Bingqing Wang Rankings Editor firstname.lastname@example.org Rowena Muniz Copy & Web Editor email@example.com John Agra Senior Designer firstname.lastname@example.org Rozidah Jambari Traffic / Circulation Manager email@example.com Krupa Dalal Sales Manager firstname.lastname@example.org (91) 87 7967 7503 Ranajit Dam Managing Editor email@example.com Amantha Chia Head of Legal Media Business, Asia & Emerging Markets firstname.lastname@example.org MAY JUN 2023 In this issue, we put the spotlight on India’s thriving tech industry. The issue includes our annual list of India’s Top TMT Lawyers, recognizing their significant contributions to this dynamic field. These legal professionals offer invaluable expertise in areas such as intellectual property, data privacy, and regulatory compliance, assisting tech companies in navigating complex legal challenges. Additionally, we have convened a roundtable of leaders from top Indian law firms specializing in tech company advisory. This insightful discussion explores key legal trends, opportunities, and challenges shaping India’s technology sector. By recognizing exemplary TMT lawyers and facilitating knowledge-sharing among legal leaders, we hope to contribute to the growth of a robust legal ecosystem supporting India’s tech industry. These, in addition to a forum on cybersecurity services delivered by law firms, shed light on the vital role played by lawyers in enabling innovation, protecting rights, and ensuring compliance in India’s rapidly evolving digital landscape. – RANAJIT DAM SPOTLIGHT ON TECHNOLOGY
2 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MAY-JUNE 2023 ALB: How is the significant growth of India’s technology industry driving the need for legal support provided by firms like yours? Pravin Anand, managing partner, and Vaishali Mittal, partner, Anand & Anand: Law and technology are inseparable, and today, is considered as one of the most important disciplines. Today, India Inc. is as much the story of legacy businesses, as it is the story of grassroot inventors, content creators on social media, start-ups turning unicorns, and the entire nation going cashless, and relying solely on digital payments. With India’s narrative being largely digital, an overwhelming majority of the issues that will arise, both for monetization as well as protecting one’s creations, will relate to intellectual property. IP firms like ours will play a pivotal role in giving shape to the way technology catalyses social and economic change. IP will not be restricted to government offices or courts, but will be the dominant factor in valuation meetings, pitches to incubation centres, license negotiations etc. Hemant Singh, managing partner, and Mamta Jha, senior partner, Inttl Advocare: India has always been recognized as the tech hub of the world. However, recent entrepreneurial efforts coupled with an extremely conducive environment has propelled India to the global stage as a formidable tech powerhouse. Given the dynamism of the tech industry, legal support in this sector needs to be equally dynamic and solution-oriented. This has been the guiding philosophy for Inttl Advocare when assisting clients from and around the tech sector! Since its inception in 1991, the firm has seen the tech sector grow by leaps and bounds. From being a tertiary avenue for various industries, the digital ecosystem is now a primary and essential market. Surviving online is the key to thriving offline! It would not be remiss to state that the Technology Industry has permeated every other industrial sector. This cross-sectoral growth has also raised complex legal challenges pertaining to intellectual property, data privacy, cybersecurity, cross-jurisdictional challenges, and regulatory compliance aspects requiring specialized expertise which firms like ours are well-equipped to provide. At Inttl Advocare, our legal strategies and advice always take into account the practical realities of the digital world. We strive to provide innovative solutions to evolving challenges in the tech space, which are rooted in the conventional law, whilst being flexible Lawyers have played a pivotal role in the remarkable growth of India’s technology industry, which is now valued at an impressive $245 billion and employs some 5.4 million people. Leaders at some key law firms talk about how their expertise in areas like IP rights, contract law, and regulatory compliance is provided the necessary legal framework for innovation, investment, and business expansion, fostering an environment conducive to the sector’s success. BY ASIAN LEGAL BUSINESS TALKING TECH In the spotlight
3 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM to withstand the rapid technological changes. From metaverse, NFTs to Web 3.0, our firm combines expertise and experience to provide forward-facing solutions. Understanding the technology and keeping abreast with the policy deliberations are also important factors that allow us to carve out niche solutions for our tech clients. Arjun Sinha, founding partner, AP & Partners: The growth of India’s technology industry and its fast-paced regulatory environment have significantly increased the demand for legal support. As opposed to a traditional model of engagement, teams need to keep themselves updated of frequent changes and proactively inform their clients of the potential impact on their business. Moreover, as Indian businesses expand globally, we now need to be up to date with global legal developments and work with partners in multiple jurisdictions. Vidushpat Singhania, managing partner, Krida Legal: The growth of India’s technology industry is driving a compelling need for legal support. With the rapid advancement of technology and digital innovation, various sectors of the Indian economy, including e-gaming/ sports, e-commerce, fintech, artificial intelligence, and blockchain, have experienced remarkable transformations. This growth has given rise to complex legal challenges that necessitate specialized expertise. The rise in technology has necessitated changes being reflected in existing laws and rules in the country. The Department of Consumer Affairs and ASCI both have in 2022 issued various guidelines to be followed by celebrities and social media influencers to prevent misleading advertisements and to also prevent surrogate advertising. Any contravention with such guidelines would imply the risk of being slapped with stringent action on part of the authorities. Hence, it is necessary to ensure that any and all online advertisement campaigns run by our clients are in compliance with these guidelines. Similarly, MEITY recently introduced the amendments carried out to the IT (Intermediary Guidelines and Media Ethics Code) Rules 2021 to inter alia provide for the creation of Self-Regulatory Bodies (SRBs). These SRBs will be tasked with creating various frameworks for the verification and approval of permissible online games which can be offered to users for real money as a form of entertainment. The amended IT Rules 2021 also provide for establishment of mandatory posts by online intermediaries, including gaming companies, to ensure swift action by such entities in the event of occurrence of any cyber-security incidents. The changes in these laws have been brought to effectively counter advancements in technology. In such cases, it is always our effort to ensure that compliance requirements of our clients are met and that the client is not in breach. Lastly, the landscape pertaining to data security and the rules and regulations in relation thereof will undergo a massive change as and when the Digital India Bill and the Digital Personal Data Protection Bill are passed by Parliament. It is expected that both the legislations will effectively answers questions surrounding data-security in India. The compliance of technologies with the data-security standards to be established under these legislations will be key moving forward. ALB: Could you provide some examples of the specific legal challenges that these companies face? Anand and Mittal: Some of the specific legal challenges that technology industry is facing in India in the present day, include, first, online piracy and sale of counterfeit goods, especially on e-commerce websites, which claim safe-harbour, disclaim liability and require that with each instance of infringing content being uploaded on the platform, rights owners resort to the “notice-and-take-down” scheme. Recent legislative and policy initiates such as Intermediary Guidelines, 2021 (as amended in 2022) have helped make stricter norms around these. Second, misleading content posted on social media by influencers hired by established brands. With the power of influencers on the rise, the responsibility with which they endorse products or services, must increase. Recent guidelines floated by the Advertisement Standards Council of India (ASCI) and amendments to the Consumer Protection Act and underlying rules require all such advertisements to be taken down, unless clear disclaimers are given to the public that these are merely endorsements at the best of other brands. Third, online gaming. The casual gaming industry in India has seen a major boost with takers across the length and breadth of the country. Protecting the unique interface of their games, ensuring that key strategic inputs are protected adequately as trade secrets and that new games are developed in a clean manner without getting tangled in disputes surrounding IP owned by other companies are some of the major elements in the gaming space today. Singh and Jha: Rapid expansion and evolution of the sector has presented technology companies with complex legal challenges that require specialized support. At Inttl Advocare, we have had the privilege of assisting numerous technology companies in navigating these challenges effectively. Speaking from our experience, one of the significant legal challenges that companies face, is protection and enforcement of their intellectual property rights. As technology companies invest substantial Pravin Anand Vaishali Mittal Hemant Singh Mamta Jha Arjun Sinha Vidushpat Singhania
4 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MAY-JUNE 2023 resources in research and development, safeguarding their innovations becomes crucial. We have been advising companies in tackling issues related to patent infringement including standard essential patents, compulsory licensing, trademark and domain name disputes, copyright violations, and misappropriation of confidential information, and more. Online content regulation is an emerging legal challenge, specifically for companies acting as online intermediary platforms. The increasing internet traffic in India has resultantly increased issues related to free speech, misinformation, child safety, impersonation, violation of IP rights etc., thereby increasing the burden of compliance on such technology companies. We have regularly advised and assisted such platforms with respect to safe harbour provisions, adherence to rules on content regulation, and monitoring, detection, reporting and removal of third-party content. Another area where our expertise is often sought is data privacy and security. With the increasing reliance on data-driven technologies, companies must comply with stringent data protection laws and ensure the security of personal and sensitive information. We have assisted clients in addressing challenges related to data breaches, information security management systems, user consent, data localization requirements, cross-border data transfers, and compliance with Indian as well as global data protection standards such as the GDPR, HIPAA, FISMA etc. Regulatory compliance is another key concern for technology companies. The sector operates within a complex legal landscape, and ensuring compliance with sector-specific regulations, licensing requirements, consumer protection laws, e-commerce regulations, and antitrust regulations can be challenging. Further, antitrust issues have become one of the biggest hurdles for technology companies. We have advised companies on potential antitrust issues, abuse of dominant market position, merger control, and regulatory approvals for acquisitions, helping them navigate the complexities of competition law. Additionally, the growing threats of cyberattacks and data theft have heightened concerns over cybersecurity and data theft. As emerging technologies such as artificial intelligence, blockchain, web3, NFTs, virtual reality etc. gain traction, we have assisted clients in understanding and complying with the regulatory frameworks governing these technologies. Sinha: Technology companies doing business in India have to grapple with a rapidly changing regulatory environment. We have seen new rules for gaming and streaming companies; a developing regulatory framework for e-commerce and online advertisements; and stricter regulation of virtual assets. As a result, businesses need to constantly evaluate the impact of new and proposed changes on their business and take proactive measures to ensure business continuity. The digitisation of nearly all forms of businesses has increased the complexity of the operating environment for businesses. Clients along with their trusted advisors need to work in teams to analyze their business decisions from a diverse set of perspectives. The other area that we see focus on is an increasing element of preparing against enforcement actions or contentious situations. Singhania: With the advancement of technology and rise in internet connectivity, we have increasingly witnessed examples of civil and criminal complaints being filed by individuals in far-flung areas against celebrities and influencers for participating in various marketing campaigns whilst alleging violation of existing laws and regulations, including ASCI’s due diligence guidelines for celebrities and social media influencers. Consequently, the interests of such celebrities and influencers have to be defended in the respective jurisdictions where the complaints get filed, including at times through requesting for an online hearing, a facet of technology whose reach and acceptability has been robust. To reflect on the rise in technology, the Department of Consumer Affairs had recently issued guidelines to be followed by celebrities and various social media influencers to prevent misleading advertisements. These guidelines, interestingly, also provided for regulation of advertisements featuring virtual influencers, i.e., fictional characters or avatars possessing realistic characteristics, features and personalities of humans. Such guidelines must be adhered to by tech companies looking to advertise themselves while utilizing AI driven characters/ avatars. Another issue faced by gaming entities is the threat of third-party scams with proceeds being used on their respective platforms. In such cases, the criminal complaint filed results in the bank account of the gaming entities being frozen which can potentially cripple operations. Consequently, we often assist in making representations to the respective law enforcement agencies and coordinate with all concerned parties to ensure that the bank accounts become operational at the earliest. Another challenge that is now being faced by gaming entities, particularly those catching the eye of the law enforcement agencies, is the suspension of their respective internet domains. In such cases, the dispute resolution mechanism of NIXI is explored to arrive at possible resolution and resumption of operations of the suspended domains. With the rapid growth of the online gaming industry worldwide and particularly in India, the government has also sought to provide an impetus to the sector of e-sports. The government also came out with an AVGC policy in order to create a boost for the animation industry. However, there is still a lack of clarity in terms of how e-sports as a sector is sought to be promoted by the government. With the rise in number of OTT platforms, we have witnessed challenges being faced during contract negotiations on behalf of free streaming platforms/ channels to ensure that goals of revenue generation and profitability are met. ALB: Considering the projected growth and potential regulatory changes in the technology industry, what are your predictions for the legal landscape and the specific legal challenges that
5 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM technology companies may face in the near future? Anand and Mittal: Industry 4.0 is throwing up never before envisioned aspects and challenges. As this new branch of technology interfaces with pretty much every aspect of life, the challenges in future are going to be tricky to resolve. Some of the challenges that technology companies will face include, first, technology licensing. The future of SEP licensing will see cross-transfer of technology by both parties, and more objective methods of deciding royalty payments. Thus, the impetus on all organisations should be to develop their own IP to command a stronger negotiating position. Second, expanding definition of intermediaries and tightening safe harbour. Different jurisdictions are currently coming up with their own answers to the varying degrees of finding balance between in protecting the intermediary and aggregator business models (which are here to stay) and protecting free speech and related rights of individuals. Third, AI-related challenges. The list here is endless. From protecting one’s trade secrets from generative AI, to designing policies on the use of responsible AI and how to interact with generative AI; from addressing questions of authorship and inventor ship of AI - this field is expected to throw up the greatest amount of challenges. Fourth, data sharing, monetisation, and piracy. Data is the new gold rush. However, can one truly monetise it without cross-border reciprocal safeguards being in place? What security standards must one conform to , to ensure consistency of standards which will allow anonymised data to be used for further research, without comprising privacy and sensitive information of individuals, businesses and governments? Singh and Jha: At Inttl Advocare, we are attuned to the rapid growth and potential regulatory changes in the technology industry. We believe that with India’s growing realization for safeguarding its citizen’s personal data and the introduction of the Digital Personal Data Protection Bill 2022, technology companies will be facing stricter data privacy regulations. Technology companies will need to adhere to more stringent laws regarding the collection, storage, and use of personal data. Compliance will require robust data protection measures, explicit user consent mechanisms, and adherence to privacy-by-design principles. Similarly, cybersecurity regulations are likely to become more stringent in response to evolving cyber threats. Technology companies will face heightened scrutiny and regulatory requirements to safeguard sensitive information and protection against data breaches. Implementing comprehensive cybersecurity measures and establishing effective incident response plans will become critical. Further, as artificial intelligence (AI) continues to advance, we foresee the emergence of specific regulations addressing the ethical and legal implications of AI technologies. Companies utilizing AI will need to navigate issues related to bias, transparency, accountability, and potential liability arising from AI-driven decision-making. Compliance with these regulations will be crucial to maintain public trust and ensure responsible AI development and deployment. The increasing dominance of technology giants may invite intensified antitrust scrutiny and sanctions. Technology companies could face investigations into potential anti-competitive practices, leading to measures aimed at ensuring fair competition, such as divestitures and stricter regulations. Additionally, crossborder data transfers will continue to pose challenges. Technology companies operating across jurisdictions will need to navigate complex data protection regulations, including data localization requirements, adequacy determinations, and the negotiation of data transfer agreements. Sinha: The integration of AI technology across diverse industries presents an array of legal areas for analysis. We have seen some businesses develop internal rules to assess and adopt AI solutions. These rules vary from ethical concerns to legal risks arising out of such AI adoption - such as potential risk of intellectual property infringement, and liability implications arising from the utilization of automated tools in decision-making processes. It has been very interesting working with people on evaluating some of these. The other element is the changing nature of the legal environment, and preparing for these changes is the other significant risk for technology companies. We are witnessing greater discussion on anti-competitive effects of data-based companies from various corners (including Indian industry), need for regulation of consumer applications, calls for localisation of data. Preparing their businesses against these challenges is the other key risk that technology businesses need to prepare against in the near future. Singhania: The technology industry, particularly the online gaming industry, is currently anticipating future compliances to arise out of the various frameworks created by the SRBs under the provisions of the recently amended IT Rules 2021. The framework(s) are expected to follow stringent guidelines for the verification and approval of permissible online games which may be offered by gaming entities to users for real money as a form of entertainment. The legal challenge there will be to ensure that the games being provided by the gaming entities are compliant with all the legal requirements under the framework of the SRBs. As mentioned earlier, another anticipated change in the legal landscape will be the changes in existing data protection measures in due course of time. New legislations such as the Digital India Bill and the Digital Personal Data Protection Bill are expected to be passed by Parliament soon which will create another seismic shift in the legal field particularly, in respect of the tech industry. One of the key factors/ areas of concern for all is going to be data security; and the challenges that tech companies will face will range from appointment of essential, trained personnel to various mandatory posts to mitigate effects and ensure swift redressal in cyber-security incidents to ensuring storage of data in a secure manner that will not infringe on the privacy of individuals. The team at Krida Legal is working to continuously keep ourselves updated to ensure that we
6 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MAY-JUNE 2023 are in a position to provide sound advice to our clients in the face of such diverse challenges. ALB: How has your firm adapted its strategies and services to set itself apart from competitors when it comes to servicing domestic and international clients? Anand and Mittal: Anand and Anand has set up a new practice area, the Digital Group, which is dedicated to assisting our clients with issues thrown up by new and emerging technology. The focus of our Digital Group will be assisting in all aspects of law, i.e., litigation, compliance, and policy. Recently, we provided our inputs and feedback in guiding the preparatory phase of Responsible AI Guidelines for Generative AI, published by NASSCOM. Not just that, we have made some path-breaking tech overtures within the firm, that too without the involvement of any third party. We have created Patent Automation Module which auto-fills Patent Form I in under five minutes as against 45 minutes when filled manually. It even breaks captcha without human intervention. Another app sifts through bulky trademark journal in a matter of few minutes. Such like Apps end up generating more hours for lawyers at the firm to engage constructively with clients and continue to innovate. Singh and Jha: Our firm has adapted its strategies and services in several ways to deliver exceptional value and meet the unique needs of our clients. We strive to differentiate ourselves by providing specialization and expertise in intellectual property and technology law, media, and telecommunications. With over three decades of experience, our dedicated team of lawyers has developed a deep understanding of these areas, allowing us to provide comprehensive and specialized legal solutions tailored to meet our clients’ specific requirements. We place a strong emphasis on a client-centric approach, taking the time to understand our clients’ objectives and challenges. This enables us to develop customized legal strategies aligned with their business goals, ensuring personalized attention and effective solutions. As a firm representing clients from across the globe, we have gained valuable insights and a global perspective to effectively serve our international clients as well as domestic clients. We understand the complexities of crossborder transactions and international legal frameworks to the domestic legal framework, allowing us to provide seamless support to clients with global operations as well as domestic operations and address their unique legal needs. Furthermore, we embrace the use of advanced legal technology tools and platforms to enhance our services. By leveraging technology, we streamline processes, improve efficiency, and deliver cost-effective solutions to our clients. Our focus on staying up to date with legal technology allows us to provide innovative and forward-thinking legal services. We also believe in the importance of thought leadership and knowledge sharing. Our lawyers actively contribute to industry discussions, publish articles, and participate in conferences and seminars. By sharing our insights and expertise, we aim to position ourselves as trusted advisors and contribute to the collective knowledge of the legal community. Additionally, we have established collaborations with law firms and professionals globally, enabling us to provide comprehensive support to our clients with international operations or legal needs. These partnerships allow us to extend our reach and deliver seamless legal services worldwide. Ultimately, our commitment to excellence drives everything we do. We consistently strive to provide exceptional quality, conducting thorough research, paying attention to the minutest of details, and ensuring seamless communication. By upholding the highest standards of professionalism and ethics, we aim to build enduring relationships with our clients. Sinha: In today’s regulatory landscape, lawyers need to work collaboratively across teams to find innovative solutions in a wide range of sectors. The challenges faced by our clients – whether in deals or advisory matters can result from a wide range of areas such as data protection, competition law, to e-commerce and consumer protection regulation. As a firm, we tend to follow a taskforce-based approach to all our significant matters. This brings partner led attention from practitioners with diverse viewpoints – resulting in better outcomes in any situation. Additionally, we think the law firm remuneration model may undergo a change in the coming years. While standard pricing models such as hourly billing rates will continue, increasingly clients may be willing to take a value billing approach – where they pay for services based on the complexity of the problem and its criticality to the business. Singhania: As a firm, we have consciously chosen to focus solely on the sports, gaming, med-tech, and entertainment sectors as our key areas of operation. Having been part of the industry for the past decade, Krida Legal is routinely involved not only with various industry bodies but has also been involved closely in providing advisories to various state and central governments grappling with policy decisions, be it on the sports or the gaming side of things. On account of our unique mode of operation and the multitude of assignments handled and delivered to the satisfaction of our clients, Krida Legal has developed a unique insight in relation to the dynamics of the sports, gaming and entertainment sectors. Our regular interaction with major stakeholders in these sectors provides us with an edge over others in the sense that we always seek to understand the industry and the commercial requirements of our clientele before we provide legal solutions to them. We possess an innate understanding of the best international practices in each sector of our operations which has been instrumental in the execution of our strategies effectively in order to service our clientele’s requirements. Lastly, proactive risk management is a key element of our service offering. We understand that clients not only require legal solutions but also seek proactive strategies to mitigate potential risks. We go beyond reactive legal advice by offering proactive risk assessment and mitigation services.
7 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM RANJANA ADHIKARI IndusLaw SHILPA MANKAR AHLUWALIA Shardul Amarchand Mangaldas PRAVIN ANAND Anand and Anand SAHIL ARORA Saraf and Partners PRATEEK BAGARIA Singularity Legal ANKUSH BEDI InventIP Legal Services LLP GAURAV BHALLA Ahlawat & Associates JIVESH CHANDRAYAN HSA Advocates DR ABHIMANYU CHOPRA AZB & Partners ARUNABH CHOUDHARY LawKnit Partners AVISHA GUPTA Luthra and Luthra Law Offices AKIL HIRANI Majmudar & Partners MAMTA JHA Inttl Advocare DEEPAK JOYCE JoyceLaw AARON KAMATH Nishith Desai Associates PRASHANT KATARIA King Stubb & Kasiva SUNITI KAUR Alaya Legal ARJUN KHURANA G&W Legal KRITIKA KRISHNAMURTHY AK & Partners SACHIN MEHTA TT&A VINEETHA MG Samvad Partners CHANDRIMA MITRA DSK Legal VAISHALI MITTAL Anand and Anand KAUSHIK MOITRA Bharucha & Partners TANVI MURALEEDHARAN LawKnit Partners AMEET NAIK Naik & Naik NIVEDITA NIVARGI Samvad Partners ANUROOP OMKAR AK & Partners SHYAM PANDYA Stratage Law Partners Advocates & Solicitors PRASHANT PHILLIPS Lakshmikumaran & Sridharan ROMA PRIYA Burgeon Law PRASHANTH RAMDAS Khaitan & Co GAUTAM SAHA TT&A VIDUSHPAT SINGHANIA Krida Legal ARJUN SINHA AP & Partners JITENDRA SONI Argus Partners DHRUV SURI PSA Legal Counsellors KUNAL TANDON Tandon & Co. HARSH WALIA Khaitan & Co NAMITA VISWANATH IndusLaw For the methodology, please visit www.legalbusinessonline.com In its third annual list, ALB showcases India’s top TMT/Fintech lawyers. These exceptional legal professionals have earned their place through outstanding work, commendations from clients, and recognition within the market. They have played a pivotal role in facilitating innovation, protecting intellectual property rights, ensuring regulatory compliance, and fostering the growth of this vibrant sector. BY ASIAN LEGAL BUSINESS ALB INDIA TOP TMT/FINTECH LAWYERS 2023 Ranking
8 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MAY-JUNE 2023 Waseem I. Pangarkar, senior partner, MZM Legal As for cybersecurity, we have advised our clients when instances of cyberattack have been reported. Some of the steps for mitigating cyberattack are: immediate termination of the Internet connection, including Wi-Fi and disabling all core network connections with the device; software upgrade on an automatic basis, including antivirus; reset credentials, including passwords; immediately report to the cyber cell or concerned investigating agency to avoid any legal complications or liability; implementation of robust incident management plan; and clear the infected devices and reinstall the affected files or software and keep a check on the infection by using various available tools. We need to learn and implement such measures to make this kind of advice effective. For that purpose, we educate employees about cybersecurity best practices, such as recognising phishing emails, malware and ransomware attacks, and using strong passwords. In addition, we implement multi-factor authentication (MFA), firewalls, intrusion detection and prevention systems, and secure configurations for all network devices and systems, among other measures. Also, manuals and risk management plans are important. So, we deploy security monitoring tools to detect and respond to potential threats in real-time and develop an incident response plan. Ifrazunnisa Khan, legal manager, Tatva Legal We assist our clients with preparation of incident response plans and breach notification policies. We also help clients understand their compliances regarding security standards mandated under local laws and insurance portfolios, and mitigate their commercial risks under contractual agreements with vendors, employees, and other stakeholders in case of such events and regularly meet with our clients and their stakeholders to update them of any cyber security legal developments and increased compliances. In case of a cyberattack, we often work with clients to respond to ransomware threats, issue breach notifications to regulatory and insurance authorities, prepare corporate communications to investors, media, and other stakeholders, analyse other applicable legal requirements, and undertake other remedial actions. We assist clients with updating their cyber policies and response procedures because of such incidents. We also advise and represent our clients in potential or consequent claims, litigation, and dispute resolution. Vijayant Singh, principal associate, Ikigai Law As a comprehensive cybersecurity practice, we leverage our understanding of the law, awareness of industry best practices, and relationships with government/regulators to develop tailored cyber incident management strategies that help mitigate client exposure. These strategies should both be reactive and proactive – to answer the spectrum of legal questions that arise while managing an incident, including what the client’s sensitive and critical IT assets are; what incidents must be reported to regulators; what information must be shared with third parties; what organisational measures are required; and what are the protocols to investigate, contain, and report the incident, among others. A clear incident response framework that answers such questions – while balancing the regulators’ expectations with clients’ commercial realities – can help avoid challenges which might otherwise enhance risk. Forum SAFE AND SOUND Cybersecurity has emerged as a critical concern in today’s interconnected world due to the escalating frequency, sophistication, and impact of cyberattacks. As a result, the need for lawyers in preventing and mitigating cyberattacks is more crucial than ever. BY MARI IWATA As cybersecurity attacks intensify, how are you assisting clients in trying to prevent cyberattacks, as well as mitigate the damage once it happens?
9 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM Deals $1.4 BLN Brookfield Asset Management’s sale of properties Brookfield India and GIC Deal Type: M&A Firms: Khaitan & Co; Shardul Amarchand Mangaldas & Co; Trilegal Jurisdictions: India, Singapore $1.1 BLN BPEA EQT and ChrysCapital’s purchase of HDFC Credila Deal Type: M&A Firms: AZB & Partners; J Sagar Associates; Shardul Amarchand Mangaldas & Co; Wadia Ghandy & Co Jurisdictions: Hong Kong, India $570 MLN Blackstone’s acquisition of International Gemological Institute Deal Type: M&A Firms: Cyril Amarchand Mangaldas; Freshfields Bruckhaus Deringer; Simpson Thacher & Bartlett Jurisdictions: China, France, India, U.S. $526 MLN Mankind Pharma’s IPO Deal Type: IPO Firms: AZB & Partners; Cyril Amarchand Mangaldas; Shardul Amarchand Mangaldas & Co; Sidley Austin Jurisdiction: India $342 MLN JSW Infrastructure’s planned IPO Deal Type: IPO Firms: Khaitan & Co; Trilegal Jurisdiction: India Explainer HOW WILL THE GO FIRST SAGA IMPACT INDIA’S AVIATION SECTOR? BY ALFRED ROMANN AND MARI IWATA The reputation of India’s aviation industry took a hit after the grounding of India’s Go First airline, the bankruptcy procedures that followed and a decision by regulators that blocked aircraft lessors from getting their planes back. Go First grounded its planes on May 3 and was granted bankruptcy protection on May 10. The airline said in various announcements that flights would resume on June 25. India’s Directorate General of Civil Aviation (DGCA), the aviation watchdog, put requests to repossess aircraft on hold while the airline goes through the bankruptcy process. In court filings, the DGCA said the freezing of the assets takes priority over repossession requests. How did India’s aviation regulators stop the repossession of Go First’s aircraft? A decision by the National Company Law Appellate Tribunal (NCLAT) to uphold the earlier move by the National Company Law Tribunal (NCLT) admitting Go First into insolvency resolution “and not allowing the lessors to repossess the aircraft has disregarded the Cape Town Convention 2001,” says Abhishek Sharma, a partner at Dentons Link Legal. Under the convention, airplane lessors are entitled to de-register and export their planes out of India in the event of a default. But, Section 14 of the Insolvency and Bankruptcy Code, 2016, prohibits the recovery of property “where such property is occupied by or in possession of the corporate debtor,” Sharma says. However, the NCLAT did open the door for lessors to approach the NCLT to consider the specific issue. What are the implications for airplane lessors? Lessors have “expressed concern” that they cannot get their planes back. All planes Go First has leased are frozen, and lessors cannot recover them. The lessors may file a claim for outstanding payments due and dues incurred during the “corporate insolvency resolution process, will become part of the corporate insolvency resolution process cost, which shall be paid in priority over other dues,” says Sharma. “While the issue with respect to repossession of aircraft is pending before the NCLT, it will be challenging for the lessors to reclaim possession of the aircraft,” he adds. After the bankruptcy proceedings started, “a group of lessors, namely a global aviation leasing watchdog, has put India on a watchlist with the remark that Go First failed to comply with international craft repossession norms,” Sharma notes. The lessors have now identified India’s “aviation market as a risky market.” What are the immediate issues for lessors to consider? Go First’s unexpected failure was shocking. Legal norms and regulations now pit aviation industry norms against India’s bankruptcy rules. The good news is that the government is considering a Cape Town Convention bill to protect foreign aircraft lessors, but that could take time. For now, lessors have approached the NCLT as part of an effort to repossess their aircraft. Practically, there are concerns about the safety of both aircraft and their engines, which are unprotected. For the time being, Go First remains in possession of the planes, and it will be hard for lessors to recover them. “Going forward, we would advise lessors to tighten the noose around terms and provision of their existing sale and lease back arrangements in order to ring-fence any issues pertaining to reclaiming the possession of aircraft,” Sharma says.
10 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE MAY-JUNE 2023 Law Firm Hires ROHIT GARG LEAVING DMD Advocates JOINING Shardul Amarchand Mangaldas & Co PRACTICE Tax LOCATION Delhi POSITION Partner SUADAT AHMAD KIRMANI LEAVING Tatva Legal JOINING IndusLaw PRACTICE Disputes LOCATION Bengaluru POSITION Partner GAUHAR MIRZA LEAVING Shardul Amarchand Mangaldas & Co JOINING Cyril Amarchand Mangaldas PRACTICE Corporate/M&A LOCATION Delhi POSITION Partner JEETA NAYAK LEAVING Samvad Partners JOINING Cyril Amarchand Mangaldas PRACTICE Corporate/M&A LOCATION Mumbai POSITION Partner SARAH JAYNE RUFUS LEAVING IndiGo JOINING AZB & Partners PRACTICE Aviation LOCATION Mumbai POSITION Partner (Reuters) India’s markets regulator is unlikely to give special exemption to mutual funds if they breach the norms for maximum permitted holdings in security after the merger of HDFC Bank and HDFC, two sources with direct knowledge of the matter told Reuters. HDFC Bank and HDFC - both heavily owned by mutual funds - are set to conclude a merger soon to create India’s second-largest financial institution by assets after the State Bank of India. However, pressure on mutual funds to reduce their holdings or any limitations on increases could be an overhang on the stock of the merged entity. Per the rules of the Securities and Exchange Board of India (SEBI), a mutual fund scheme cannot invest more than 10 percent in a single security. However, exchange-traded funds and funds that invest in particular sectors are exempt. SEBI could consider this overshoot as a “passive breach,” implying no deliberate attempt to flout rules, one of the sources said. In such cases, the funds have 30 days to rebalance their portfolio, which can be extended by another 60 days, failing which the mutual funds may face regulatory action, the source added. Regulatory intervention is warranted if there is a wider impact on the market, which is not the case here, said the second source. The matter has been referred to the Association of Mutual Funds in India (AMFI), according to two mutual fund executives. Recently, AMFI officials and industry executives analysed the impact of the merger and how much of the stock the industry would need to sell to adhere to regulatory limits, the executives said. “Considering the regulatory requirement, there will be some mutual funds that would need to sell, which will create short-term pressure on the stock. However, with the prices reducing, it will create more opportunities for retail and other domestic investors to buy,” said Deven Choksey, founder of KRChoksey Holdings, a brokerage firm. Funds may have to offload 30 billion rupees ($364.9 million) to 40 billion rupees of the combined company’s stock, said an executive with a large fund house. “HDFC Bank and HDFC are fairly liquid stocks and have a lot of demand. This will hold true for the combined entity, too,” the executive said, adding that funds that need to sell will find buyers. This clause could curtail the ability of fund managers to take incremental exposure to the banking bellwether, the chief executive of another large-sized mutual fund pointed out. “Selling to meet the regulatory requirements could be seen by some in the market as a desperate act, and the fund managers would not get good buyers at the right price,” the person said. “This will impact the fund’s performance.” News MUTUAL FUNDS MAY NOT GET HOLDINGS WAIVER POST HDFC BANK-HDFC MERGER
11 ASIAN LEGAL BUSINESS – INDIA E-MAGAZINE WWW.LEGALBUSINESSONLINE.COM Technology is a great equaliser. Legal technology is no exception and enables law firms of different sizes and specialisations to handle client relationships, legal research effectively, keep track of cases, better accounting, contract drafting etc. In the recent past legal tech solutions have been backed by artificial intelligence, blockchain, IoT (internet of things), cloud services etc., to offer legal services promptly and efficiently tackle regulatory compliances. Against that backdrop, the following are key legal technology tools indispensable for any law firm. Case management solutions (or legal practice management solutions): Legal practice is a quotient of hardware and software infrastructure. Software solutions, such as case management solutions, supported by a workable blend of supporting hardware, are integral to sustaining a comprehensive digitisation transformation. Case Management Solutions platforms focus on supporting the legal department through better documentation, expense management, availability of information & team collaborations and render the necessities to achieve better staffing, budgeting, strategy, monitoring & evaluation. Further, such software assists law firms in managing clientrelated documents, files, and information by storing them in a single place and, for instance, making them accessible for clients and their attorneys in a law firm setup. Document processing solutions (for collaborative work): While legal professionals have become more specialised with time, practices have become more intermingled. Accordingly, teams and departments work on different projects in real-time, requiring lawyers to work together on projects and documents. Thus, collaborative word processing tools let users share access with others so that collaborations can be viewed, suggested, edited, and executed in real-time. Document assembly software such as Microsoft’s Quickparts has convenient user interfaces for business purposes. Communication system solutions: Streamlined communication system solutions are primary to having efficient and effective communication systems in place. Voice over Internet Protocol (VoIP) solutions such as Slack allow organisations to place calls, store messages and do conference calls. These are effective intra-firm communication systems instruments that prioritise urgent and non-urgent information. Client relationship management (CRM) solutions: CRM solutions allow professionals in general and law firms to track their business development needs by making it easy to onboard and manage clients, organise contacts and track and simplify the scheduling of meetings and appointments. Such solutions are cost-effective and cut down on the time required. Time and billing solutions: Accounting and billing solutions are central to tracking time, creating invoices and reconciling account statements since activitybased payments in legal matters lack a central time. Drafting solutions: While lawyers are valued for their writing skills, AI-based drafting software has helped streamline the process. Tools available in the market come with proofreading, citation validation, and a feature to customise and update authority tables. While technology has provided and is bettering such solutions and creating new solutions to address the legal-tech revolution, it has also created certain challenges: Security: The dawn of technology and overarching data privacy legislation has created barriers by inviting threats to the privacy and security of data, most of which, within the legal industry, is confidential. Therefore, any legal organisation needs to keep up-to-date security policies that help cushion such issues, especially when practices gravitate towards remote environments. Accountability: Technology-driven systems, for instance, AI-based systems, can synthesise large chunks of data, allowing greater personalisation. However, questions of accountability arise, for example, regarding data usage and the extent thereto in arriving at a certain output. Considering the above, while there is a growing need to re-assess needs and develop solutions, preferably technologydriven solutions, there is also a need to determine corresponding challenges. Further, numerous tools and technologies are available in the market catering to law firms and legal services functions like Thomson Reuters’ legal software and services. However, one size doesn’t fit all. Therefore, a detailed analysis of the positioning of the firm, urgent and long-term requirements, comparative analysis of one legal tool/technology with another, licensing terms, privacy and security aspects, cost analysis, userfriendliness, etc., would help select the right tools and technologies. In-house Insight 6 MUST-HAVE LEGAL TECHNOLOGIES ALB is soliciting articles from in-house counsel based in India for its bi-monthly e-magazine. For submission guidelines, email email@example.com. BY ANAND RAUT AND ARVIND PARDESHI About the authors Anand Raut is an assistant professor of law and the head of the post-graduate department at Maharashtra National Law University Mumbai. Arvind Pardeshi is the deputy general manager at Reliance Jio Infocomm Limited. The views expressed are personal.
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