikipedia.org/

[2] https://en.wikipedia.org/wiki/United_States_constitutional_criminal_procedure

Learn more about Advanced Certificate on Civil Procedural Laws in India with Enhelion’s Online Law firm certified course certified by Legaleye Advocates and Legal Consultants!