NOV DEC 2023 Welcome to the latest issue of ALB India magazine, where we turn our spotlight onto the dynamic realm of intellectual property (IP). In this edition, we present a list of India’s leading IP lawyers who have demonstrated exceptional expertise in navigating the intricacies of intellectual property law. Their contributions have not only shaped the landscape of IP protection but have also played a pivotal role in safeguarding the innovation-driven economy of the nation. Delve into insightful viewpoints from noted IP practitioners, offering a glimpse into the evolving trends, challenges, and opportunities within the Indian IP ecosystem. Uncover the essence of their experiences as they share perspectives on the ever-changing legal landscape surrounding patents, trademarks, copyrights, and trade secrets. Additionally, a feature explores the surge in domestic patent filings in India, emphasising how this uptick is driving the demand for technically savvy IP lawyers. As the country continues to foster a culture of innovation, the need for legal professionals well-versed in the technical intricacies of intellectual property has never been more pronounced. As we embark on a new year, we extend our warmest wishes to the readership of ALB India. May 2024 bring you continued success, prosperity, and countless opportunities for growth. Happy New Year! – RANAJIT DAM CHARTING NEW FRONTIERS IN IP EXCELLENCE Bingqing Wang Rankings Editor bingqing.wang@tr.com Rowena Muniz Copy & Web Editor rowena.muniz@tr.com John Agra Senior Designer john.agra@tr.com Rozidah Jambari Traffic / Circulation Manager rozidah.jambari@tr.com Krupa Dalal Sales Manager krupa.dalal@tr.com (91) 87 7967 7503 Ranajit Dam Managing Editor ranajit.dam@tr.com Amantha Chia Head of Legal Media Business, Asia & Emerging Markets amantha.chia@tr.com Nimitt Dixit Asia Writer nimitt.dixit@tr.com
2 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE NOVEMBER-DECEMBER 2023 In the spotlight As in other years, ALB has identified top-notch intellectual property lawyers in India, acknowledged for their handling of cutting-edge legal matters and exceptional performance, with the selection being made based on submissions received by ALB. The list is in alphabetical order, and certain lawyers have been profiled. INDIA TOP IP LAWYERS 2023 LIST BY ASIAN LEGAL BUSINESS, TEXT BY BINGQING WANG Pravin Anand Anand And Anand Sharda Balaji Novojuris Legal Arjit Benjamin Prosoll Law Rahul Beruar Beruar & Beruar Gaurav Bhalla Alahwat & Associates Durga Bhatt Peritum Partners Sujata Chaudhary Sujata Chaudhari IP Attorneys Abhimanyu Chopra AZB & Partners Himanshu Deora King Stubb and Kasiva Mohan Dewan R K Dewan & Co Rahul Dhote ANM Global Bharadwaj Jaishankar Induslaw Mamta Rani Jha INTTL Advocare Meeta Kadhi Mansukhlal Hiralal & Co Tarun Khurana Khurana & Khurana Nikhil Krishnamurthy Krishnamurthy & Co and copyright registrations. He also has substantial experience in complex prosecution, high-stakes oppositions, invalidation actions and appeals. He has rendered numerous opinions on IP infringement and invalidity. Saurastril also regularly represents parties before Courts on patent, design, copyright and trademark infringement and unfair competition (passing off, disparagement, defamation, breach of confidence, misleading advertisements) cases. He has also advised on management, protection of trade secrets and confidential information, data and privacy, and on competition law. Additionally, Saurastril has massive experience in negotiating technology transfers, joint venture agreements, M&As, business transfers, share and asset purchases, licenses, franchises, and distribution agreements. Anshul Sunil Saurastri Partner, Krishna & Saurastri Associates Anshul Sunil Saurastri is Partner at Krishna & Saurastri Associates. He is responsible for overseeing the day-to-day management and overall strategic initiatives of the firm. Saurastril’s practice is focused on all aspects of intellectual property, dispute resolution and corporate law. He is known for a practical, commercial-minded, and multi-disciplinary approach. Saurastril serves as trusted counsel to domestic and multinational clients. He has extensively advised on protecting brands, inventions, product designs, and creative works, and has procured numerous trademarks, patent, designs, Image: Sergey Nivens/Shutterstock.com NovoJuris Legal Sujata Chaudhri Sujata Chaudhri partner, King Stubb & IndusLaw Anand and Anand partner
3 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM He also has considerable experience in handling commercial disputes involving contracts, business torts, shareholders, and employment through litigation or arbitration. Prior to practicing law, Saurastril worked in the US in PE/VC and R&D. He holds a Master’s in Engineering from the University of Pennsylvania (UPenn), Bachelor’s in Applied Sciences from Case Western Reserve University and Law Degree from GLC, Mumbai. He is an Advocate/Attorney at Law and Patent Attorney. Saurastril serves as Member of INTA’s Unfair Competition Committee (Leader of Trade Dress Task Force), AIPPI’s Standing Committee on Trade Secrets and Member Executive Council and Chair - Dispute Resolution Committee, LES India. He is also an active member of APAA, AIPLA, IBA, IPBA, and ABA. He frequently lectures at seminars, conferences, and universities. He has also authored numerous articles. He has been honoured with several awards and accolades including INTA’s prestigious Rising Star, ALB India Top IP Lawyers and Super 50 Lawyers, ALB Asia 40 under 40, Future Legal Leaders India, India Legal Powerlist, Recommended Lawyer, etc. METHODOLOGY For the list of ALB India Top IP Lawyers 2023, the research team has reviewed submission received during the period from May 5 to September 22 this year made by lawyers with relevant expertise in the intellectual property practice in the country. The evaluation has been made primarily by assessing the lawyers’’ work in the chosen field in the last 12 months based on the following criteria: • complexity of matters involved; • strategies employed while handling such matters; • influence of such matters in relevant field; • innovative nature of such matters. Other aspects that have been taken into consideration include: • significant matters handled in the entire career; • key clients; • new clients; • significant accolades/thirdparty award or recognition; • client comments; • comments from managing partner or colleague. Abhishek Malhotra TMT Law Practice Neel Mason Mason & Associates V.C. Mathews Fox Mandal & Associates Sanika Mehra Saga Legal Vaishali Mittal Anand And Anand Rahul Parmar InventIP Legal Services Prashant Phillips Lakshmikumaran and Sridharan Statira Ranina ALMT Legal Dev Robinson Shardul Amarchand Mangaldas & Co. Meera Chature Sankhari Jupiter Law Partners Anshul Sunil Saurastri Krishna & Saurastri Associates Nakul Sharedalal NS Legal Santosh Vikram Singh Fox Mandal & Associates Manisha Singh Lex Orbis Aditi Verma Thakur Ediplis Counsels Sanjeev Kumar Tiwari K&S Partners N/A Anand and Anand & Sridharan
4 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE NOVEMBER-DECEMBER 2023 During a technological revolution, the legal industry plays a pivotal role in ensuring continuous innovation by protecting intellectual property. In this context, two prominent intellectual property lawyers in the country shed light on the unique challenges faced by India’s IP market, providing insights into how their practice is navigating the growing challenges of IP protection in the digital age. ALB: Over the past year, can you highlight a significant case or project in the field of intellectual property that you worked on, showcasing the unique challenges and solutions you provided for your clients? Arjit Benjamin, associate partner, Prosoll Law: There was an ongoing debate this year over whether music can be played in marriage-related ceremonies in locations where there is a possibility of a commercial gain. We were approached by a client pursuant to a license fee demand by a copyright society for their music to be played in a certain hotel premises. There were mixed opinions by various courts on the said aspect till the Department of Promotion of Industry and Internal Trade (DPIIT) issued a public notice in July highlighting that playing of sound recordings or live performance of songs in marriages and other social festivities associated with marriage without obtaining licenses should not be considered as copyright infringement, but what qualified as social festivities associated with marriage is still not clear. Will a marriage anniversary qualify as a festivity associated with marriage, or will a marriage reception held a fortnight after the marriage ceremony qualify as a festivity associated with marriage? We are currently assisting our clients in pursuing the cases on the basis of the nature of the events, the nature of the festivities and the extent of the association with marriage. Rahul Parmar, co-founding partner, InventIP Legal Services: One standout instance was our assistance in defending a potential patent infringement suit. Through meticulous analysis, we were able to clearly distinguish our client’s products and software from the alleged patent, averting what could have amounted to a significant financial burden potentially ranging between $1.5 and $3 million. Additionally, we contributed to the establishment of structured processes for capturing patent-worthy ideas, and setting up efficient intellectual property (IP) procedures. Our involvement extends to participating in the patent committee, which regularly convenes to assess ideas originating from various sources and recommends those deemed worthy of filing to the higher management. Following approval, we assisted them in drafting, filing and prosecuting patent applications, ensuring comprehensive support throughout the IP lifecycle. ALB: In the realm of intellectual property, client requirements can vary widely. Could you share an example of a client with specific needs or expectations that required a tailored approach, and how you addressed those demands effectively? Benjamin: We recently advised an international technology company on issues arising out of violation of obligations under a technology licensing DECODING INDIA’S IP LANDSCAPE IN THE DIGITAL AGE During a technological revolution, the legal industry plays a pivotal role in ensuring continuous innovation by protecting intellectual property. In this context, two prominent intellectual property lawyers in the country shed light on the unique challenges faced by India’s IP market, providing insights into how their practice is navigating the growing challenges of IP protection in the digital age. BY NIMITT DIXIT Image: Sasin Paraksa/Shutterstock.com Viewpoint
5 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM agreement with an Indian entity, pertaining to misuse of their IP. We helped the client identify and articulate the specific rights and obligations related to the use, transfer, and protection of the licensed technology, which included specifying payment terms, duration of the license, and restrictions on use or sublicensing. The client also apprehended that the Indian entity may misappropriate the IP. We advised the clients on confidentiality and non-disclosure provisions to prevent the misappropriation, including the scope, duration and permitted uses of confidential information. We followed an approach that was a unique combination of legal expertise, industry knowledge, cultural understanding, and a keen awareness of the unique aspects of the technology being licensed, which helped in advising the clients to devise a strategy that not only met legal requirements but also served the commercial objectives of the parties involved. Parmar: A client operating in the technology sector, who had a unique portfolio of innovations spanning hardware, software, and proprietary algorithms, came to us with specific needs that necessitated a tailored approach. The client’s emphasis on rapid product development cycles required an accelerated patent filing process, prompting us to streamline internal workflows and collaborate closely with inventors to meet tight deadlines. In another example, a founder of the social enterprise ‘Geeli Mitti’ that works on generating livelihood for marginalised communities, asked if there was a way to protect their innovative idea related to brick composition. Based on initial discussion, we suggested that filing a patent application would be the best way forward. They had almost zero written material as to the composition and the overall process of manufacturing these bricks. We held numerous detailed discussions to extract essential information for a well-drafted patent application. We guided them by showcasing relevant granted patents and walking them through the technical depth necessary for a comprehensive patent application. We conducted a patentability search and transformed complex information into easily understandable content that highlighted the nuances of their innovation. We drafted a patent application, which got granted within a year of filing without even moving on to the hearing stage. ALB: With the rapid advancements in technology, particularly in generative AI, how has your practice adapted to the changing landscape of intellectual property law? Have you encountered any novel challenges or opportunities arising from these emerging technologies? Benjamin: While the preservation of creators’ and innovators’ rights remains of utmost importance, fostering an environment conducive to AI-driven innovation is equally imperative. Revisions within India’s copyright and trademark framework should aspire to explicitly delineate authorship and ownership concerning AI-generated creations, tackle the criteria of originality for such works, establish lucid directives for copyright infringement involving AI, and offer insights into fair use within the purview of the Copyright Act of 1957. Concurrently, the Trade Marks Act of 1999 should bring forth clarity regarding the distinctiveness and protectability of AI-generated trademarks, elucidating the role of AI in the context of trademark registration. Parmar: With the rise of generative AI, we acknowledge its unique challenges, such as determining ownership rights for AI-generated works. Our IP professionals investigated these complexities, providing complete advice on intellectual property protection, licensing, and enforcement in the context of AI-generated technologies. InventIP has also managed to discover fresh opportunities in this dynamic environment. Our team is constantly looking for new ways to use generative AI to serve our clients, whether to speed up patent searches, improve trademark analysis, or streamline the IP management process with utmost caution. ALB: As businesses increasingly embrace digital platforms and online presence, how has the demand for intellectual property services evolved? Are there specific trends or patterns you’ve observed in the types of IP issues clients are seeking assistance with? Benjamin: The surge in businesses operating in digital spaces has substantially enhanced the need to protect IPR, even by individuals, small businesses, and SMEs. This increased demand has seen an uptick in areas such as trademark registration, copyright protection, and patent filing. More businesses are now aware that they require comprehensive strategies to safeguard their online brand presence, leading to an increased demand for trademark services to secure exclusive rights to logos, brand names, and product designs. Similarly, with a growth in the number of influencers, the varied and diverse nature of content creation, and the dissemination of content on a range of digital platforms, the need for copyright protection has heightened. Growing companies, who invest significant budgets in creating marketing strategies are seeking legal counsel with respect to protecting digital content, including text, images, videos, and software, from unauthorised use or reproduction. Parmar: The demand for IP services has increased significantly considering the era of evolving digital terrain. We’ve certainly noticed a significant shift in client needs, reflecting the growing importance of digital property protection. Businesses that use online platforms are more cognizant of IP needs, particularly in securing trademarks, patents, and copyrights linked with digital products, brands, and inventions. Certain trends, such as the rise in the e-commerce sector, have resulted in an increase in trademark infringement proceedings, emphasising the importance of strong brand protection methods. Clients are also proactively addressing issues such as data privacy, domain name disputes, and patent applications for digital inventions. Arjit Benjamin Rahul Parmar
6 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE NOVEMBER-DECEMBER 2023 Image: enzozo/Shutterstock.com A RISE IN DOMESTIC PATENT FILINGS SIGNALS INNOVATION-DRIVEN TECH GROWTH BY NIMITT DIXIT India has experienced a record year in terms of patent filings and grants as per the latest international and government indicators, signalling an increase in innovation-driven growth in the country, and a rise in demand for technically savvy lawyers. The World Intellectual Property (WIPI) Indicators report released by the World Intellectual Property Organization in November found that global patenting activity soared to new records in 2022, fueled primarily by Indian and Chinese innovators. Meanwhile, India’s commerce and industry minister, Piyush Goyal, said that the Indian Patent Office had granted a record 41,010 patents this year – as of Nov. 15 – up from 4,227 patents in 2014. This increase in Indian patent filings is primarily due to the increase in filings by Indian residents, companies, and institutions, as opposed to foreign entities. The WIPI report found that patent applications by residents of India grew by 31.6 percent in 2022, extending an 11-year run of growth unmatched by any other country among the top 10 filers. This 31.6 percent increase is the largest for any major country across the globe, the WIPI report said. This rapid rise of patent filings in the Indian market is a product of increasing innovation-driven growth, increasing ease of filing, increasing number of startups, and an increasingly robust regulatory and enforcement mechanism for patent holders, says Pravin Anand, managing partner of India’s top IP firm Anand and Anand. Regulators have also increased the speed at which they are processing applications, given the growth in the number of applications, and have extended special provisions for expedited examination of applications to a wide category of people. The provision for expedited examination, which was initially drafted and enforced for startups, was later extended to SMEs, female applicants, government departments, institutions established by a central, provincial or state act, which is owned or controlled by the government and applicants under patents prosecution highway, explains Anand. Notably, the largest chunk of patents filed was from the information technology sector, a trend that also reflects global filings. Inda’s growing number of technology startups and tech-focused educational institutions are significant reasons for this increase in filing. “Fee concessions to education institutes have also played a major role in increased filing. Interestingly, 3 out of the top 5 Indian patent applicants in the IT sector are education institutes,” says Anand. The Delhi High Court’s 2019 judgement in Ferid Allani v Union of India, which liberally interpreted the law to prevent opposition to computer-related patents, has also finally borne fruit, Anand said. This ease of filing has led to a double-digit growth in the stock of pending applications between 2021 and 2022 as well. According to Anand, a shortage of manpower, frivolous and multiple pregrant oppositions and a non-binding timeline for submission of the first examination report by the government are the main reasons the application process time is lagging behind the increase in filings. “In comparison to foreign jurisdiction, the Indian patent system does not have sufficient technical manpower to process applications. As of 2020-2021, India only had around 600 examiners and over 200 controllers handling over 60,000 patent applications,” Anand says. Nevertheless, an increase in filings is pushing law firms to acquire more talent themselves. Lawyers and experts with technical knowledge have been in high demand. “More work requires more talent, and thus, talent hunting and hiring has also increased, says Anand. “The legal industry will witness an inflow of lawyers with technical expertise and also technical experts,” he adds. The increase in patent filings has also prompted the government and law firms to invest more in technology to increase efficiency. “Filing patent applications in multiple jurisdictions has become easier due to introduction of e-filing platform. Moreover, the virtual hearing facility has further reduced the burden of travelling for hearing,” says Anand. “Firms have switched to e-mode for ease of business. All the records are digitised and easily accessible. Upgrade in databases and software being used by firms will offer more robust deadline management and expedite and take care of day-to-day clerical activities,” he adds.
7 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM BROUGHT TO YOU BY SARTHAK ADVOCATES & SOLICITORS A significant factor in deciding to invest funds in a foreign jurisdiction is the robustness of the court system to maintaining rule of law and enforcing disputes. In fact, these parameters form part of the World Bank’s Ease of Doing Business indicia. India – being a vast geographical entity – has a diverse legal and judicial system. While it is not possible to discuss all nuances of India’s dispute resolution mechanisms in this piece, we will attempt to outline the major initiatives of the Government of India and/ or Indian judiciary to increase investor confidence. Over the last decade or so, there have been several legislative amendments that have been focused on improving the sentiment of the business community. One of the most significant developments has been the enactment of the Commercial Courts Act, 2015 (“CCA”), which provides for specialized courts at all levels of the judiciary. Enacted in 2015, the CCA aims to enhance the efficiency of the legal system in handling high-value commercial cases. The CCA also made significant changes to the Code of Civil Procedure, 1908 to provide a time-efficient regime for commercial disputes, while adhering to principles of natural justice. This effort has been supplemented with the efforts of various High Courts in providing more robust rules for discovery and inspection of documents, online filings, special rules for intellectual property disputes. According to the data published by Government of India, there has been a significant reduction in time taken for trial and judgment (1095 time-days in 2020) to 424 (Delhi) and 306 (Mumbai). In 2018, the CCA was amended, introducing two pivotal changes: a) It reduced the pecuniary jurisdiction of Commercial Courts from INR 1,00,00,000/- (Rupees One Crore only) to INR 3,00,000/- (Rupees Three Lakhs only), encompassing a significantly larger number of cases under the CCA. This adjustment aimed to enhance the ease of doing business in India and attract foreign investors. b) Section 12A was introduced mandating that a party filing a suit under the CCA must exhaust the remedy of mediation before institution of the suit (“Pre-Institution Mediation”). The data on Pre-Institution Mediation in commercial disputes shows that the measure has met with limited success, partly because of the lack of any deterrent measures against parties who refuse to participate and other attitudinal factors affecting litigating parties. The Indian government has taken further strides to promote mediation as a means to resolve disputes in India. India has a longstanding history - whether in the form of Panchayats for community conflict resolution or codified in Section 89(1) of the Code of Civil Procedure, 1908, which empowers courts to recommend arbitration, conciliation, judicial settlement, or mediation as alternative dispute resolution methods. In order to promote and facilitate mediation (particularly in the private sphere), the government introduced the Mediation Bill, 2021. After a review by the Standing Committee the bill, now titled Mediation Act, 2023 (“Mediation Act”), received presidential assent on September 15, 2023. As of the date of this piece, only some provisions of the Mediation Act, 2023 have been notified. Fundamentally, the primary objective of the Mediation Act is to encourage and streamline the process of mediation in domestic disputes. It places specific emphasis on institutional mediation, online mediation, and community mediation, all geared towards expeditiously resolving disputes. Additionally, the Mediation Act includes provisions for the enforcement of mediated settlement agreements and the establishment of a regulatory body responsible for registering mediators and institutions. It is hoped that the Mediation Act will alleviate the court backlog and encourage alternative dispute resolution methods. As of March 2023, the high courts of India are grappling with 60,50,600 pending cases, while district courts are burdened with 4,27,18,466 cases.1 Unlike the CCA, the Mediation Act does not mandate Pre-Institution Mediation in all cases. The legislative journey of the Mediation Act, including input from the Standing Committee, reflects a deliberate effort to strike a balance between voluntary participation and judicial involvement. This process aims to safeguard the confidentiality and privileged communications of parties seeking amicable dispute resolution. However, it must be noted that the Mediation Act does not adopt the Singapore Convention on Mediation, to which India became a signatory in August, 2019. The bulwark of dispute resolution – particularly in the commercial contracts – is also supported by arbitration. Arbitration serves as a crucial pillar in the architecture of dispute resolution in India. In the contemporary context, it has emerged as the predominant default mechanism within the legal framework of India due to its efficiency, flexibility and confidentiality. The intricate arbitration legal framework in India is regulated by the Arbitration and Conciliation Act, 1996 (“1996 Act”). This comprehensive statute encompasses diverse arbitration scenarios, encompassing both domestic and international arbitration, as well as addressing the enforcement of foreign awards and conciliation in accordance with the UNCITRAL Conciliation Rules of 1980. Measures such as streamlining arbitration procedures, implementing mandatory pre-arbitration steps, and establishing time constraints for arbitrations are being adopted to enhance efficiency and cut costs. Crucially, the Indian judiciary has embraced a pro-arbitration stance, adding to the credibility of the arbitration process. Courts are increasingly supportive of arbitration agreements and demonstrate a willingness to enforce arbitral awards. However, some teething issues remain including the time taken in challenges to arbitral awards, enforcement and realisation of the arbitral award. India has amended the 1996 Act in 2015 and 2018 to align it with international standards, underscoring the nation’s dedication to promoting international arbitration. Despite these advancements, challenges persist in the form of backlog issues and the selection of arbitrators, adversely affecting the swiftness of the arbitration process. This also encompasses India’s capacity to adopt technological innovations to uphold procedural efficiency and efficacy. India’s potential as a global leader in arbitration hinges on its judicial system’s approach to fulfilling the additional goals and prerequisites of arbitration. Implementing such enhancements are pivotal for India to attain true global competitiveness in the field. Dispute Resolution in India 1 - Mani Gupta, Partner 2 - Pranav Malhotra, Senior Associate Sarthak Advocates & Solicitors S-134 (LGF), Greater Kailash-II, New Delhi-110048 T: (91) 11 4171 5540, (91) 11 4155 4393 E: contact@sarthaklaw.com W: www.sarthaklaw.com 1 2 1 Shri Kiran Rijiju, Minister of Law and Justice, answering a question in Lok Sabha on 17 March 2023.
8 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE NOVEMBER-DECEMBER 2023 Forum WHAT TO EXPECT IN 2024 The year gone by was a big one for the Indian legal market. The market opened to international law firms and disruptive technology-based tools and practices. More lawyers set up specialised firms, and in-house counsel got a lot more sophisticated. Continuous regulatory reforms promised new work as transactional lawyers looked to adapt to a global slowdown and a funding winter. Law firms say that 2024 will bring more investment in in-house capabilities, adoption of technology, focus on new laws like data privacy, and increase of sectoral and business knowledge. BY NIMITT DIXIT 2023 has been a milestone year for the Indian legal market in more ways than one. What are the lessons you take away from the legal practice this year, and how will this affect your strategy in 2024? Prashant Mara and Ramesh Vaidyanathan, co-managing partners, BTGAdyava We have seen many companies ramping up their in-house legal teams and restricting (as far as possible) their dependency on outside counsels to only specialised and complex matters. This almost necessitates lawyers not just to have legal knowledge but also sectoral expertise and provide more commercial advice. We anticipate ESG to continue being a big focus across practices, with lawyers having to provide more ESG-proof legal advice to clients. The new set of laws, such as data privacy, the new criminal laws, labour codes, and the regulators (who are increasingly becoming proactive) are likely to keep both corporate counsels and private practitioners busy. We also expect a lot of conversation around AI and other emerging tech, as businesses continue to adopt them in their daily operations, pressing the need for regulations around it. Outside counsel will need to engage with commercial, technology and business teams more than ever before to deal with the new and emerging areas of regulation. Equally, outside counsel will need to know the pulse of the regulators on the ground in these areas and make their advice more practical to withstand regulatory scrutiny. Debanjan Mandal, managing partner, Fox & Mandal 2023 has experienced a swift transformation in the legal market marked by the rise of advanced legal technology, and shifting client demands. Embracing technological investments to enhance efficacy is going to be a must for the year 2024. Further, as the legal landscape evolves, there has been a noticeable surge in the need for niche industry sector knowledge. Our approach for 2024 involves a concentrated effort towards understanding the clients’ business. We are working on achieving this through internal training initiatives such as continuous learning and education programmes built around our clients’ business needs. As part of the strategy for this year, the plan is to integrate technology aimed at enhancing communication, and turnaround time for deliverables. As already stated, continuous learning, innovation, adapting legal tech, and client-centricity will be key to navigating the future of legal practice in India. Vidushpat Singhania, managing partner, Krida Legal The promotion of arbitration and alternative dispute resolution mechanisms in sports will be a top priority through the establishment of the Centre for Entertainment and Sports Resolution. This centre will play a crucial role in facilitating dispute resolution within the realm of sports. In the gaming sector, the Ministry of Electronics and Information Technology introduced governance and grievance redressal mechanisms in 2023. A centralised implementation could expand the legal industry’s role from compliance and advisory to dispute resolution. Further, digital platforms’ rise has led to complex contracts in the entertainment sector, emphasising the need for clear agreements to avoid disputes. Our focus includes advising on data protection laws, especially regarding user data from digital platforms, anticipating increased emphasis on privacy and regulatory compliance. Staying informed about regulatory changes and assisting clients in navigating challenges will be a key focus in this evolving sector.
9 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM FOR MORE INFORMATION, KINDLY VISIT https://www.legalbusinessonline.com/ihs/MUMBAIIHLS2024 *Complimentary passes are available exclusively to in-house counsels and general counsels from corporations only. All confirmed participants will be notified via email. ALB reserves the right to cancel any registrations at any time if they do not meet the profile stated above. Representatives from law firms, legal service providers and independent lawyers/consultants are welcome to contact our sponsorship team. 3 APRIL - MUMBAI, INDIA ALB MUMBAI IN-HOUSE LEGAL SUMMIT 2024
10 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE NOVEMBER-DECEMBER 2023 Explainer COULD THE LISTING OF A NOT-FOR-PROFIT REVOLUTIONISE SOCIAL SECTOR FINANCING? SGBS Unnati Foundation, a Bengalurubased not-for-profit organisation (NPO), became the first such entity to be listed on India’s social stock exchanges (SSE) just a year after the authorities allowed for such listings in order to promote a transparent and credible way for NPOs to raise funds. In a first-if-its-kind deal, the listing involved the issuance of a zero-coupon-zero-principal (ZCZP) bond offering for 20 million rupees ($240,000) with a minimum application size of 200,000 rupees. These bonds are listed on the SSEs of the Bombay Stock Exchange (BSE) and the National Stock Exchange (NSE). Richa Choudhary, a partner in Trilegal’s capital markets practice who guided SGBS Unnati on its listing, says that since then, SSE activity in the country has seeing an uptick, given the low cost and regulatory barriers in listing. However, the process still has some teething issues. HOW DOES AN NPO ISSUE PUBLIC SECURITIES? According to Choudhary, an SSE is a separate segment of a recognised stock exchange having nationwide trading terminals, which is permitted to register NPOs and list the securities issued by them. “Accordingly, SSEs provide a platform for NPOs to raise funds by issuing securities, namely ZCZPs. SSEs also allow NPOs to accept donations from mutual funds,” she notes. ZCZP is an instrument tailored for the social development sector. Technically, a security under law is “neither equity nor debt. It acts as a mode of raising funds, and its tenor is tied to completion of the purpose for which the money was raised. It is currently a non-tradable instrument, and the subscriber will hold it till the tenor expires. There is no principal, which is repaid upon maturity, and there is no interest payable. Accordingly, it is a new avenue for providing donations,” Choudhary explains. “It also has potential in structured impact financing, where it can be coupled with other financing structures to fund social development projects,” she adds. But what makes listing on an SSE more efficient for an NPO than traditional funding methods? SSEs will act as a catalyst to NPO fundraising by providing access to larger pools of capital, increasing transparency and donor confidence, minimising compliance costs, and increasing the geographical reach, Choudhary explains. “The advent of SSEs has provided NPOs an opportunity to tap into capital markets akin to how traditional body corporates access capital markets to raise funds. This will provide them with access to liquid capital, which is available on the bourses, similar to body corporates. On an aggregate basis, an NPO can raise large amounts of funds on SSEs. Further, from a donor perspective as well, individual donation sizes can also be larger as NPOs can now raise funds from domestic institutions as well. This opens up a completely new avenue of fundraising for the social sector and will result in a much larger inflow of funds over time,” she adds. WHAT CHALLENGES DID THIS FIRST-TIME LISTING FACE? While SSEs have the potential to change how NPOs secure funding in the long term, the regulation is still in its nascent stage, and Choudhary explains that Unnati’s listing required significant regulatory analysis of the capital raising framework and liaising with India’s security regulator, the Securities and Exchange Board of India (SEBI), stock exchanges and the Ministry of Corporate Affairs. Detailed guidance on disclosures, filing, subscription, applications, and listing were unavailable and had to be drawn from scratch in consultation with other intermediaries. “The treatment of hybrid instruments such as ZCZPs from an accounting perspective was also unclear. Accordingly, solutions had to be devised for such issues in consultation with regulators,” Choudhary says. There are teething issues with eligibility of donors as well, she explains. “Retail individual investors aren’t permitted to access SSEs, and investing in corporate social responsibility funds is also a grey area. As per present guidance, no foreign investors are permitted to participate, and subscription is limited to domestic institutional and non-institutional investors.” WHAT DOES UNNATI’S LISTING MEAN FOR OTHER NPOs? SSEs have remained untapped due to these teething issues, a lot of which have been tackled by Unnati’s pioneering issuance through constant discussions among stakeholders and regulators. This will pave the way for easier listings on SSEs in the future. Choudhary points out that listing on SSEs in India is more advantageous as they are embedded within the NSE and the BSE, which are fully functional exchanges with robust market infrastructure. “Unavailability of state-of-the-art infrastructure, which has been a problem in other jurisdictions which implemented SSEs, will not be a hurdle in India.” “The uptick in the SSE trend is also indicative of SSE activity. After Unnati, two more NPOs have filed their draft fundraising documents, which is a good indicator,” she adds. BY NIMITT DIXIT became the first entity to be listed on India’s social stock exchanges (SSE) In a first-of-its-kind deal, the listing
11 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM Law Firm Hires MONIKA BHONSALE LEAVING AZB & Partners JOINING Trilegal PRACTICE Real Estate LOCATION Mumbai POSITION Partner MANISH GUPTA LEAVING IndusLaw JOINING Shardul Amarchand Mangaldas & Co PRACTICE Corporate LOCATION Gurugram POSITION Partner AVIRUP NAG LEAVING Luthra and Luthra Law Offices JOINING Saraf and Partners PRACTICE Projects LOCATION New Delhi POSITION Practice Head SAMPATH RAJAGOPALAN LEAVING EY JOINING Trilegal PRACTICE Corporate LOCATION New Delhi POSITION Partner SHRUTI SINGH LEAVING Khaitan & Co. JOINING Shardul Amarchand Mangaldas & Co PRACTICE M&A LOCATION New Delhi POSITION Partner News KHAITAN SETS UP OFFICES IN AHMEDABAD, PUNE Khaitan & Co, India’s largest law firm by headcount, has established two new offices in Western India. It has opened an office in Ahmedabad after luring back project finance lawyer Atman Desai from Cyril Amarchand Mangaldas, and one in Pune. These new offices further expand Khaitan’s network, which also has a presence in Mumbai, Delhi NCR, Kolkata, Chennai, and Singapore; the last two opened in 2021. According to the ALB Asia Top 50, Khaitan now has more than 1,020 lawyers across these offices. Ahmedabad is the largest city in Gujarat, the home state of Indian Prime Minister Narendra Modi. Between 2019 and 2023, Gujarat attracted $31 billion in foreign direct investment, and also is India’s largest exporter. Desai has almost 15 years of experience advising on project development, commercial contracting, government bids, and policy and regulation advisory in the infrastructure sector. He has advised clients on transactions with a specific focus on ports, data centres, power, mining, oil and gas (downstream) and highways. Desai’s clients have included the Adani Group, SBI Capital Markets, State Bank of India, and Micron Technologies. He returns to Khaitan after spending over a decade at Cyril Amarchand Mangaldas. “Atman will be based in Ahmedabad, and his role will also encompass extending the firm’s overall service offerings to our existing and new clients, with a specific focus on Western India,” Khaitan said in a statement. Meanwhile, the Pune office will be manned by three partners who are relocating from Mumbai. They are Radhika Iyer (corporate), Shailendra Bhandare (IP), and Devendra Deshmukh (real estate). “Our focus in Pune will be on advising clients across full suite of services, including corporate and commercial, M&A, private equity and venture capital investments, intellectual property, real estate, corporate restructuring, banking and finance, capital markets, tax and dispute resolution,” the firm added. Dmitrijs Kaminskis/Shutterstock.com power, mining, oil and gas (downstream) and highways. Bank of India, and Micron Technologies. He returns to Khaitan after spend- “Atman will be based in Ahmedabad, and his role will also encompass extending the firm’s overall service offerings to our existing and new clients, with a specific focus on Western India,” Khaitan said in a statement. Meanwhile, the Pune office will be led by partners Radhika Iyer (corporate), Shailendra Bhandare (IP), and Devendra Deshmukh (real estate). “Our focus in Pune will be on advising clients across full suite of services, including corporate and commercial, M&A, private equity and venture capital investments, intellectual property, real estate, corporate restructuring, banking and finance, capital markets, tax and dispute resolution,” the firm added. Desai has almost 15 years of experience advising on project development,
12 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE NOVEMBER-DECEMBER 2023 ‘WE NEED TO RECALIBRATE OUR APPROACH TO COMPETITION REGULATION IN THE DIGITAL ECONOMY’ ALB: What are your immediate priorities and long-term goals as the new chairperson of the CCI? Can you outline any specific initiatives or reforms you plan to introduce during your tenure to further enhance the CCI’s capabilities as well as competition in the market? Kaur: Presently, our focus is on finalising regulations by following an open, transparent process of consultations with stakeholders to operationalise the various provisions of the Competition (Amendment) Act, 2023. Priority is being given to resolving pending cases related to antitrust and mergers and acquisitions. This was crucial given the backlog that had built up due to the lack of quorum before my appointment. The instrument of market studies will be used increasingly for a better understanding of markets and the potential competition concerns therein. The commission has accorded inprinciple approval for setting up a Digital Markets and Data Unit in CCI, which will act as a specialised interdisciplinary centre of expertise for digital markets. The unit will connect with experts, engage with industry, academia, other regulators/departments, and international agencies, provide inputs on policy issues, support data analytics/management, and undertake any other task assigned to it in the context of digital markets. Other priority areas will continue to evolve in the next few years, and we are committed to acting proactively in all such matters. Furthermore, it is important to understand that markets are dynamic, and we need to keep a watch and pace with rapid technological advancements and understand their implications for market competition. This includes addressing challenges in areas like digital platforms, big data, and AI. We also need to invest in building institutional knowledge and expertise and updating analytical tools and methodologies for effective enforcement. ALB: How do you assess the current state of competition in India, and are there particular sectors or industries that the CCI is closely monitoring? Can you comment on any trends or issues related to market competition that you believe need urgent attention or intervention? Kaur: Assessing the current state of competition in India requires a nuanced understanding of both the broader economic landscape and specific market dynamics. Overall, we observe a healthy and growing competitive environment in India, driven by technological innovation. Presently, we will be focusing on newage markets to understand their dynamics and potential anti-competitive concerns. ALB: In the context of emerging technologies and digital markets, how does the CCI plan to adapt its antitrust framework to address new challenges? Are there plans to engage with stakeholders, including tech companies, to ensure a balance between innovation and competition in the market? Kaur: Digital markets possess unique characteristics that render them susceptible to anti-competitive practices. Network effects, economies of scale, and the significance of data can result in the emergence of dominant players, who may exploit their market power to the detriment of competition and consumers. Against this backdrop, it is imperative to evaluate and, if necessary, recalibrate our approach to competition regulation in the digital economy. Drawing on the experiences and best practices of other jurisdictions is crucial, while also considering the distinctive characteristics of our own economy. Furthermore, the government has established a Committee on Digital Competition Law, signifying a significant step towards ensuring a level playing field in Q&A India’s top competition regulator, the Competition Commission of India, has been leading the charge to modernise the country’s laws to bring them in line with India’s ever-evolving digital business environment. In 2023 alone, the CCI has released draft regulations that revamp the regulator’s approach to merger control, settlement agreements and cartel leniency. At the helm of these changes has been the CCI’s new chairperson, Ravneet Kaur, who took up the top antitrust role in May 2023. Kaur discusses her priorities and ambitions for the CCI, regulation of India’s digital markets, the institution’s new approach to competition regulation and advocacy, as well as lessons learnt and adopted from international antitrust governance bodies across the globe. BY NIMITT DIXIT Ravneet Kaur
13 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM the digital market. This acknowledges the necessity for a specialised approach to addressing the unique challenges posed by digital markets. The Committee has conducted extensive consultations with stakeholders. ALB: There are new regulations coming on merger control, commitment and settlements and cartel leniency. Could you share your expectations from these new rules? Kaur: Regulations on commitment and settlement processes, as well as leniency plus regimes introduced through the Competition Amendment Act 2023, will provide a significant impetus to the ease of doing business by reducing litigation through self-reporting and selfcorrection by enterprises. The Competition Amendment Act 2023 has also introduced the Green Channel route in the statute for the automatic approval of certain categories of mergers and acquisitions. This will expedite the approval process for transactions that are unlikely to harm competition in India. ALB: Are there any lessons or best practices from international antitrust agencies that you believe could be applied to enhance the CCI’s effectiveness? Kaur: Engagement with international antitrust agencies plays a pivotal role in enhancing the effectiveness of these agencies. Such engagement allows for the exchange of best practices and insights. Antitrust issues, particularly in the context of globalisation and digital markets, often have cross-border implications. By interacting with international agencies, we can learn from their experiences, adopt effective strategies, and tailor them to fit our domestic market conditions. Secondly, such engagement facilitates cooperation in cross-border investigations and enforcement. In today’s interconnected world, many anti-competitive practices have international dimensions. Collaborating with other antitrust agencies helps in coordinating investigations involving multinational companies or global markets, thereby making enforcement actions more effective. Also, international engagement aids in capacity building. Through workshops, seminars, and training programs conducted in collaboration with international bodies, our staff can stay abreast of the latest developments and techniques in competition law enforcement. This is vital in dealing with complex issues, especially those arising in dynamic sectors like technology and e-commerce. International engagement reinforces the CCI’s credibility and aligns its practices with global standards. This alignment is crucial for attracting foreign investment and promoting a business-friendly environment in India, as it assures investors of fair and consistent competition enforcement. We have recently organised the eighth BRICS International Competition Conference. By bringing together representatives and experts from Brazil, Russia, India, China, and South Africa, the conference served as a pivotal platform for discussing critical issues related to antitrust enforcement in emerging economies. The event provided an opportunity for the CCI to share its best practices and learn from the experiences of its counterparts, thereby enhancing its capabilities and strategies in promoting fair competition. Deals $1 BLN Sale of Aster DM Healthcare’s GCC business Deal Type: M&A Firms: Allen & Overy; AZB & Partners; Baker McKenzie; Cyril Amarchand Mangaldas Jurisdictions: India, UAE $530 MLN AU Small Finance Bank’s acquisition of Fincare Small Finance Bank Deal Type: M&A Firms: Anagram Partners; AZB & Partners Jurisdiction: India $488 MLN Zurich Insurance’s acquisition of Kotak Mahindra General Insurance Company Deal Type: M&A Firms: AZB & Partners; Cyril Amarchand Mangaldas; Freshfields Bruckhaus Deringer Jurisdictions: India, Switzerland $366 MLN Tata Technologies’ IPO Deal Type: IPO Firms: Cravath, Swaine & Moore; Cyril Amarchand Mangaldas; Latham & Watkins; S&R Associates Jurisdiction: India $230 MLN Cello World’s IPO Deal Type: IPO Firms: J. Sagar Associates; Sidley Austin Jurisdiction: India $204 MLN Honasa Consumer’s IPO Deal Type: IPO Firms: Cyril Amarchand Mangaldas; IndusLaw; Sidley Austin Jurisdiction: India REUTERS/Adnan Abidi
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