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Regulation of VC funding in India: A critical analysis

This blog post has been authored by Ms. Prerna Kashyap


The venture capital industry evolved in the late 1980s in India. Back in 1973, a committee on Development of Small and Medium Enterprises highlighted the need to foster venture capital as a source of funding new entrepreneurs and technology. The Government of India took a policy initiative and announced guidelines for venture capital funds (VCFs) in 1988 on the basis of a study undertaken by the World Bank. Slowly and gradually various rules and regulations were made to deal with the venture capital funding in India.[1]


Venture capital (VC) funds start-ups and early-stage emerging companies having significant potential for growth[2] but involves high risk.

Section 2(z) and 2(za) of the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012 (“AIF Regulations”) defines “venture capital fund” as an “Alternative Investment Fund which invests primarily in unlisted securities of start-ups, emerging or early-stage venture capital undertakings mainly involved in new products, new services, technology or intellectual property right based activities or a new business model and shall include an angel fund as defined under Chapter III-A” and “venture capital undertaking” as “a domestic company which is not listed on a recognised stock exchange at the time of making investments” respectively.


Securities and Exchange Board of India (SEBI) is the nodal regulator for VCFs to provide a uniform, hassle free, single window regulatory framework. Various regulations such as the SEBI (Venture Capital Funds) Regulations, 1996 (“VCF Regulations”) and the SEBI (Foreign Venture Capital Investor) Regulations, 2000 have been issued on the recommendation of the Chandrasekhar committee fostering growth in the industry. As per the SEBI report relating to activities of VCFs until June this year, a total of Rs. 22,563.88 crores VCF has been raised.[3]


AIF Regulations has been brought in order to replace the VCF Regulations and has been notified vide PR no. 62/2012[4] dated May 12, 2012. As per the AIF regulations, the funds registered as VCF under VCF Regulations shall continue to be regulated by the same till the existing fund or scheme managed by the fund is wound up and such funds shall not launch any new scheme after notification of these regulations. VCF may seek re-registration, subject to approval of their investors.[5]

Registration of Venture Capital Fund

VCFs are included in “Category I Alternative Investment Fund”[6]. No entity or person shall act as a VCF unless it has obtained a certificate of registration from the SEBI. Form ‘A’ lays down the instructions for the application for the grant of the certificate. Eligibility criteria are prescribed for the purpose of the grant of certificate to an applicant. Vide Explanation[7] of sub- clause (a) of sub- regulation (4) of regulation 3 of the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012, states that a VCF can be organized in the form of a trust or a company.

Investment Conditions and Restrictions

The AIF Regulations specify that VCFs shall state investment strategy and any material alteration to the fund strategy shall be made with the consent of unit holders; they shall raise funds through private placement by issue of placement memorandum and may launch schemes subject to filing of placement memorandum. The minimum tenure is prescribed as 3 years. Units of close- ended VCFs may be listed on the stock exchange.[8]

VCFs may invest in securities of companies incorporated outside India subject to conditions issued by the Reserve Bank of India and the SEBI. They shall invest not more than 25% of investable funds in an investee company whereas a large value fund for an accredited investor may invest up to 50% of investable funds in an investee company. They shall not offer their units to other VCFs if they are investing in units of other VCFs.

If a VCF is investing in associates/ units of VCFs managed by manager/ sponsor/by associates, approval of 75% of investors by value for investment is required. The terms of co-investment by a manager/ sponsor/ co-investor, shall not be more favourable than the terms of investment of the VCF. Un-invested portion of investable funds and divestment proceeds pending for distribution to investors shall be invested as prescribed in regulations.

Investment by VCFs in the shares of entities listed on institutional trading platforms shall be deemed to be investment in ‘unlisted securities’ for the purpose of these regulations. They shall invest in investee companies, venture capital undertaking (VCUs), special purpose vehicles, limited liability partnerships (LLPs) in units of other Category I AIFs of the same sub category or in units of Category II AIFs as specified in this regulation. They shall not borrow funds & shall not engage in leverage except for meeting temporary requirements. They shall invest at least 75% of the investable funds in unlisted equity shares or equity linked instruments of VCU or in companies listed or proposed to be listed on SME exchange and this shall be achieved by the VCFs by the end of its life cycle. For the purpose of market making, the VCF is required to enter an agreement with a merchant banker.[9]

Angel fund is a sub-category of VCF that raises funds from angel investors and invests in accordance with the prescribed provisions[10].

VCFs are exempted from certain provisions of Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015 in respect of companies listed or proposed to be listed on SME exchange.[11]

Registration of Foreign Venture Capital Investors

The applicant shall make an application to the Board in Form A along with the application fee.[12] The applicant should be granted the necessary permission by the RBI to make investments in India. Eligibility criteria are prescribed for the purpose of the grant of certificate to an applicant.[13]

Investment Conditions and Restrictions for a Foreign Venture Capital Investor

Investor shall disclose his investment strategy and it can invest all his funds in one VCF.

A Foreign Venture Capital Investor (FVCI) shall make investment in at least 66.67% of the investible funds in unlisted equity shares or equity linked instruments of VCUs or make an investment in not more than 33.33% of the investible funds by way of:

  • subscription to initial public offer of a VCU proposed to be listed;
  • debt instrument of a VCU in which the FVCI already has equity investment;
  • preferential allotment of equity shares of a listed company subject to 1 year lock-in period.[14]
Obligations of a Foreign Venture Capital Investor

FVCI shall maintain books of account and records for a period of 8 years. It shall appoint a custodian for custody of the securities who shall monitor the investment. It shall furnish periodic reports to the SEBI and information as required/ called for by the SEBI.  It shall appoint a branch of a bank approved as designated bank by the RBI for opening of the foreign currency denominated account.[15]


The SEBI master circular and circulars ensure an effective regulatory framework for VCFs and the SEBI. The SEBI specified guidelines stating that AIFs may invest in securities of companies incorporated outside India subject to the condition that they may invest in equity and equity linked instruments only of off-shore VCUs, subject to overall limit of USD 1500 million and mandating benchmarking of the performance of the VCFs which will help investors in assessing the performance of the VCF industry.[16]

In regard to the validity period of approval granted by the SEBI to VCFs for overseas investment, on recommendation of the Alternative Investments Policy Advisory Committee, it has been decided to reduce the time limit from 6 months to 4 months.[17]

VCFs are required to file an application to SEBI for allocation of overseas investment limit. In relation to an overseas investee company a VCF shall:[18]

  • Invest in such a company, which is incorporated in a country whose securities market regulator is a signatory to the International Organization of Securities Commission’s Multilateral Memorandum of Understanding (MoU) or a signatory to the bilateral MoU with the SEBI.
  • Not invest in a company, which is incorporated in a country identified in the public statement of the Financial Action Task Force.

VCFs shall furnish the sale/divestment details of the overseas investments to the SEBI in the format prescribed and an undertaking for the proposed investment shall be submitted to the SEBI by the trustee/board/designated partners of the VCFs.[19]


The regulations provide that FVCIs may contribute to meet the shortfall in promoters’ minimum contribution, subject to a maximum of 10% of the post-issue capital without being identified as promoter(s)[20] and contributions made by FVCIs in specified securities shall be locked-in for a period of 18 months from the date of allotment of the further public offer.[21]

Exemption in case of substantial acquisition of shares or voting rights

A VCF or a FVCI registered with the SEBI, by promoters of the target company pursuant to an agreement between such VCF or FVCI and such promoters, who has acquired and holds shares or voting rights(VRs) and exercises 25% or more of the VRs in the target company but less than the maximum permissible non-public shareholding[22], shall be exempt from the obligation to make an open offer[23] to acquire within any financial year additional shares or VRs in the company and exercise more than 5% of the VRs.

A VCF established in the form of a trust/ company/ body corporate and registered under the VCF Regulations is not considered as an investment vehicle for the purpose of the Foreign Exchange Management (Non-debt Instruments) Rules, 2019.[24]

Applicability of Angel Tax

Recently, the Central Board of Direct Taxes has issued an amended Rule 11UA (2) of the Income Tax Rules and it provides that for Section 56(2)(viib) of the IT Act, where a taxpayer is a VCU who has received consideration from the issue of unquoted equity shares to a VCF, the price of such equity shares corresponding to such consideration be taken as the fair market value (FMV) of the equity shares for resident and non-resident investors provided that:

  • the consideration from such FMV does not exceed the aggregate consideration received from a VCF; and
  • the consideration received by the undertaking from a VCF, within 90 days before or after the date of share issuance.[25]

Intimation of the winding up of the VCF should be given to the SEBI. VCF can be wound up in the following circumstances:[26]

If the VCF is set up as a trust, it shall be wound up:

  • When the tenure of the VCF or the scheme launched by the VCF, as mentioned in the placement memorandum is over; or
  • If in the opinion of the trustees and in the interest of the investors the VCF should be wound up; or
  • If 75% of the investors in the VCF pass a resolution at a meeting that the VCF should be wound up.

If the VCF is set up as a LLP, it shall be wound up as per the Limited Liability Partnership Act, 2008. If the VCF is set up as a company, it shall be wound up in accordance with the provisions of the Companies Act, 1956. If the VCF is set up as a body corporate, it shall be wound up as per the statute under which it is constituted.


India has come a long way in the journey of venture capital. With the increase in the number of start-ups, more and more investment opportunities are coming up in the sectors such as biopharmaceuticals, software, financial institutions and investors and so on. This shows the significance of flexible and up-to-date regulations incorporating latest developments. The Securities and Exchange Board of India issues various circulars and directions supplementing the current regulations and this helps in regulating and facilitating the influx of venture capital investments made by residents and non- residents in India.

[1] Report of Advisory Committee on Venture Capital.PDF (

[2] Rebecca Baldridge, Understanding Venture Capital, dated 8 June, 2023; accessed on 17 October, 2023.

[3] SEBI | Data relating to activities of Alternative Investment Funds (AIFs), accessed on 14 October, 2023.

[4] SEBI | SEBI notifies SEBI (Alternative Investment Funds) Regulations 2012, accessed on 14 October, 2023.

[5] Sub- regulation (2) of regulation 3 of the SEBI (Alternative Investment Funds) Regulations, 2012.

[6] Clause (a) of sub- regulation (4) of regulation 3 of the SEBI (Alternative Investment Funds) Regulations, 2012.

[7] Explanation.─” For the purpose of this clause, Alternative Investment Funds which are generally perceived to have positive spillover effects on economy and for which the Board or Government of India or other regulators in India might consider providing incentives or concessions shall be included and such funds which are formed as trusts or companies shall be construed as “venture capital company” or “venture capital fund” as specified under sub-section (23FB) of Section 10 of the Income Tax Act, 1961.”

[8] Chapter II, Registration of Alternative Investment Funds of the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012.


[9] Ibid.

[10] Sub- regulation (1) of Regulation 19A of the SEBI (Alternative Investment Funds) Regulations, 2012.

[11] Sub- clause (c) of sub- regulation (3) of regulation 16 of the SEBI (Alternative Investment Funds) Regulations, 2012.

[12] Regulation 3 of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[13] Regulation 4 of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[14] Regulation 11 of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[15] Chapter IV of the General Obligations and Responsibilities of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[16] SEBI Master Circular No. SEBI/HO/AFD/PoD1/P/CIR/2023/130 dated July 31, 2023, available at:, accessed on 13 October, 2023.

[17] SEBI Circular No. SEBI/HO/AFD/PoD/CIR/P/2023/137 dated August 04, 2023, available at:, accessed on 17 October, 2023.

[18] SEBI Circular No. SEBI/HO/AFD-1/PoD/CIR/P/2022/108 dated August 17, 2023, available at: SEBI | Guidelines for overseas investment by Alternative Investment Funds (AIFs) / Venture Capital Funds (VCFs), accessed on 14 October, 2023.

[19] Ibid.

[20] Sub-regulation (1) of regulation 14 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations 2018.

[21] Clause (a) of regulation 115 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations 2018.

[22] Sub- regulation (2) of regulation 3 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

[23] Sub- clause (f) of sub- regulation (4) of regulation 10 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.


[24] Reserve Bank of India – Master Directions (

[25] Alerts: Direct Tax Alert – CBDT notifies amended Valuation Rules in respect of Angel tax, available on Direct Tax Alert – CBDT notifies amended Valuation Rules in respect of Angel tax – BDO, accessed on 18 October, 2023.

[26] Regulation 29 of the SEBI (Alternative Investment Funds) Regulations, 2012.



Regulation of Cross-Border Mergers and Acquisitions in India, UK and USA

This Blog has been written by S. Vishal Varma


The words “mergers” and “acquisitions” refer to the combination of businesses or assets via different kinds of transactions. Mergers and acquisitions are mostly used interchangeably in practice but they have their own set of differences. A merger refers to the consolidation of two or more entities into a single entity where the ownership and control of the previous entities will be transferred to the new entity. The recent consolidation of Vodafone India and Idea Cellular Network into a new company ‘Vi’ is a recent example of merges[1]. On the other hand, acquisitions refer to the takeover of one or more companies by a company and confirm itself as the new owner. The purchase of one by another company is called an acquisition. Unlike mergers, an acquisition does not give rise to a new entity. In acquisition, the transferee is acquired by the transferor company.


Cross-border Mergers and acquisitions are a concept where the companies of different countries will get merged or acquired into one. In essence, these cross-border mergers and acquisitions include agreements between both domestic and foreign companies in the target nation. The trend of Cross- border mergers and acquisitions has raised with the globalization of the world economy.[2]

The concept of cross-border merger has been raised in its numbers as the time passes and currently, Indian companies are more common to cross-border mergers and acquisitions than other countries. TATA Steel acquiring the US based company Corus is an example of cross-border merger.[3]

  1. Inbound Merger: A cross-border merger where the resultant company is an Indian Company and where the foreign company is considered as a branch office of the Indian Company is called an Inbound Merger.
  2. Outbound Merger: A cross-border merger where the foreign company becomes the resultant company as a result of the merger is called an outbound merger.


  1. Foster Entry Growth: When an Indian company is merging with any foreign company then this Indian company is also entering the foreign markets where the merged company resides or operates. Thus, cross-border mergers will smooth entry into other markets.
  2. Increase in Market Share: A merger increases the scale of the company which in turn raises its value in the market. As the proportion of the share of the company in the market will be increased as a result of merger or acquisition, its share price may also increase and also helps the merged companies to reduce their costs and achieve a better position in the competition, thus it increases the market share of the company.
  3. Resource Sharing: A company can use the resources of the merged company based on the proportion of their merger agreement. Also, an acquired company, when it acquires a company it is also deemed to acquire the resources of the target company. Thus, sharing of resources helps the companies to have greater force in their operations.
  4. Increased economies of scale: Cross-border mergers or acquisition leads to mass production thus leading to the operation on a larger scale. The size of the company raises the market share of the company and also has an advantageous position in the market.


  1. Cultural Differences: Every country has its own set of cultures and different behaviour toward different products. It is necessary to cope with such differences and should operate in markets of merged or target companies keeping in view the interest of the customers and workforce. Failure to maintain proper balance on the cultural differences leads to the losses of the company.
  2. Complexities due to bankers, lawyers, regulations etc.: In cross-border mergers and acquisitions there involves a lot of documentation and compliance. Any failure of such regulations leads to hefty penalties. In such mergers and acquisitions, the currency and banks of the countries vary and have their own set of laws and thus it becomes a hindrance to the acquirer company or the merging company.
  3. Legal and Regulatory differences: cross-border M&A transactions involve navigating different legal and regulatory systems, which can be complex and time consuming. Companies must ensure compliance with local laws, regulations and tax policies which can vary significantly across borders.

A merger strategy is a business term that refers to the strategies and tactics that companies or firms use to align their interests in which the ownership or control of two or more entities was not previously under a single ownership. It is a special type of acquisition in which two or more entities join together to form a larger entity. Mergers can take place in different contexts with varying degrees of intensity. The term merger is not defined in the Companies Act, 2013 but in the general sense it is used to define the consolidation of companies into a single entity to carry on business. Mergers can be done in various ways.

  1. Horizontal Mergers: When two or more competing companies or any companies that are in same line of the market, merge into one company to get the benefit over the competition is considered as horizontal merger.
  2. Vertical Mergers: It is a consolidation of two or more companies that are not competing but are involved in the same line of transactions in their respective markets. The entities merging are involved in different levels of the same transaction or market. Such a merger reduces the operations transportation warehouse and other related costs and can also achieve an advantageous position in the market.
  3. Roll-up Mergers: It’s a type of horizontal or vertical merger. Roll-up Merger’s legitimate definition is consolidating or joining different small organizations into an enormous element that is better situated for economies of scale or the upper hand. Rollup strategy involves the process of acquiring small organizations in the market and consolidating them into a single larger organisation.[4]

Acquisition by definition is the acquisition of one company by another company with different owners. The Acquisition means direct investment to purchase an existing company.

There are 2 types of acquisition:

  1. Friendly acquisition: It is a type of acquisition where the acquisition of the company will be done by the consent of its members, shareholders, creditors etc. The transferor company will provide an offer to the target company to acquire it and merge the transferee company in it.
  2. Hostile Acquisition: In this acquisition the transferor company will acquire the ownership or control of the company without the will of the target company.

In order to encourage cross-border mergers and acquisitions, India has put certain rules and regulations into place. Cross-border mergers and acquisitions are primarily regulated under Corporate Laws, Tax Laws, Foreign Exchange laws and any other laws that apply to merger structures:


a) Companies Act, 2013:

Sections 230 to 232 of the Companies Act, 2013 include the requirements for domestic mergers, while Section 234 of the Act, along with Rule 25A of the Companies (Compromises, Arrangements and Amalgamations) Rules of 2016, covers cross-border mergers and acquisitions.

Section 234 of the Companies Act states that domestic mergers shall apply mutatis mutandis to cross-border mergers and acquisitions between Indian companies and Foreign Companies as notified by the Central Government. According to this provision, a foreign company can merge with an Indian Company registered under this Act with the prior approval of RBI and the companies are obligated to provide the terms and considerations of the merger or acquisition.[5]

Rule 25A of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 states that an Indian Company may merge with a foreign company subject to compliance under Sections 230 to 232 along with the prior approval of RBI provided that such foreign companies must be incorporated under the jurisdictions specified in Annexure B.

b) SEBI (SAST) Regulations, 2011:

The SEBI (SAST) Regulations on cross-border mergers and acquisitions aim to provide a level playing field for Indian companies and protect the interests of Indian shareholders. The regulations also provide clarity and transparency in the process of cross-border mergers and acquisitions in India.

  • The regulations apply to all acquisitions of shares, control or voting rights in a listed Indian company by a foreign company, including a merger or amalgamation with a foreign company.[6]
  • The regulations prescribe different thresholds for open offers for different categories of companies. The acquirer is required to make an open offer for 26% of the share capital but can increase its shareholding up to 75% without making any further open offers. Additionally, when the acquirer buys more than 5%, compulsory disclosure of the total ownership is required.[7]
  • The regulations require prior approval from SEBI for any acquisition of shares or control in a listed Indian company by a foreign company.
  • The regulations also require the acquirer to make certain disclosures, such as the details of the acquisition, the acquirer’s shareholding, and the purpose of the acquisition, among others.

c) Competition Act, 2002:

The regulatory body responsible for outlawing anti-competitive agreements, abusing dominant positions, and fostering market competition is the Competition Commission of India (CCI). The CCI has the power to regulate combinations and prescribe necessary changes in their proposed combinations.

  • Section 2(a) defines the term acquisition as an agreement to buy shares, voting rights or other assets of the target company.
  • Section 5 empowers the CCI to make an investigation on whether the combination has any appreciable adverse effect on competition and section 20 of the Act deals with the mode of inquiry
  • The restriction on combinations that have or are expected to have a appreciable adverse effect on competition is covered under Section 6(1).
  • Section 6(2) mandates the companies to provide prior notice along with relevant information to the CCI regarding the combination within 30 days
  • Section 31 empowers the CCI to provide necessary orders on combinations either to approve the combinations or reject the proposed combination or may suggest modifications to prevent the combination from the adverse effect on competition in the market.


a) Foreign Exchange Management Act (FEMA), 1999:

Using the powers granted under Section 234(1) of the Companies Act, 2013, the Central Government has issued the FEMA Cross-border Merger Regulation, 2018, to regulate the process of cross-border mergers. The regulations that are involved are as follows:

  • FEM (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2017,
  • FEM (Transfer or issue of any foreign security) Regulations, 2004,
  • FEMA (Establishment in India of a branch office or a liaison office or a project office or any other place of business) Regulations, 2016 etc.

b) RBI Act:

RBI has also proposed cross-border merger transactions under Companies (Compromises, Arrangements and Amalgamation) Amendment Rules, 2017 to address the issues that arise from the merger or acquisition between Indian and Foreign Companies.[8]


Income Tax Act, 1961 deals with the concept of amalgamation and demerger. The Income Tax Act’s Section 2(1B) defines amalgamation as the joining of two or more companies to create a single company. Mergers and acquisitions have been provided exemption under the head of Income from Capital Gains under section 47 of the Act, arising under indirect transfer of shares due to the merger or demerger of foreign companies. However, this benefit is applies only to an inbound merger.

Subject to the requirements of Section 72A (4) of the IT Act, cross-border demerger occurs when one or more undertakings of a company are transferred to a different entity overseas as a going concern, either to establish a new business or to merge with the current entity.


The Companies Act of 2006 is one of the primary laws controlling M&A transactions in the UK. This act sets out the legal framework for mergers and acquisitions in the UK and applies to both domestic and cross-border transactions.

a) UK Companies Act, 2006:

Under the Companies Act 2006, cross-border mergers can take place between companies registered in different EU member states, or between UK companies and companies registered in EEA countries. The act outlines the requirements for such mergers, including the need for a cross-border merger plan, approved by the shareholders of both companies and the appointment of an independent expert to prepare a report on the merger.

Chapter 2 Part 27 of the Act deals with the concept of mergers and its requirements. [9]Section 1113 of the Act deals with the Enforcement of the Company’s filing obligations.[10]

After Brexit, UK revoked the Companies (Cross-border mergers) Regulations, 2007 along with its amendments of 2008 and 2015 are revoked.

b) Competition Act, 1998:

Competition Law: Cross-border mergers and acquisitions in the UK are subject to the provisions of the Competition Act 1998, which prohibits anti-competitive practices such as abuse of market dominance, price fixing, and collusion. Section 3 of Part I Chapter I of the act expressly exempts mergers from prohibitions. [11]The UK Competition and Markets Authority (CMA) is responsible for enforcing these laws and may intervene in mergers and acquisitions to prevent anti-competitive behavior.[12]

Schedule 2 of the Competition Act states that when a merger takes place for the purpose of Part V of Fair Trading Act or Part 3 of Enterprises Act, then prohibitions under Chapter I do not apply to such mergers. The word ‘any two enterprises’ under this schedule is wider and thus it applies to cross-border mergers.

c) Takeover Code:

The Code’s main focus is on controlling takeover offers and merger transactions of the relevant corporations, regardless of the way they are carried out, including through statutory mergers or schemes of arrangement (as specified in the Definitions Section). In accordance with Article 2 of the Companies (Takeovers and Mergers Panel) (Jersey) Law 2009 (the “Jersey Law”), a Panel has been established to carry out specific regulatory duties relating to takeovers and mergers under Jersey law.[13]

d) National Security and Investment Act:

Chapter 3 states that any acquisition made without the approval of the Secretary of State is considered void. [14]The Secretary of State is empowered with the power to give notice in cases of suspicion that might trigger the national security. [15]Thus, the UK government has increased its scrutiny of mergers and acquisitions involving companies in certain sectors that are deemed to be of strategic importance to the national security. To safeguard national security interests, the government has the authority to prohibit or place restrictions on such transactions.

e) Tax Laws:

Cross-border mergers and acquisitions may also be subject to UK tax regulations, including rules governing the taxation of capital gains, the transfer of intellectual property, and the use of tax havens.


Cross-border mergers and acquisitions (M&A) in the United States are subject to various laws and regulations that govern the process. Cross-border M&A is subject to a number of important rules and regulations in the United States, including:

a) Clayton Act:

The Sherman Act’s basic restrictions are expanded upon by the Clayton Act, 15 U.S.C. 12 et seq., which also targets early-stage anti-competitive issues. Section 7 of the Clayton Act forbids mergers and asset purchases where “the effect of such acquisition may be used to reduce competition or to attempt towards establishing a monopoly, in any line of commerce or anything affecting it in any part of the country.[16]

b) Hart–Scott–Rodino Antitrust Improvements Act (premerger notification):

It is a set of amendments in antitrust laws of the state. For specific mergers and acquisitions, it requires that the corporations notify the Federal Trade Commission and the Justice Department’s Antitrust Division prior to the transaction. The Bureau of Competition is committed to the duty of preventing mergers or acquisitions that affects the competition in the market.[17]

c) Foreign Investment and National Security Act (FINSA):

The Committee on Foreign Investment in the United States (CFIUS) is empowered under the federal statute known as FINSA to assess and approve or disapprove foreign investments in US companies that might endanger national security[18]. The CFIUS may assess cross-border M&A deals involving foreign investors. The US government has passed certain legislations which empower federal agencies in foreign investments that pose risk to national security.[19]

d) Securities Exchange Act of 1934:

This federal law regulates securities transactions and requires companies to make various disclosures related to M&A transactions, such as tender offers, proxy solicitations, and disclosures of material information. Regarding both domestic and international mergers and acquisitions, the Securities and Exchange Commission has established two regulations. “Cross-border Release” facilitates participation in cross-border tenders and exchange offers, mergers and equivalent transactions, and rights offerings for holders of U.S. securities of foreign businesses. The regulation M-A Release governs the tender offer.[20]

Final Rule: The SEC issued exemptive rules on cross-border tender and exchange offers, business combinations, and rights issues involving the stocks of foreign corporations from the Securities Act’s registration requirements. The exemptions’ main goal is to make it easier for American investors to participate in these kinds of transactions.[21]

e) Tax laws:

Cross-border M&A transactions may have significant tax implications, including issues related to the tax treatment of assets, income, and gains, as well as transfer pricing and other international tax considerations. Companies engaged in cross-border M&A transactions in the US need to comply with federal and state tax laws, including the Internal Revenue Code and relevant tax treaties.

f) Foreign Corrupt Practices Act (FCPA):

The FCPA is a federal law that prohibits US companies from engaging in bribery and other corrupt practices when conducting business abroad, including in the context of cross-border M&A transactions. US companies engaged in cross-border M&A transactions need to ensure compliance with the FCPA, which includes anti-bribery and accounting provisions.[22]

g) State laws:

In addition to federal laws, cross-border M&A transactions in the US may also be subject to state laws. Each state has its own laws and regulations governing corporations, limited liability companies, and other business entities, which may impact the process and requirements for M&A transactions.


India’s regulations for cross-border M&A are governed by RBI and the Companies Act. The RBI governs foreign exchange regulations while companies act deals with the process of mergers and acquisitions. Whereas the UK’s regulations on cross-border M&A are enforced by Financial Conduct Authority (FCA) and Takeover Panel. The FCA deals with the conduct of companies and the Takeover panel regulates M&A activities. The USA’s regulations are enforced by the Securities and Exchange Commission (SEC), Department of Justice and the Federal Trade Commission, where the SEC regulates financial disclosures and the DOJ and FTC regulate antitrust and competition issues.

The process of regulatory approval for cross-border mergers and acquisitions also differs across these countries. In India, the approval is granted by the National Company Law Tribunal (NCLT) and RBI. The approval in UK granted by the Financial Conduct Authority and the Competition and Markets Authority. On the other hand, the SEC and the Department of Justice’s Antitrust Division approve transactions in the USA.

The tax implications of cross-border mergers and acquisitions are different in each of these countries. In India, there are specific tax rules that apply to cross-border deals. Her Majesty’s Revenue and Customs (HMRC) takes charge of the tax repercussions in the UK. While in the USA, the Internal Revenue Service (IRS) is in charge of overseeing the tax ramifications.

The practice of doing due diligence is crucial to cross-border mergers and acquisitions. In India, the acquirer usually undertakes the due diligence procedure. In the USA, the due diligence process is more detailed, with the target company required to provide detailed financial and other information. In the UK, the due diligence process is also thorough, with the acquirer required to carry out extensive checks.

The disclosure requirements for cross-border mergers and acquisitions also vary in these three countries. In India, the Companies Act, 2013 mandates companies to disclose all material information related to the merger or acquisition to their shareholders. The Securities Exchange Act of 1934 and the Securities Act of 1933, both of which apply in the USA, impose obligations on businesses to disclose certain significant information to shareholders and to register securities offerings with the Securities and Exchange Commission. In the UK, the Takeover Code sets out rules regarding the disclosure of information to shareholders.

Cross border mergers and acquisitions are complex transactions that require careful consideration of the regulations in each jurisdiction. Companies must be aware of the legal and regulatory requirements in India, UK, and USA to ensure compliance with the relevant laws and regulations. One key consideration is the protection of national security interests, which can lead to restrictions on foreign ownership or control of certain industries or assets. Another important factor is competition law, which aims to prevent anti-competitive behavior and maintain a level playing field in the market. Overall, the regulations surrounding cross-border M&A are multifaceted, but they play an important role in promoting fairness, transparency, and accountability in the global business environment.

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Use of AI in civil cases in India – An analysis of possible implications

This blog has been authored by Gandham Lavanya


The advancement of technology is changing many facets of people’s life. In the legal profession, disruptive technology is also fostering improved accountability and reducing the length of litigation. The digitalization of the legal system was also greatly accelerated by the Covid-19 epidemic. Court sessions were held through video conferencing, and India’s top courts converted to electronic filing. However, the pandemic did not cause all of these breakthroughs. When the “e-Court Project,” a project under the National e-Governance Plan, was announced in 2007, the process of digitizing Indian courts got under way.[1]

All District and Subordinate Court complexes are intended to be completely computerized and ICT-enabled as part of the e-courts Mission Mode Project, which is being carried out by the Department of Justice in close collaboration with the e-committee of the Supreme Court of India[2]. The Artificial Intelligence Committee was created by the Indian Supreme Court to examine how AI is used in the legal system. The three primary applications for AI technology that this committee has identified are process automation, assistance with legal research, and translation of legal documents. Despite the second phase of the e-courts having been under development since 2015, AI technology has not been applied there.[3]

The use of artificial intelligence (AI) in the legal system has been the subject of extensive discussion in recent years. Artificial intelligence (AI) may be used to carry out a range of legal tasks, including document analysis, legal research, and case outcome prediction. Artificial intelligence (AI) has the potential to increase accuracy and efficiency in the legal business, lowering costs and enhancing access to justice.


The use of AI in civil proceedings, however, is particularly challenging in India. India’s legal system is complicated and varied, with a vast variety of laws, courts, and legal procedures. It is important to carefully weigh the potential benefits and challenges of utilizing AI in this situation. Beyond attorneys and judges, the general public may increase its participation with and comprehension of the law by using research and analytics technologies that are widely available. The goal of this participation is to develop more informed, pro-government citizens.[4]

By assisting judges with their decision-making, relieving the strain on attorneys, and improving public access to justice, artificial intelligence (AI) technology has the potential to change the legal system. AI can help with case prediction, document appraisal, contract analysis, and legal research. AI may assist in resolving disputes by providing mediation and arbitration services.

AI can assist in reducing case backlogs and improve judicial efficiency[5]The large number of instances could appear to be reduced with the help of AI, but like any machine, it has its limitations. Only a small portion of the Indian legal system may be automated using artificial intelligence (AI) because of the complexity of the Indian judicial framework, which is composed of several laws, including civil, consumer, and criminal laws. Criminal law may employ AI to detect crime tendencies. But it is impossible to generalize AI to all criminal laws since every criminal case has a different set of circumstances. Therefore, it is difficult for AI robots to collect every piece of data. Although there are several applications of AI for assisting lawyers and judges with comprehension, such as expert systems, natural language processing, and language translation. It’s crucial to thoroughly consider the possible advantages and difficulties of applying AI in this case[6].

To know more about the regulation of AI, enrol for Certificate in Artificial Intelligence and Law


Artificial intelligence (AI) has the power to profoundly alter the legal system by automating time-consuming, repetitive operations, enhancing decision-making, and increasing efficiency. Several examples of how AI is already being used in the legal industry are provided below, legal investigation AI-powered tools can analyze enormous amounts of legal data, including case law, legislation, and regulations, to help attorneys identify essential information more quickly and correctly. In addition to saving time and costs, this can improve the quality of legal research[7].

The overwhelming amount of cases that are still outstanding across India, where the same information has been made available on the National Judicial Data Grid (NJDG) website[8], is the system’s fundamental issue. The question that now arises is: Can artificial intelligence be utilized to expedite the legal system by lowering the backlog of cases? The answer might be somewhat yes or partially no.

To examine the use of AI in the judicial sector, the Supreme Court of India formed the Artificial Intelligence Committee and has offered a wide variety of prospective applications. The second phase of the e-courts projects, which have been operational since 2015, is being implemented, and law minister Kiren Rijiju stated that it was necessary to use new, cutting-edge technologies like machine learning and artificial intelligence to improve the effectiveness of the justice delivery system[9].


SUPACE: Supreme Court portal for aiding court efficiency; includes measures being made in the Indian judicial system as part of adopting ML-based applications. It may prepare a legal brief. Judgments are translated using a programme for language learning called the Supreme Court Vidhik Anuvaad Software (SUVAS). An AI-based technique to automate the reading of court judgments was published in 2020 by researchers at IIT Kharagpur. Software called SCI-Interact is used to make SC benches paperless.

  • Improvements in Access to Justice:

AI can help cut down on the amount of cases that are waiting in Indian courts. Judges and solicitors can more easily analyze, evaluate, and interpret data thanks to the technologies’ ability to quickly locate critical information from vast quantities of legal documents. As a consequence, disputes may be settled more rapidly, cutting down on the amount of time needed to resolve cases, which can save the court money and lower the expense of litigation for the public.

  • Making Decisions More Efficiently:

AI can look at a lot of data and analyze trends that human specialists occasionally overlook. Judges and solicitors can provide more accurate outcomes by making clear and informed decisions.

  • Efficiency gains:

AI-powered systems can analyses massive volumes of data quickly and accurately, saving time and effort on legal tasks. As a result, everyone may have better access to the court system and the legal system may function more effectively.

  • Savings:

Litigation expenses can be lowered by automating routine legal tasks like document examination and analysis. As a result, both litigants and the court system may see significant cost savings.

  • Bias:

Artificial intelligence (AI) systems may reinforce prejudicial attitudes already present in the legal system, producing biased outcomes. This is especially true in India, where the legal system already treats marginalized communities unfairly. Analysing the training data and techniques employed by AI systems in detail is crucial to lowering this risk.

  • Lack of Transparency:

AI systems are frequently secretive, making it challenging to comprehend how judgements are made. The judicial system may become less trusted as a result of this lack of openness.

  • Limited Data Availability:

In order for AI systems to function properly, they need a lot of data. It is difficult to adopt AI-powered systems successfully in India since there is a dearth of digital data in the judicial system.

  • Ethical Issues:

The employment of artificial intelligence in civil disputes poses ethical issues related to privacy, autonomy, and accountability. To guarantee that AI is utilized in a responsible and ethical manner, careful examination of these issues is required.

  • Job Losses:

Lawyers and paralegals may lose their jobs as a result of the use of AI in civil trials, as these professionals may be replaced by AI systems. The legal industry, as well as the general economy, may suffer as a result.


By enhancing the speed, accuracy, and efficiency of numerous legal operations including contract review, legal research, and document analysis, artificial intelligence (AI) has the potential to completely change the legal sector[10]. AI won’t likely completely replace attorneys, though.

While AI is capable of carrying out a variety of legal duties, such as document assessment, it is yet unable to give legal advice or make strategic judgements based on intricate legal and ethical issues[11]. Additionally, legal issues sometimes include complex events and human emotions that AI might not be able to manage well.

A human touch is also necessary in the legal profession since tasks like client counseling, bargaining, and courtroom representation cannot be performed by AI. It’s doubtful that AI will ever entirely replace attorneys in the foreseeable future. Although artificial intelligence (AI) technology has advanced significantly in recent years and can be used to automate some operations, such as legal research, document review, and contract analysis, it lacks the human judgement, creativity, and interpersonal skills that are required for many legal duties.

There are around 47 million pending cases in the courts and more cases are added every year[12]. A wide range of duties that need legal expertise, analytical prowess, and judgement are also included in the legal profession. These activities frequently need attorneys to apply legal concepts to particular and complicated factual situations, which can be challenging for AI to execute properly and efficiently. Although AI can be a beneficial tool for attorneys to boost productivity and efficiency, it is doubtful that AI will totally replace lawyers. On the other hand, as AI technology develops, it may be more fully incorporated into the legal industry and alter the way attorneys practice


By enhancing productivity, accuracy, and justice access, the application of AI in civil matters in India has the potential to completely alter the way the judicial system operates. However, there are certain moral and legal issues that must be resolved, such as prejudice and discrimination, a lack of openness, issues with privacy, job losses, and access to justice. To make sure that AI systems are created and used in a way that supports fairness, accountability, and social justice, the legal community, legislators, and technologists must collaborate.

To know more about the regulation of AI, enrol for Certificate in Artificial Intelligence and Law















Recent trends in IP infringement in the fashion industry

This blog has been authored by Vivek J. Vashi


Fashion has become an integral part of the modern Indian society.  People have developed a general affinity towards fashion trends to showcase their fashion sense by purchasing various products from brand names. Everyone wants to associate themselves with the latest fashion trends. Sometimes money becomes a constraint, so contrabands and copies of the original creations are purchased.

Fashion has become an essential part of people’s lives as it sets the tone for people to present themselves. Wearing or owning products of a particular brand corresponds with status, eminence, and desirability of an individual. Brands such as Louis Vuitton, Bulgari, Gucci, Prada, Hermes, Rolex, etc. are examples of brands known as ‘luxury brands’ that claim to bestow the wearer with a sense of power and prestige owing to their massive reputation. In the process of self-expression, many a times a design becomes famous and others start copying it resulting in a loss for maker of the original design. Counterfeiting is one of the most significant problems faced by the fashion industry. There are two types of counterfeiting prevalent in the fashion industry. Firstly, Deceptive, where the consumers are under the impression that the product is a genuine product, and secondly, Non-Deceptive, where the consumers are aware that they are buying a knock off product.[1]

One may find counterfeit products of famous brands selling counterfeit products through various trade channels including online portals or branded companies taking advantage of loopholes in law to copy and create products belonging to some other brand. E.g. On 8th December 2017, Nike (the famous brand) was awarded damages and a permanent injunction against a trader selling counterfeit goods using their Nike and Swoosh trademark. The damages were compensatory and punitive.[2] Also, the “Indian media was abuzz with the news of High Fashion brand, Christian Dior having allegedly plagiarised certain designs from a small, Indian art collective and store known as ‘People Tree’. According to reports – which carried allegations raised by the collective – Dior’s Cruise 2018 collection contained a dress that contained exact reproductions of the Block Printing designs created, and sold by ‘People Tree’ in India.”[3]

India is the second-largest market in the Asia Pacific, with retail e-commerce sales growth of 25.5 percent in 2022. Most consumers prefer to continue shopping online even after the COVID-19 pandemic due to an overall positive experience and convenience of online shopping.[4] The counterfeiters deceive the consumers by domain name squatting as the consumers shopping online are increasing. They make the shopping experience look original and professional so that the consumer does not question the counterfeiter’s authenticity. The counterfeiters also make fake reviews and manipulate the buying decisions of consumers while shopping online.[5] Apart from e-commerce portals, social media portals like Instagram, Facebook, WhatsApp and Telegram are utilised to sell counterfeit products. To limit the counterfeit products from appearing on online retail platforms, measures must be taken by the platform to destroy counterfeit products appearing on its online marketplace for the sake of law makers, brands, and consumers.[6]

Counterfeit industry poses a huge threat to the economy too (due to government’s loss of revenue), apart from posing huge challenges to the profits and brand values of the popular brands. The counterfeiting industry is colossal and has had a strong impact of about one lakh crore on the Indian economy.[7] Counterfeiting can have severe legal and economic consequences for the brand owners, as well as the consumers who unknowingly purchase counterfeit goods. This is called as wilful counterfeiting where buyers are aware of the counterfeit products and buy the same. For the brand owners in the fashion industry counterfeiting attributes to a large gap in the price between the original and the counterfeit products.  Thus, counterfeiting is the offence of manufacturing or distributing lower quality imitating goods under someone else’s name without their consent or permission.[8] A person is said to “counterfeit” who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised.[9]

To know more about Fashion Law in India, enrol for Enhelion’s Diploma in Fashion Law


Counterfeiting in the fashion industry can lead to several legal implications for both brand owners and consumers. Some of the legal implications of counterfeiting in fashion include:

  1. Infringement of Intellectual Property Rights: Counterfeiting in the fashion industry involves the unauthorized use of trademarks, designs, and copyrights, which infringes the intellectual property rights of the legitimate owner of the brand. Under Indian intellectual property law, trademark infringement can result in civil and criminal liability, including damages and imprisonment.
  2. Unfair Competition: Counterfeiting in the fashion industry can lead to unfair competition, as counterfeiters can sell their products at lower prices, taking away market share from legitimate brands. This can lead to a loss of revenue and reputation for legitimate brand owners.
  3. Consumer Health and Safety: Counterfeit products in the fashion industry are often of poor quality and can pose a health and safety risk to consumers. Example: Counterfeit cosmetics can contain harmful chemicals that can cause skin and other health related problems. [10].

The Indian judiciary has dealt with several cases related to counterfeiting in the fashion industry. In the case of Christian Louboutin SAS vs. Nakul Bajaj And Ors.[11] the Delhi High Court has clarified the responsibility and liability of online intermediaries for infringement of trademark. The judgement has shed light on India’s intermediary liability regime as it relates to infringement of trademark. The Plaintiff is Christian Louboutin, the owner of the registered trademarks, including the single colour mark for its distinctive ‘red sole’. According to the plaintiff the products are sold in India only by authorized dealerships. The defendant is “”, a website marketing itself as a ‘luxury brands marketplace’. The plaintiff in this case alleged trademark infringement against the defendant, by selling counterfeit products. The defendant argued that the goods which were sold were genuine and there was no infringement on its part because it was mere intermediary and is entitled to be protected by “Safe harbour” provision of Section 79 of the Information Technology Act, 2000.

In this case the Delhi High Court examined ‘intermediary’ under section 2(w) of the Information Technology Act, 2000 and discussed intermediary position in the European Union, the United States and in India. The court analysis was based on whether the role played by the defendant was neutral i.e., if the conduct was merely technical, automatic, and passive, pointing to a lack of knowledge or control of the data that it stored. The court examined various judgements and concluded that knowledge of infringement by intermediaries makes the liability shift. This was also stated in the Indian judgement of MySpace Inc. v. Super Cassettes Industries Ltd. [12]

The concept of constructive knowledge and the active knowledge was discussed. In the MySpace judgement, it was declared that even if the intermediary has a knowledge of the illegality happening in their website, then the intermediary does not need a court order to stop the counterfeited product or infringing product from using their intermediary service. The activities that happen even after a minimum knowledge of the infringement can be claimed to be of a sort of abiding by the infringement done by the third party and it would amount to the intermediary becoming liable. The defendant was exercising complete control over the products and identified the sellers, which enabled them actively, promoted them and sold the products in India. When an e-commerce website is conspiring, abetting, aiding, or inducing, or contributing to selling counterfeit products, it could be said to cross the line from being an intermediary to an active participant. In such a case, the website would be liable for infringement in view of its active participation. The position in MySpace judgement is in line with the position on intermediary liability in cases of copyright infringement adopted by leading international jurisdictions such as United States, particularly in the case of A&M Records, Inc v. Napster, relating to reasonable knowledge of infringement.[13]

At last, the court in Christian Louboutin case concluded that the defendant is more than an intermediary and exercised complete control over product being sold. Therefore, the conduct of intermediaries in failing to observe ‘due diligence’ with respect to Intellectual Property could amount to conspiring, aiding, abetting, or inducing unlawful conduct would disqualify it from the safe harbour exemption, as per Section 79(3)(a). Finally, the Court ordered that the intermediary must require its sellers to honour the warranties and guarantees provided by the plaintiff and must also remove all meta-tags containing the plaintiff’s mark.

To know more about Fashion Law in India, enrol for Enhelion’s Diploma in Intellectual Property- Law and Management.


In the recent years online platforms play an important role in facilitating the exchange of information at a scale. This allows spreading of all types of content, legal and illegal. The role of online platforms sometimes expands from hosting information to governing how content is shown and shared which raises pressing questions on role and responsibility of platforms in preventing criminals and other persons involved in infringing activities online from exploiting their services. Some platforms have self-regulation of the content however, arbitrary actions by online platforms could affect freedom of speech and expression. The challenge of regulatory framework for online platforms is to find the correct balance between enhancing the role of online platforms and government in detection, moderation and the need to ensure protection for users and their fundamental rights and freedoms.[14]

The Government of India has brought reforms to effectively curtail the trade of counterfeit products in the country. On 23 July 2021, the Department-related Parliamentary Standing Committee on Commerce presented the 161st report on “Review of the Intellectual Property Rights Regime in India” in the upper house (Rajya Sabha) of Parliament.[15] It acknowledged that counterfeiting and piracy are rising threats to IP rights and recommended specific legislation to curb counterfeiting and piracy in India. A separate Central Coordination Body on IP Enforcement was also recommended to facilitate coordinated efforts involving various ministries, departments and government agencies. The Government has formulated due diligence requirements for intermediaries to adhere to under the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to safeguard itself for the information it holds or transmits. The intermediaries remain immune from liability unless they are aware of the illegality and are not acting adequately to stop it.  They are subject to ‘duties of care’ and ‘notice and take down’ obligations to remove illegal content.[16]

Approved on 12th Match 2016, the Government of India has formulated the National IPR policy which is reviewed every 5 years for a vibrant IP regime. The National IPR Policy was formulated after intensive stakeholder consultation with nearly 300 organisations and individuals by an IPR Think Tank, as also 31 departments of the Government of India.[17]

Also, the courts in India are taking strict view on online intermediaries thereby narrowing the scope of safe harbour to prevent online infringement. One effective legal framework to resolve issues relating to domain names in India is the .IN Domain Name Dispute Resolution Policy (INDRP). It was drafted in accordance with international guidelines (of the WIPO) and the provisions of the Information technology Act, 2000. The INDRP governs disputes regarding domain names containing the .IN or .Bharat code at the end. Any person aggrieved by the registration of a ‘.in’ domain on the grounds that it is identical or confusingly similar to his or her name or trademark may file a complaint before the National Internet Exchange of India, an administrative body for resolving issues under INDRP. It provides a quick and effective grievance redressal mechanism.

As Import of infringing goods is prohibited under the Customs Act 1962 and the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007, the brand owners can record their trademarks with Customs so that the import of any products that infringe the trademarks is stopped. Further, the laws empower the enforcement authorities to seize misbranded and spurious goods and to suspend manufacturing licenses of businesses involved in such counterfeiting activities. Freedom to do business should not be an excuse to perform acts of counterfeiting and trademark infringement. In this regard, Sections 102, 103 and 135 of the Trademarks Act, 1999, can be employed as remedies against infringement and counterfeiting as they deal with falsification and false application of a trademark. Notably, Section 103 mandates imprisonment of three (3) years and a fine up to two lakh rupees as penalties for counterfeiting. The Courts have also stepped in by compensating brand owners who are the victims of widespread counterfeiting in India.

With an increase in awareness of intellectual property rights among the consuming public and brand owners taking actions on counterfeiters, the end to this epidemic may be possible soon.


[1] Kala, S. and Ghosh, R., 2019. Faking It In Fashion – Intellectual Property – India. [online] Available at: <> [Accessed 30 March 2023].

[2] Nike Innovate C.V vs. Ashok Kumar on 8 December 2017 suit no. 23/17.

[3] People tree v. Dior: IP Infringement, Cultural Appropriation or Both? [online] Available at:       <https://www.spicyipcom/2018/02/people-tree-v-dior-ip-infringement-cultural-appropriation-or-both.html> [Accessed 30 March 2023].

[4] Number of Digital Buyers in India [online] Available at: <> [Accessed 31 March 2023].

[5] A case over sale of counterfeits on Amazon may have implications for fashion [online] <> [Accessed 31 March 2023].

[6] Amazon destroyed more than 2 million counterfeit products last year [online] <https://edition.cnn.come/2021/05/11/business/amazon-counterfeits/index.html> [Accessed 31 March 2023]

[7] The Economic Times. 2020. Counterfeit products create Rs 1-lakh-cr hole in economy, incidents up 24% in 2019: Report. [online]

Available at: <> [Accessed 31 March 2023].

[8] International Anticounterfeiting Coalition. n.d. What is Counterfeiting | International Anticounterfeiting Coalition. [online]

Available at:  [Accessed 3 April 2023].

[9] The Indian Penal Code, 28 (1860)

[10] Combating Counterfeiting in Fashion: Legal Implications and Strategies for Brand Protection in India. [online].

Available at: <>

[Accessed 3 April 2023].

[11] (2018) 253 DLT 728.

[12] (2017) 236 DLT 478.

[13] 239 F.3d 1004 (2001).

[14] Liability of online platforms- European Parliamentary Research Service, February 2021 [online] Available at:  < > [Accessed on 5 April 2023].

[15] Recommendations/observations at a glance- Rajya Sabha press release [online],

Available at: < > [Accessed 6 April 2023].

Available at: < > [Accessed 6 April 2023].

[16] European Parliamentary Research Service, May 2020 [online] Available at: < > [Accessed on: 6 April 2023]

[17] National IPR Policy [online]

Available at: < > [Accessed 6 April 2023].


Regulation of genetically modified food in India and the U.S. – A critical analysis

This blog has been authored by Muhammad Salman Chukkan


Genetically Modified or Engineered Food (GM Food) is defined as “food and food ingredients composed of or containing genetically modified or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing genetically modified or engineered organisms obtained through modern biotechnology” in the draft Food Safety and Standards (Genetically Modified or Engineered Foods) Regulations, 2021[1]. GM Food has been a buzzword worldwide since 1994, which is well evident from the Google trend analysis.[2]

The introduction of the topic GM Food has brought a fair share of controversies both in India and Worldwide, it seems to be a big socio-political issue in some of the Agrarian economies in the world like India, Brazil etc which is well explained in the article titled ‘Policymaking in the Context of Contestations: GM Technology Debate in India’ by Asheesh Navneet and the News article titled ‘All you need to know about the GM food controversy’ which is published by The Hindu 08/06/2016. [3],[4]

The major concerns revolve around the Health, Ethics and emergence of unexpected risks. The most discussed health concern is emergence of new and super allergens. However the same is generally understood in the safety evaluation by the competent authorities. The second most discussed concern is regarding the build-up of toxins due to the changes happening to the biochemical pathways, the assessment generally becomes a problem due to the limitation in the animal studies. In the ethical viewpoint, Scientists and the general public are concerned about the domino effect or Ice-berg effect of GM Food in the food chain or food web and effect on biodiversity. Emergence of ‘Secondary-pest’ and ‘Superweed’ are also often a discussion, however the Superweed phenomenon is due to over usage of a same herbicide which led to the resistance and Secondary pest is a phenomenon happens even with the traditional pest control system.[5],[6]

The supporters of GM Food on other hand terms the technology as essential for Humankind. This is due to the numerous benefits associated with GM Foods and technology i.e. Reduced usage of pesticides, Increased productivity, Crops better resistance against the drought, Crops with improved nutrition etc. [7],[8],[9]

To learn more about Food laws in India, check out Certificate course in Food and Beverages Law.

Safety Assessment of GM Foods:

The basic assumption is that all the food made in traditional ways are safe to consume.It is worthy to note that we have accepted all the varieties which are being made by using the conventional breeding techniques. All GMO and GM Foods are strictly evaluated for the safety aspects of the product.

The safety assessment of GM Foods is not a singular approach, the assessment shall be conducted differently for different products. For example, a GM Apple made for Pest resistance and GM Apple made for sweetness shall have separate assessment. Evaluating the safety of a GMO is a comprehensive process that involves several steps. Systematic safety assessment methodologies are in place that have been agreed on years of consultations under the aegis of international organizations and agreements viz. Food and Agriculture Organization (FAO), World Health Organization (WHO), Codex Alimentarius Commission, Organisation for Economic Co-operation and Development (OECD) and Cartagena Protocol on Biosafety.

Generally, safety assessment is done with major three types of assessments i.e. Food Safety Assessment, Environmental Safety Assessment and Molecular & Protein characterization. And it is also ensured that no GM Food is released without proper safety evaluation.

To learn more about Food laws in India, check out Certificate course in Food and Beverages Law.

GM Food Regulations in USA

The USA government was always open to GM Technology and GM Food, maybe due to the economic interest of the USA. Also, it is understood that the USA takes a hybrid approach starting with a product-based approach and then if required they take up a process-based approach as well. This may be due to the fact that Americans have been consuming GM Foods since the introduction of Flavr Savr Tomato in 1994. The scientific world is unanimously supporting the GM Food but as per the recent study the American consumers are concerned over GM Food when they find it on label, this is due to widespread misinformation.[10]

The federal government of the USA has made a coordinated approach to regulate the GM Foods in the USA. The federal government released the Coordinated Framework for Regulation of Biotechnology as their policy. The regulation give the responsibility of ensuring the safety on to three different agencies ie. USDA’s Animal and Plant Health Inspection Service (USDA-APHIS) & its Biotechnology Regulatory Services (BRS), the U.S. Environmental Protection Agency (EPA), and the Department of Health and Human Services’ Food and Drug Administration (FDA)(Fig. 2). These three agencies work together to understand the impact of GM Food on the environment. [11],[12],[13], [14],[15]

  • FDA: FDA regulates all the foods including the GMO Foods in the US. They regulate the industry through the Federal Food, Drug, and Cosmetic Act (FD&C Act) and Food Safety Modernization Act which deals with the standards for manufacturing, storage, Transportation, Allergen management, Quality management and labeling.
  • USDA: APHIS, through its Biotechnology Regulatory Services (BRS) program, regulates the introduction of certain organisms developed using genetic engineering that may pose a risk to plant health. The Food Safety and Inspection Service (FSIS) is the public health agency in USDA that is responsible for ensuring that the United States’ commercial supply of meat, poultry, egg products, and fish of the Order Siluriformes is safe, wholesome, and correctly labeled. Under the Federal Meat Inspection Act (FMIA), Poultry Products Inspection Act (PPIA), and Egg Products Inspection Act (EPIA), FSIS inspects all meat, poultry, and processed egg products in interstate commerce. FSIS uses these authorities to regulate products under its jurisdiction, including those derived using genetic engineering.
  • EPA: EPA regulates pesticides, including plants with plant-incorporated protectants (PIP) (pesticides intended to be produced and used in a living plant), to ensure public safety. That agency also regulates pesticide residue on food and animal feed.Under section 408 of the FD&C Act, EPA establishes the amount of pesticide chemical residues that may be present in food. Under the Toxic Substances Control Act and regulations implementing that statute, EPA currently regulates biotechnology products that are new microorganisms not specifically excluded by the statute. Thus working on the plant-incorporated protectants for the safety.

So in a typical outlook when a new GMO is used as PIP, One shall get clearance from EPA. If the same is going as an feed to the Animals they shall get approval of USDA and FDA. This suggests that the regulatory aspects are cumbersome due to involvement of multiple agencies, however the jurisdiction has been clearly defined in the Coordinated Framework for Regulation of Biotechnology which makes the work easy as Government. These three agencies are working together to educate the stakeholders.

But multiple agencies may create confusion and problems among the Food Business Operators and sometimes the Consumers as well.

To learn more about Food laws in India, check out Certificate course in Food and Beverages Law.

GM Food Regulations in India

Since the inception of the discussion of GM Food, India was very much resistant to the concept, may be due to the general mentality of the government with respect to sentiments and concerns to mother nature.

In India, all GMOs including GE plants are regulated by the Ministry of Environment, Forest andClimate Change (MoEFCC) as per rules notified under the Environment (Protection) Act, 1986. Guidelines and protocols are in place for safety assessment of GM foods. GM foods are also subjected to regulations by the Food Safety and Standards Authority of India (FSSAI) under the Food Safety and Standards Act, 2006 and its upcoming draft regulation. As of now FSSAI is having a ‘Zero’ tolerance approach to the GM Foods. This can be understood from some of the Orders or Advisories from FSSAI, refer order dated 21/08/2020 & 27/07/2021.[16],[17],[18]

In India each and every GM Food is required to get a prior approval from GEAC (Genetic Engineering Appraisal Committee, the regulatory authority in MoEFCC. And there are other bodies for Enforcement, Monitoring and Approvals of GMO or GM Food. The final authority to give the go-ahead is the GEAC.

As per the Draft-Food Safety and Standards (Genetically Modified or Engineered Foods) Regulations, 2021, After getting the required approval from the GEAC, the FBO shall get submit application for approval at Food Authority if the product falls under the definition of food as mention in 3(j) of FSS Act 2006. The draft regulation is also providing provision for exemption of approval in 4(11) of Draft-Food Safety and Standards (Genetically Modified or Engineered Foods) Regulations, 2021 i.e. Genetically Modified Organisms having unique identification Code provided by Biosafety Clearing House, Organisation for Economic Co-operation and Development etc, is approved by FSSAI, approval for the same will not be required for any other Food Business Operator. Approval will also not be required if it is used as an ingredient in any product. It also restricts the usage of GM Foods in Infant Foods. Also mentioned the labeling attributes in the regulation.

Critical Analysis:

The Indian regulatory system is taking cautious steps to deal with the risks of GM foods. It is worth noting that the information is easily accessible for someone who is looking at the GM Regulations. However, the US regulations are often cumbersome and messy.

To learn more about Food laws in India, check out Certificate course in Food and Beverages Law.

  3. Policymaking in the Context of Contestations: GM Technology Debate in India, Asheesh Navneet
  5. Genetically modified foods: safety, risks and public concerns—a review, A.S.Bawa and K.R.Anilkumar
  7. A meta-analysis of the impacts of genetically modified crops, Wilhelm Klumper et al.
  8. Development of Drought-Tolerant Transgenic Wheat: Achievements and Limitations, Shabhaz khan et al.
  9. Biofortified Crops Generated by Breeding, Agronomy, and Transgenic Approaches Are Improving Lives of Millions of People around the World, Monika Garg et al.
  11. A new window of opportunity to reject process-based biotechnology regulation, Gary E Merchet et al.
  16. Handbook for Food Safety Officials – Genetically Modified Foods Safety Assessment and Regulations

Role of Intellectual Property in Cyber Law

This blog post has been written by Dr. Apoorva Dixit


The Intellectual Property Rights[1] protect the original work in fields of art, literature, photography, writing, paintings, even choreography in written format, and audio, or video files. The IPR protects these works both in tangible and intangible form. Patent, Copyright, Trademarks, Trade Secrets, Industrial and Layout Designs, Geographical Indications are intellectual property rights for which legal remedies are available even for online infringements.

With the technological advancements and innovations in cyber world the global markets have benefitted the copyright or patent owners. However, every good innovation has its own pitfalls as violation of IPR has become one of the major concerns because of the growth of cyber technology. The IPR and Cyber law go hand in hand and cannot be kept in different compartments and the online content needs to be protected.

The ever-increasing and evolving cybercrimes are not confined to cyberstalking, frauds, cyberbullying, phishing, or spamming but are also infringement of IPR- copyright, trademark, trade secrets of businesses carried online, audios, videos, service marks by illegal practices like hyperlinking, framing, meta-tagging, and many more.

What are Intellectual Property Rights in Cyberspace

IPR can be defined as – “Intellectual property rights are the legal rights that cover the privileges given to individuals who are the owners and inventors of a work and have created something with their intellectual creativity. Individuals related to areas such as literature, music, invention, can be granted such rights, which can then be used in the business practices by them.”[2]

Types of Intellectual Property Rights[3]

Intellectual Property Rights can be further classified into the following categories −

  • Copyright
  • Patent
  • Trade Secrets, to name a few[4]

Every innovation in technological zone becomes prone to threats. The cyberspace on one hand has facilitated e-commerce, connecting with friends and family, publishing the literary works, and sharing knowledge but at the same time these personal data or copyrighted or patented data become vulnerable to various cyber-attacks.

It is best suited to have an effective intellectual property management strategy for all the e-businesses encompassing a considerable number in cyberspace.

There are various laws nationally and internally to safeguard intellectual property against cyber-threats, but it becomes the moral duty of the owner of IPRs to take all the required protective measures to negate and reduce illegitimate virtual attacks.

Intellectual Property Rights in India

For the protection, the IPRs in Indian soil, various constitutional, administrative, and judicial rules have been defined whether it is copyright, patent, trademark, or other IPRs.

Legislations Enacted to Protect IPR[5]

In the year 1999, the government passed an important legislation based on international practices to safeguard the intellectual property rights. The same are described below−

  1. The Patents (Amendment) Act, 1999, facilitates the establishment of the mailbox system for filing patents. It offers exclusive marketing rights for a time of five years.
  2. The Trademarks Bill, 1999.
  3. The Copyright (Amendment) Act, 1999.
  4. Geographical Indications of Goods (Registration and Protection) Bill, 1999.
  5. The Industrial Designs Bill, 1999, replaced the Designs Act, 1911.
  6. The Patents (Second Amendment) Bill, 1999, for further amending the Patents Act of 1970 in compliance with the TRIPS.

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A. Copyright Infringement:[6]

“Copyright protection is given to the owner of any published artistic, literary, dramatic, or scientific work over his work to exclude everyone else from using that work on his own name and thereby gain profit from it.”

The infringement of these copyrights includes the usage without the permission of the owner, making and distributing copies of software and unauthorized sale of the same, and illegitimate copying from websites or blogs.

  • Linking:

Linking refers to directing a user of a website to another webpage by action of clicking on a text or image without leaving the current page. It poses a threat to rights and interests of the owner of the website and the owner can lose the income as it related to the number of users visiting the websites. It may lead users to believe that the two websites are linked and are under same domain and ownership.

In Shetland Times, Ltd. v. Jonathan Wills and Another[7], it was held to be an act of copyright infringement under British law and an injunction was issued as the Shetland News’s deep link was supposed to be with the embedded pages of the Shetland Times’s web site, but they were also linked to the Times’ website.

With digitisation there is a threat to copyright ownership and rights over their own innovation as it has become easy to mould various components of copyright elements into variety of forms by the process of linking, in-linking, and framing. This requires no permissions to be accorded.

Deep linking is challenging to manage as there are no clear-cut laws at both national and international level and this ambiguity becomes advantageous for cybercriminals who try to breach the copyrights. The rights of the owner of copyrights on one hand and free availability of information on another is needed to be balanced to ensure smooth working of online resources and businesses. Reading Sections 14 and 51, Indian Copyright Act, 1957, a legal issue emerges whereby it is not clear as to the exact stage when the reproduction of the copyrighted work is being committed[8]. The ambiguity lies in tracing the copyright infringement that is it at the stage of formation of deep link without the disclaimer of accessing a link which needs no approval or at the time when a user accesses the link at his will.

Another challenge is with the in-linking links. On a browser visited by a user accessing the link is created with map to navigate and fetch images from various sources, these images are copied by final user who is clueless that he is retrieving those from different websites. Like deep linking, the problem of tracing the infringement remains the same as it is difficult to track the exact phase of reproduction of the copyrighted images. The in-line link creator is guilty of copyright infringement though not directly distributing it but giving way to facilitate making of unauthorized copies of the original website content thereby falling under the purview of Section 14 Copyright Act, 1957. However, the final user has no mens rea or knowledge of any violation of copyright and is thus caught off-guard.

  • Framing:

Framing is another challenge and becomes a legal issue and debate subject over the interpretation of derivation and adaptation under Section 14 Copyrights Act, 1957. The framer only provides users the modus operandi to access copyrighted content which is retrieved from a website to browser the user is accessing so they cannot be held responsible for copying, communicating, or distributing the copyrighted content. The question arises whether getting the copyrighted content from a website and combining with some more to create one’s own will amount to adaptation or interpretation under law or not.

B. Software Piracy:

Software piracy refers to making unauthorized copies of computer software which are protected under the Copyright Act, 1957.

Piracy can be of following types:[9]

  • Soft lifting – this means that sharing a program with an unauthorized person without a licence agreement to use it.
  • Software Counterfeiting – Counterfeiting means producing fake copies of a software, imitating the original and is priced less than the original software. This involves providing the box, CDs, and manuals, all tailored to look as close to original as possible.
  • Renting – it involves someone renting a copy of software for temporary use, without the permission of the copyright holder which violates the license agreement of software.

C. Cybersquatting And Trademark Infringement:

Trademark means a unique identifier mark which can be represented by a graph and main idea is to differentiate the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.

Cybersquatting is a cybercrime which involves imitation of a domain name in such a manner that the resultant domain name can dupe the users of the famous one with an intention to make profit out of that. This is executed by registering, selling, or trafficking of a famous domain name to encash a popular domain name’s goodwill.

When two or more people claim over the right to register the same domain name then the domain name dispute arises when a trademark already registered is registered by another individual or organization who is not the owner of trademark that is registered. All domain name registrars must follow the ICANN‘s[10] policy.

Meta tagging is a technique to increase the number of users accessing a site by including a word in the keyword section so that the search engine picks up the word and direct the users to the site despite the site having nothing to do with that word. This may result in trademark infringement when a website contains meta tags of other websites thereby affecting their business.

There are certain conditions which need to be fulfilled for a domain name to be abusive:

  1. The domain name can be said to be abusive if it gives the impression to the users of being same as another popular trademark which is a registered one and users mistakenly access the fake one made with mal intention of gaining profit by diverting users of popular trademark domain.
  2. The registrant has no legal rights or interests in the domain name.
  3. The registered domain name is being used in bad faith.

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The various international conventions treaties and agreements for protection of intellectual property in cyberspace are : “Berne Convention (1886), Madrid Agreement Concerning the International Registration of Trademarks (1891), Hague Agreement Concerning the Registration of International Designs (1925), Rome Convention for Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Patent Cooperation Treaty (1970) Agreement on the Trade-Related Aspects of Intellectual Property Rights (1994), World Intellectual Property Organization Copyright Treaty (1996), World Intellectual Property Organization Performances and Phonograms Treaty (1996), and Uniform Domain Name Dispute Resolution Policy (1999), in consolidation form the international instruments that govern Intellectual Property Rights.”[11]

Berne Convention (1886) protects the IPRs in Literary and Artistic Works and for the developing countries specialised provisions are provided.

Rome Convention (1961) covers creative works of authors and owners of physical indicators of intellectual property. It permits the implementation at domestic level by member countries where the dispute falls within purview of adjudication by International Court of Justice unless resorted to arbitration.

TRIPS (1994) is a multilateral agreement on intellectual property that has the widest coverage of IPRs like copyrights and related rights.

UDRP (1999) is for the resolution of disputes on registration and use of internet domain names.

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Section 51 of Copyrights Act, 1957 is noticeably clear that exclusive rights are vested in the copyright owner and anything to the contrary constitutes copyright infringement thereof[12]. Since there is no express legislation to determine the liability of Internet Service Provider (ISP), Section 51 can be interpreted to fall within the ambit with respect to the facilitation of server facilities By ISPs for stockpiling user data at their business locations and which is broadcasted for making profit through charging for services and advertisements. However, to interpret in such a way the other ingredients are to be fulfilled in a cumulative manner, these ingredients are ‘knowledge’ and ‘due diligence’ to hold ISP liable in abetment of infringement of copyright.

Information Technology (Intermediaries Guidelines) Rules 2021 and Section 79 IT Act, 2000 provide conditional safeguard from liability of the online intermediaries, but at the same time its open for interpretation under any other civil or criminal Act. IT Act 2000 makes an intermediary non-liable for any third-party content hosted on its site. The 2021 Guidelines entail following of diligent approach by the intermediaries to avail protection or exemption under Section 79 IT Act, 2000. Therefore, it becomes crucial for initiative-taking judicial interpretation depending on the facts of each case.


Cyberspace has no borders and Intellectual Property disputes have become a global concern with mixed infringements and cross border disputes. For prescription, adjudication, and enforcement of law the legal disputes will come under jurisdiction of a Court or not becomes a worrying concern as there is no clear-cut rule of law. A country as a sovereign power has powers to adopt a criminal law for to an offensive act was committed outside its borders may but which has an impact within its territory. Following the international law, Courts can assume universal jurisdiction to prosecute a cybercriminal.

Evolution of various of theories and legal concepts has been witnessed to deal with this much anxiety of jurisdictional issues with respect to adjudicating the infringements of intellectual property in cyberspace. The most significant of these are the Minimum Contacts Test, the Effects Test, and the Sliding Scale Test or ‘Zippo Test’ taken from US Courts. The Minimum contacts test is applicable where one or both parties are out of territorial jurisdiction of the Court but there is a contact with the State in which the Court is located. The Effects test is applicable at the territory of the Court the effects or injury of any cyber-crime is experienced. The Sliding Test is related to personal jurisdiction regarding the interactions with commercial information over the internet between the non-resident operators.

Section 75 IT Act, 2000 is applicable to cybercrimes committed outside India if the offence involving a computer, computer system, or computer network placed in India. Section 4 IPC, 1860 extends its jurisdiction to offences committed in any place outside India targeting a computer resource located in India. The courts in India can adjudicate against the intellectual property infringements in cyberspace and they protect the intellectual property owners by means of judicial activism and effective jurisprudence.

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Along with the technological advancements and innovations it becomes imperative to protect the sensitive data and information and the intellectual property online by resorting to stricter legal measures. As newer types of cybercrimes affecting intellectual property are cropping up, so it becomes essential to enact new laws as traditional regulations are not sufficient to render justice as the challenges faced in protection or tracing the infringers of intellectual property in cyber world is quite challenging.

For smooth sail and facilitation of global trade and e-commerce and various businesses conducted online the import and export are necessarily provided a secured atmosphere to protect IPRs. Novice and updated technological practices to protect copyrighted content is absolute necessity like encryption, cryptography, digital signatures, and digital watermarks. It is important to keep a record of all the work with ownership of IPRs to identify the author, numbers or codes involved with such works. Taking the route of legal redressal of dispute is not the only solution but it is very much required on part of copyright, patent, trademark, and various other intellectual property rights owners to be initiative-taking and take all necessary precautions in protecting their works and be updated with the current technological measures of protection for IPRs. Social engineering attacks are generated or started by people, and the answers and solutions to these problems would come from people only.

[1] Hereinafter referred to as IPR

[2] 2022. Intellectual Property Right. [online] Available at: <> [Accessed 14 June 2022].

[3] Ibid

[4] Ibid

[5] Ibid

[6] 2022. Intellectual Property Issues in Cyberspace. [online] Available at: <> [Accessed 14 June 2022].

[7] Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd. [1996] (Court of Session, Edinburgh).

[8] Banerjee, S., 2021. Intellectual property rights law in cyberspace. [Blog], Available at: <> [Accessed 15 June 2022].

[9] 2022. Intellectual Property Issues in Cyberspace. [online] Available at: <> [Accessed 14 June 2022].

[10] ICANN (Internet Corporation for Assigned Names and Numbers) is the private, non-government, non-profit corporation with responsibility for Internet Protocol (IP) address space allocation, protocol parameter assignment, domain name system (DNS) management and root server system management functions. The Internet Assigned Numbers Authority (IANA) previously performed these services.

[11] Banerjee, S., 2021. Intellectual property rights law in cyberspace. [Blog], Available at: <> [Accessed 15 June 2022].

[12] Ibid


Analysis of Insurance laws in India and UAE

By:- Khushi Sharma


Banking can be described as the activities such as depositing and protecting the capital of people and several business organizations and ultimately returning the money as per the wants of the depositors. The term insurance means the process in which the insurer agrees to make good the loss of the insured. There are several types of insurance like life insurance, health insurance etc. For the smooth functioning of banks and financial institutions there are various rules and regulations formed by the legislature. These rules regulate the working of banks and other financial institutions. The banks like any other entity are under the obligation to follow various central and state regulations. The banks majorly deals with the different transactions that takes place on daily basis whereas the financial institutions majorly deals in serving customers to build their businesses. The banking laws are formulated with a view to regulate the lawful fulfillment of the duties allotted to the banks. The insurance laws on the other hand deals with the formation and execution of the Insurance contracts made between the parties.

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The banking system plays a very important role in maintaining the economy and financial strength of a country. In the time, where the world is dynamic in nature, the developing countries wants to become developed and already developed ones are eager to rise higher. It is important to note that for the overall growth of any country, a properly functioning banking system is a major requirement. The banking system becomes a pillar in the development of the nation and its economical position. Nonetheless, banks also play a role of financial supporter of the people of the country.

Insurance can be aptly defined as an armor to decrease or completely eliminate the risk attached to one’s life and property. Under the agreement of insurance, the insurer promises the insured to make up for the loss faced by the insured in exchange of an alleged premium fee. The risk against which a person can be insured includes the risk of death,fire,theft,damage etc. Any person can be protected against these risks on the payment of a premium proportionate with the risk involved. Insurance laws are those statutes which deals in policies and claims of insurance.

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Banking Laws in India:

In India, the laws for the administration and functioning of banks were formulated in the year 1949, two years after Independence. They enacted on 16th March,1949 and changed the whole banking system. Due to globalization and development of the businesses and trade, the banking institutions in India were becoming the main focus of the time.

In the British era, the most earlier improvement in the system took place with the foundation of Calcutta bank in 1806 followed by the Mumbai bank in 1867. Emperor bank came into existence in 1920, as a result of which the three banks were united with the position of President of Calcutta, Madison and Massa by the laws of the Bank of India.

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Insurance Laws in India:

In 1912, the very first statute to regulate the life insurance business came into being and was termed as the Indian Life Assurance Companies Act,1912. Then an act of wider scope formed which enacted for all types of insurance and to formulate strict rules for the insurance business.This was called the Insurance Act of 1938. Due to the Life Insurance Corporation Act,all the 245 insurance agencies working in India were converted into one entity in 1956 and called the Life Insurance Corporation of India. In the year 1972 every insurance company was merged into National Insurance, New India Assurance, Oriental Insurance and United India Insurance which had there headquaters in the metropolitan areas. Till the year 1999, no private insurance agency was left in India. The legislature formulated the Insurance Regulatory and Development Authority Act in 1999 which ultimately permitted the private businesses to carry on the insurance business. Further, the foreign investment was also permitted. The constraint to the FDI in the insurance sector was raised to 49% in the year 2015, subject to some conditions.

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Insurance Laws in UAE:

  • The nature of UAE in insurance market

In the Gulf Cooperation Council (GCC), the United Arab Emirates insurance market is the largest. In UAE there are three jurisdictions for insurance; namely the Onshore UAE market, the Abu Dhabi Global Market(ADGM) and the Dubai International Financial Centre(DIFC). In recent years, the Islamic insurance market is also growing within the UAE. The alternative system for cooperative islamic insurance is the Takaful Insurance that is also found there.

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  • The Insurance Regulator

The insurance market of UAE is regulated by the Insurance Authority(IA) which regulates the onshore insurance business. The IA was established in 2007 and the scope of its governance includes insurance and reinsurance companies, entities and intermediaries located in UAE. The UAE cabinet, recently passed an order in October,2020 for the IA to merge with the UAE Central bank. In January 2021, the Central Bank announced that it will take up the regulatory and supervisory responsibility of the insurance sector. Thus we can expect further changes and developments in the insurance sector of UAE in coming years.

Some important provisions of the Insurance law of UAE are worth mentioning-

  • Article 7 of the Insurance law talks about the responsibilities of the Insurance Authority.
  • Article 8 provides for the constitution of Insurance Authority and that it must include one board, director general and executive body.
  • Article 24 states the various forms of companies that are entitled to carry out insurance and reinsurance activities in the UAE.
  • Article 26 of the act talks about the limitations of the insurance companies. It protects the UAE properties from being insured outside the country.

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In the era of development and globalization, banking and insurance is the basic need of every country around the world for carrying on its activities globally and develop with the competitor countries. As globalization is increasing with an increase in the technology across the globe, the frauds that are taking place has also raised in number especially those dealing with the banking and insurance industry. All people should deal carefully to avoid risks and get insured for any unforeseen event. Insurance can be aptly defined as an armor to decrease or completely eliminate the risk attached to one’s life and property. Also one must be aware of the laws governing the insurance and its policies before getting one from the provider in order to get the maximum benefit of it. Insurance and banking sectors have come a long way in India and provides ample services at convinient fee which is accessible by the middle class people of the nation. The comparison of Indian and UAE insurance laws shows that both countries have their own way of functioning but the aim is common of both the countries. Insurance sector has come a long way and it still has a long way to go in future.


Tortious Liability of Companies in India and USA

By: Prashant Pathak


“A tort is a common wrong for which the cure is an activity for unliquidated harms and which isn’t solely the penetrate of an agreement, or the break of a trust, or the penetrate of other only impartial commitment”- Salmond

The term ‘tort’ was brought into the phrasing of English Law by the French talking legal counselors and Judges of the Courts of Normandy and Angevin Kings of England. As a specialized term of English law, misdeed has gained an exceptional importance as a types of common injury or wrong. Till about the center of the seventeenth Century misdeed was a dark term, when method was viewed as more significant than the privilege of a person. This accentuation on procedural perspective for deciding the accomplishment for a case proceeded for exactly 500 years, till 1852, when the Common Law Procedure Act was passed and supremacy of substance over the technique progressively picked up firmer ground. Today the adage as it stands seems to be ‘ubi jus ubi remedium’, for example where there is not too far off is cure.

Tort is what might be compared to the English word ‘wrong’ and of the Roman law term ‘delict’. The word misdeed is gotten from the Latin word ‘tortum’ which means contorted or abnormal or wrong and is as opposed to the word rectum which implies straight. It is required out of everybody to act in a clear way and when one goes astray from this straight way into screwy ways he is said to have submitted a misdeed. Thus misdeed is a lead which is wound or slanted and not straight. In spite of the fact that numerous conspicuous essayists have attempted to characterize Tort, it is hard to do as such for shifted reasons. The vital explanation among this being, that the law of Torts depends on chose cases. Judges while choosing a case, feel their essential obligation is to decree the situation close by as opposed to set down more extensive guidelines and consequently they only from time to time set out any meaning of a lawful term. Besides the law of misdeed is as yet developing. On the off chance that a thing is developing no acceptable definition can be given.

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It is relevant to comprehend what is implied by tortious obligation or rather the idea of misdeed law to comprehend its utility. To toss all the more light, the word misdeed developed, from at one time very nearly passing into abstract use as an equivalent for wrong yet after the center of the seventeenth century, a training started in the courts of the customary law, of recognizing activities in ‘contract’ for breaks of agreement and activities for different wrongs, and of utilizing the word ‘misdeed’ as a succinct title for the last class of activities. From that point forward it was regular to discuss ‘activities in agreement’ and ‘activity in tort'[1]. So a misdeed came, in law to allude to that specific class of wrongs for which an activity in misdeed was perceived by the courts of customary law as a cure and to lose the nonexclusive feeling of wrong which it might have helped in well known use.

Another fascinating consequence of this relationship of the word with a type of activity was that it came to allude likewise to the obligation of an individual who didn’t submit any misdeed or wrong, for example an expert who is sued for the harms by the individual harmed by a misdeed submitted by his servant[2]. This was on the grounds that an ‘activity in misdeed’ was the cure against the expert and in course of time and because of new requirements and conditions, the expert was held subject to pay harms despite the fact that he had not submitted any misdeed. So the law of misdeeds is that assortment of law which manages the risk of people against whom an ‘activity in misdeed’ would lie.

tort as we probably am aware today has developed throughout the long term and has filled immensely in nations, for example, the England, United States of America, and other reformist nations and partly in India. The primary investigation in this article anyway would spin around two parts of this part of law, initially, regardless of whether the law of misdeed in India is pointless and besides, whether the law of misdeeds has been basically disregarded. Prior to proceeding onward to the center subject it is basic to completely comprehend the significance of the term misdeed in the Indian setting.


In India the term tort has been in presence since pre-freedom time. The Sanskrit word Jimha, which means warped was utilized in antiquated Hindu law text in the feeling of ‘tortious of fake conduct’.[3] However, under the Hindu law and the Muslim law, misdeed had a much smaller origination than the misdeed of the English law. The discipline of violations in these frameworks involved a more noticeable spot than pay for wrongs. The law of misdeeds in India as of now, is mostly the English law of misdeeds which itself depends on the standards of the custom-based law of England. Anyway the Indian courts prior to applying any standard of English law can see whether it is fit to the Indian culture and conditions. The utilization of the English law in India has consequently been a particular application.

“We need to develop new standards and set down new standards which will enough arrangement with new issues which emerge in a profoundly industrialized economy. We can’t permit our legal deduction to be built by reference to the law as it wins in England or for the matter of that in any far off nation. We are absolutely set up to get light from whatever source it comes yet we need to construct our own law.”

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During British standard, courts in India were charged by Acts of Parliament in the UK and by Indian institutions to act as per equity, value and great still, small voice if there was no particular principle of authorized law relevant to the contest in a suit. As to suits for harms for misdeeds, courts adhered to the English customary law to the extent that it was consonant with equity, value and great still, small voice. They left from it when any of its standards seemed nonsensical and unsatisfactory to Indian conditions. An English resolution managing misdeed law isn’t by its own power pertinent to India however might be followed here except if it isn’t acknowledged for the explanation just referenced.


The law of torts in India depends on the standards of the English Common Law. Be that as it may, it has been adjusted to meet the nearby necessities. A portion of the significant standards of misdeeds incorporate carelessness, disturbance, trespass, vicarious obligation, severe and supreme risk. In setting of the current article, we will center upon the ideas of exacting and total obligation versus the two outstanding modern fiascos in India.

  1. a) Doctrine of Strict Liability

The regulation of “severe risk” advanced in Fletcher v. Rylands. For this situation, Rylands employed temporary workers to assemble a supply on his territory. While building it, the contractual workers found a few imperfections and left them unfixed. After some time, Rylands’ repository burst and overflowed Fletcher’s bordering mine causing £937 worth of harm. Blackburn, J. believed that any individual who for his own motivations welcomes on his property and gathers and keeps there anything liable to do underhandedness, in the event that it gets away from should keep it at his hazard and in the event that he doesn’t do as such, is at first sight responsible for all the harm which is the regular outcome of its escape.

  1. b) Doctrine of Absolute Liability

The guideline of “outright risk” was first historically speaking applied by the Supreme Court of India in M.C. Mehta v. Association of India (popularly known as Oleum gas spill case). For this situation, oleum gas spilled from a manure plant of Shriram Foods and Fertilizers, Delhi and made harm a few people. A forthcoming public interest suit (PIL) by M.C. Mehta gave the occasion to the Court to pass a progression of requests managing the eventual outcomes of gas spill. For this situation, the Court objected the utilization of the standard of severe risk

  1. Bhopal Gas Tragedy

Association Carbide India Limited’s (UCIL) plant at Bhopal was planned by its holding organization Union Carbide Corporation (UCC), USA and was inherent 1969 for making pesticides, created by responding Methyl Isocyanate and Alpha Naphthol. An occurrence of gas spill occurred in the Bhopal pesticide plant of UCIL the evening of 2-3 December, 1984 making extreme misfortune the lives of individuals in the region. Individuals were presented to this gas all around the city and the quick impacts were hacking, retching, serious eye disturbance and a sensation of suffocation. A huge number of individuals passed on quickly, and lakhs of individuals continued perpetual wounds.

Then, the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985was passed by Parliament to give certain forces on the Central Government to make sure about that cases emerging out of, or associated with, the Bhopal gas spill fiasco, are managed expediently, successfully, impartially and to the best bit of leeway of the petitioners and for issues coincidental thereto. This Act made the Union Government illustrative of the casualties of the misfortune and permitted them to record suits for their sake. Alongside this, an out of court settlement between the Government of India and Union Carbide was shown up at, which fixed the risk of the organization to pay $470 million according without limit and last settlement, everything being equal, rights and liabilities emerging out of that fiasco. With everything taken into account, it was a terrible move, as the settlement restricted the liabilities for the cases which were recorded later. It is a hard certainty, however it is as clear as open air that $470 million dollars were not adequate to remunerate all the harmed. Truth be told, it is not really 15% of the first case of $3.3 billion.

The pay granted was around Rs. 1 lakh for the groups of the individuals who lost their lives, Rs. 50,000 for forever harmed and Rs. 25,000 for briefly harmed.

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The idea of element obligation permits an enterprise to be held at risk for the criminal wrongdoings of its representatives if (1) the specialist is acting inside the real or evident extent of their business or authority and (2) if the specialists mean, in any event to some degree, to some way profit the organization through their activities. The organization can at present be held at risk for their representatives’ criminal offenses or activities regardless of whether the specialists’ activities are in opposition to corporate strategy or straightforwardly dismiss express requests of the enterprise. This standard was set up in New York Central and Hudson River Railroad v. US, 212 U.S. 481 (1909), where the court chose to expand the misdeed precept of respondeat better than criminal cases, setting up a type of corporate criminal obligation for activities of company’s representatives.


In Ogoniland, Nigeria, ecologically concerned protestors were beaten, assaulted, and murdered for shows contradicting forceful oil advancement in the Ogoni Niger River Delta. Nigerian nationals brought suit under the Alien Tort Statute (ATS) in the Southern District of New York, asserting that unfamiliar enterprises that work together in the United States helped and abetted these atrocities. In Kiobel v. Illustrious Dutch Petroleum Co., the Supreme Court held that unfamiliar organizations are not dependent upon obligation in the United States for tortious acts outside of the United States. Be that as it may, on the grounds that Kiobel managed an unfamiliar enterprise, the assessment left open whether or not a United States organization could be at risk for tortious acts outside of the nation, and the open inquiry brought about a circuit split. The Fourth Circuit has held that American partnerships can be sued for acts submitted outside of the United States, while the Eleventh Circuit has extended Kiobel and expressed that American courts need ward over these cases, hence excepting them in that circuit. The Fourth Circuit’s thinking is a superior examination of cases brought under the Alien Tort Statute (ATS) on the grounds that the resolution was proposed to give a solution for outsiders harmed by Americans. Thusly, the United States has a commitment to give a gathering to noncitizens to get pay for misdeeds submitted by Americans in different nations. Moreover, the ATS was made to manage an American resident’s lead outside of the United States. Without a court authorizing this commitment, companies have minimal solid motivation to screen workers’ potential tortious exercises abroad.

Kiobel v. Illustrious Dutch Petroleum Co.

 In Kiobel, Nigerian residents claimed that the Royal Dutch Petroleum Company and Shell Transport and Trading Company helped and abetted the Nigerian government in viciously stifling fights against forceful oil advancement in Nigeria. The offended parties looked to recuperate in United States court under the ATS for the savage, tortious acts submitted in Nigeria. The ATS gives that “the region courts will have unique purview of any considerate activity by an outsider for a misdeed just, dedicated disregarding the law of countries or a deal of the United States.” The offended parties asserted that the organizations abused Nigerian law. On allure, the Supreme Court confronted the issue of whether an ATS case could gives harms to activities by non-American enterprises a working in an unfamiliar area. The Court depended on a legal standard known as the “assumption against extraterritorial application” to discover that the ATS doesn’t cover these claims. The Court held that the assumption against extraterritorial application applies to claims under ATS, yet that nothing in the resolution counters that assumption, so the ATS didn’t matter to the cases in Kiobel. Further, all pertinent lead in Kiobel occurred outside of the U.S.However, the Court expressed that if claims “concern the domain of the United States,”they can refute the assumption against extraterritorial application, yet should have adequate power to do so. Thus, this holding left open whether or not government courts have position to hear claims with respect to tortious acts submitted outside the United States yet that “contact and concern” the United States by prudence of their American tortfeasors.

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