THE GREAT LEGAL MINDS SHOW | HIROO ADVANI
We are excited to share the super interesting conversation between Hiroo Advani, Founder & Chairman, Advani Law and @Aman Abbas, Founder, LawWiser.
Lawwiser - India's First Legal videos only knowlege Platform
A
An acquisition occurs when one firm buys the majority of all the shares of another company to take control of that company. Buying more than half of a target company’s shares and other assets gives the acquirer the authority to make decisions concerning the newly acquired assets without the permission of the other shareholders. Acquisitions, which are quite prevalent in business, can take place with or without the target company’s agreement. During the approval procedure, there is frequently a no-shop provision.
Friendly acquisitions occur when the target company accepts to be purchased and the transaction is approved by the target company’s board of directors. Acquisitions that are friendly to both the acquiring and target firms are common. Both firms devise procedures to guarantee that the purchasing company buys the right assets, and they examine the financial statements and other values for any potential liabilities.
Both firms devise procedures to guarantee that the purchasing company buys the right assets, and they examine the financial statements and other values for any potential liabilities. The acquisition will begin once both parties have agreed to the terms and have met any legal requirements.
Arbitration is the procedure wherein a dispute is submitted as per an agreement between the parties involved to one or more arbitrators. Such arbitrator/s makes a binding decision on the dispute submitted. The intention of choosing arbitration is to opt for a separate dispute resolution procedure instead of going to the court. Arbitration is most common in commercial disputes. International commercial transaction disputes and credit obligation disputes are usually resolved through arbitration. Labour, family, and consumer disputes are also frequently handled through arbitration. Certain disputes that arise between states or investors are best resolved with arbitration.
Arbitration is like a small-scale trial. This can take place before the trial for a lawsuit with the hopes that a resolution will be reached before the trial and therefore negate the need for a full-scale trial.
These third-party deciders can assist save the courts from becoming overburdened with trials that don’t require a full court trial. When an arbitration clause is included in a contract, the decision might be seen as a legal judgement by filing a court petition. If one of the parties is unhappy with the verdict, they might appeal it on grounds of severe unfairness, fraud, or conspiracy. Some states require matters to be arbitrated by a third party. Primarily, it is governed by the Arbitration and Conciliation Act, 1996, however for arbitrations commenced after 23 October 2015, the Arbitration Act as amended in 2015 will apply. There have been further amendments in the years 2019 and 2021. The Arbitration and Conciliation Act, 1996 had replaced the erstwhile Arbitration and Conciliation Act, 1940.
B
Bail is a legal procedure in which a judge or magistrate releases someone who has been arrested or imprisoned in exchange for security to ensure that the person is returned to court for subsequent proceedings. The Code of Criminal Procedure, 1973 or CrPC governs the law on bail.
In criminal situations, the objective of bail awaiting trial is to prevent punishing an innocent person (who may be convicted at trial) and to allow him to prepare his defence without hindrance. Although some magistrates consider additional criteria such as the weight of the evidence, the character of the accused, and the accused’s capacity to post bail, the amount of bail is normally established by the seriousness of the felony charged and the possibility of escape.
Bail is most used in modern legal systems to ensure the freedom of someone arrested and charged with a criminal offence before trial, however, it can also be used to secure release until an appeal of a conviction in specific situations. Its usage in civil proceedings has declined in tandem with the fall of debt incarceration, subject to jurisdictional differences. Under Indian law, bail is of three types,
– Regular bail (in case of anticipatory bail is cancelled or the accused is arrested during the trial or before the trial commences, a regular bail is applied),
– Interim bail (granted for a short duration before regular or anticipatory bail) and
– Anticipatory bail (pre-arrest bail, under section 438, CrPC).
A blockchain (or distributed ledger) is a peer-to-peer distributed and public (or private/ permissioned) immutable ledger that maintains a record of all transactions occurring on the ledger. Such records are saved in a chain of units called blocks. In most blockchains, each new block contains cryptographically hashed data and is built upon the previous block in the chain, enabling the data in the blockchain to be trustworthy.
Digital signatures (e.g., in the form of the private key of a public key/private key pair) are commonly used to enable the identification of a participant in the transaction. In a proof-of-work model, the computing power needed to support the distributed ledger is generally provided by the users/miners, who are often paid small amounts of the applicable cryptocurrency for their efforts.
The decentralisation of data transportation and administration, as well as digital representations of assets or other value, is enabled by blockchain technology. More specifically, blockchain technology enables the authentication and settlement of transactions without the use of centralised intermediaries or authorities due to the distributed nature of a blockchain and its ability to enable trustable transactions between computers through its distributed consensus mechanism.
C
The act of following through on a rule, order, or request. Compliance is defined as “the state of being too eager to do what other people ask you to do” in a formal sense but a disapproving manner.
The word compliance in law, according to the Cambridge Dictionary, relates to following a certain law, regulation, or acting in line with an agreement.
Understanding the notion of non-compliance is a straightforward method to grasp the meaning of compliance. Non-compliance is the failure to follow any rules or standards that have been established, often as a result of explicit breaches of these laws or norms. Noncompliance can also be the result of failing to achieve a certain threshold or failing to adapt processes to suit current standards. Not all instances of non-compliance are considered legal infractions.
A search for “compliance law definition” on the internet may reveal what occurs if someone fails to comply with a court order, such as a child support order or a subpoena. If a person disobeys a court order, it is deemed a contempt of court, which can result in penalties, suspension of his professional license, and, in certain situations, jail time.
When a corporation loses money, the share price lowers, which can result in shareholders losing money or seeing their portfolios suffer losses. A majority shareholder is a single shareholder who owns and controls more than 50% of a company’s outstanding shares. Minority shareholders, on the other hand, are individuals who own less than 50% of a corporation’s equity. As residual claimants on a company’s earnings, shareholders are susceptible to capital gains (or losses) and/or dividend payments. The rights of shareholders including the protection of minority shareholders are governed under the Companies Act, 2013.
Contract in the simplest definition is a promise enforceable by law. The promise may be to do something or to refrain from doing something. It is governed by the Indian Contract Act, 1872. The making of a contract requires the mutual consent of two or more persons, one of them ordinarily making an offer and another accepting. If one of the parties fails to keep the promise, the other is entitled to legal redress. An agreement becomes a contract, only when, it gives rise to a legal obligation. For any agreement to be termed as a contract enforceable before the law, it must not be vague or uncertain. Certain contracts are restrained by law and cannot be entered.
The law of contracts evaluates whether a contract exists, what it means if it has been violated, and how much compensation the damaged party is entitled to.
When the worth of a promise does not appear to change over time, conceptions of property and harm are sufficient, and there will be no enforcement of an agreement if neither side has complied because no wrong has been done in property terms. In a market economy, on the other hand, a person may seek a promise today to protect against a future change in value; the person who obtains such a commitment feels injured if it is not kept. All the legally enforced agreements are usually written and registered.
What is Copyright?
Copyright is a form of intellectual property. Intellectual property includes copyright, trademark, patent, design and geographical indications. It is governed by the Copyright Act, 1957. Copyright is a form of protection granted under the section 13 of the Copyright Act, 1957, to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine-readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings. Further, it safeguards an original work from getting duplicated.
One needs to know that only phrases are protected by copyright, not ideas, techniques, methods of operation, or mathematical concepts. It means that Copyright law protects expressions of ideas rather than the ideas themselves.
To sum up, in simple words, it is a bundle of exclusive rights vested in the owner of the copyright granted by Section 14 of the Copyright Act. These rights can be exercised only by the owner of the copyright or by any other person who is duly licensed in this regard by the owner of the copyright.
So which rights are guaranteed under the Copyright Act?
These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to the public etc. It also covers online works in the digital world.
Also, note that the Copyright Act protects two types of rights, which are:
a. Economic Rights
b. Moral Rights
The Act also entitles the author or the owner of the copyright to approach the court in case of infringement of copyright. Over the years, the law on copyright has developed and has a rich jurisprudence to support and protect the copyright owners.
A cryptocurrency is a digital or virtual currency that is secured by cryptography, which makes it nearly impossible to counterfeit or double-spend. Many cryptocurrencies are decentralized networks based on Blockchain technology—a distributed ledger enforced by a disparate network of computers. A defining feature of cryptocurrencies is that they are generally not issued by any central authority, rendering them theoretically immune to government interference or manipulation.
A cryptocurrency is a form of digital asset based on a network that is distributed across many computers. This decentralized structure allows them to exist outside the control of governments and central authorities.
Cryptocurrencies are distinguished by the fact that they are not issued by any central authority, making them potentially resistant to government intervention or manipulation.
Many industries, including banking and law, are expected to be disrupted by blockchain and associated technology, according to experts.
Cryptocurrencies have several advantages, including cheaper and quicker money transactions and decentralized systems that do not have a single point of failure.
Price volatility, significant energy consumption for mining operations, and usage in criminal activities are all downsides of cryptocurrencies.
Cryptocurrencies promise to make it easier to move payments between two parties without the use of a trusted third party such as a bank or credit card provider. At present, there is still debate on the legality of cryptocurrency in India.
The technique of securing key systems and sensitive data against digital threats is known as cybersecurity. Cybersecurity measures, also known as information technology (IT) security, are meant to prevent threats to networked systems and applications, whether they come from within or outside of a company.
The complexity of security systems, which is exacerbated by diverse technology and a lack of in-house knowledge, may drive up prices. However, firms that implement a comprehensive cybersecurity plan based on best practices and automated using sophisticated analytics, artificial intelligence (AI), and machine learning may more successfully combat cyberthreats and limit the lifetime and impact of breaches when they occur.
Cyber assaults that seek to access, modify, or delete data; extort money from customers or the company, or disrupt routine business activities are all examples of cybercrime. A comprehensive cybersecurity plan contains layers of protection to guard against cybercrime.
D
Data protection and data privacy are often used interchangeably, but there is an important difference between the two. Data privacy defines who has access to data, while data protection provides tools and policies to restrict access to the data. Compliance regulations help ensure that users’ privacy requests are carried out by companies, and companies are responsible to take measures to protect private user data.
Data protection and privacy are typically applied to personal health information (PHI) and personally identifiable information (PII). It plays a vital role in business operations, development, and finances.
By protecting data, companies can prevent data breaches and damage to reputation, and can better meet regulatory requirements.
Data loss prevention (DLP), storage with built-in data protection, firewalls, encryption, and endpoint protection are all used in data protection systems.
Certain data types are collected, communicated, and utilised by data protection legislation. Names, photographs, email addresses, bank account information, IP addresses of personal computers, and biometric data are all examples of personal data.
The laws governing data protection and privacy differ between nations, states, and businesses. China, for example, has enacted a data privacy law that became effective on June 1, 2017. India is yet to finalise the data protection law, which will is Personal Data Protection Bill, 2021.
E
The phrase ‘Electronic Evidence’ refers to a piece of evidence produced by mechanical or electronic processes that are frequently useful in demonstrating or disproving a truth or fact in question, as well as the information that is presented to the court as evidence. Digital evidence is another name for electronic evidence. The forensics specialists or the Examiner of Electronic Evidence can retrieve data stored in electronic devices or systems, which may then be deemed acceptable in court proceedings following their inspection.
Because electronic records are more prone to manipulation, transposition, tampering, excision, and other forms of tampering, it is possible that if the entire procedure is dependent on electronic evidence, there will be a distortion of justice.
The main issue for courts dealing with electronic evidence is ensuring its validity, truthfulness, sincerity, and dependability for it to be admitted in court. However, since the Information Technology Act of 2000 has granted legal legitimacy to electronic or digital evidence, as well as later revisions to the Indian Evidence Act of 1872, the use of electronic evidence has advanced significantly.
The complexity of security systems, which is exacerbated by diverse technology and a lack of in-house knowledge, may drive up prices. However, firms that implement a comprehensive cybersecurity plan based on best practices and automated using sophisticated analytics, artificial intelligence (AI), and machine learning may more successfully combat cyberthreats and limit the lifetime and impact of breaches when they occur.
Cyber assaults that seek to access, modify, or delete data; extort money from customers or the company, or disrupt routine business activities are all examples of cybercrime. A comprehensive cybersecurity plan contains layers of protection to guard against cybercrime.
Any tangible item or claim of fact that may be submitted to a competent tribunal as a way of verifying the truth of any purported issue of fact under inquiry before it is referred to as evidence in law.
Even though evidence has both legal and technological aspects in this respect, court evidence has always been a human problem rather than a technological one. Problems with proof have been dealt with in a variety of ways throughout history and at different levels of culture.
The term ‘evidence’ can also refer to the words said and items displayed by court witnesses, according to English law. However, it may also refer to the facts that have been shown to exist by those words or objects, and which have been chosen as the conclusion above other facts that have not been proven sufficiently. Evidence can also be derived to claim that a given fact is pertinent to the subject of the investigation.
Evidence now has a more defined definition and is solely used in its original context. As a result of the legislation, it may be determined that the term “evidence” refers to only those instruments that are used to bring relevant and appropriate facts before the Court and to persuade the Court of these facts.
F
Force Majeure can be defined as a clause that is embedded in the contract to remove the liability of the parties in case of unavoidable catastrophes such as tornadoes, earthquakes, tsunamis, etc, due to the increased use of online platforms, cyber threats are also taking place in such clauses.
Depending on the jurisdiction, these ideas are defined and implemented differently.
The idea of force majeure originated in French civil law and is now widely accepted in many jurisdictions that have adopted the Napoleonic Code as their legal system.
The term “force majeure” is defined as “an event or effect that cannot be expected or controlled,” according to Black’s Law Dictionary. It’s a contractual provision that divides the risk of loss if performance becomes impossible or impractical, particularly due to an occurrence that neither party could have predicted or controlled.’ While force majeure has not been defined or dealt with expressly in Indian statutes, it is governed under Section 32 of the Indian Contract Act, 1872, saying that the contingent contracts would not be enforceable if the occurrence of an event becomes impossible in the future.
G
GST is known as the Goods and Services Tax. It is an indirect tax which has replaced many indirect taxes in India such as excise duty, VAT, services tax, etc. The Goods and Service Tax Act was passed by the Parliament on 29th March 2017 and came into effect on 1st July 2017.
Goods and Service Tax (GST) is levied on the supply of goods and services. Goods and Services Tax Law in India is a comprehensive, multi-stage, destination-based tax that is levied on every value addition. GST is a single domestic indirect tax law for the entire country.
The business adds the GST to the price of the product, and a customer who buys the product pays the sales price inclusive of the GST. It is collected and remitted to the government by the company or seller. In certain countries, it is also known as Value-Added Tax (VAT).
The goods and services tax (GST) is a consumption tax on products and services sold in the United States. The tax is included in the final price and is paid by customers at the time of sale, with the proceeds going to the government.
The GST is a worldwide tax that is utilised by the majority of countries. The GST is typically levied at a single rate across the country.
I
An inheritance is a financial phrase that refers to the assets that are passed down to someone after they die. Most inheritances may be cash, but they can also include stocks, bonds, vehicles, jewellery, art, antiques, real estate, and other physical items.
Hindu – For Hindus, which include Buddhists, Jains, Sikhs, and Arya Samaj, the law of intestate succession is codified in Hindu Succession Act, 1956. Christian and Parsis are governed under the Indian Succession Act, 1925, which provides for separate provisions of inheritance. Muslims are governed by the Muslim Personal Law in India.
In many countries, the heir must pay Inheritance Tax for inheriting any such property or assets from your parents or grandparents or any other relative or friend. In India, however, the concept of levying tax on inheritance does not exist now. The Inheritance or Estate Tax was abolished with effect from 1985.
When a person or a firm can no longer satisfy its financial responsibilities to lenders when loans fall due, they are said to be insolvent. Insolvency is governed by the Insolvency and Bankruptcy Code, 2016, also popularly called IBC. It prescribes the procedure for initiating insolvency proceedings, the appointment of an Insolvency Resolution professional and initiating the Corporate Insolvency Resolution Process (CIRP).
Before entering bankruptcy procedures, an insolvent firm or individual would most likely make informal agreements with creditors, such as putting up alternative payment arrangements. Poor cash management, a decrease in cash inflow, or an increase in costs can all lead to insolvency.
It can lead to insolvency proceedings, in which the insolvent person or entity faces legal action and assets are liquidated to pay off outstanding debts. Creditors can be contacted directly by business owners to restructure debts into more affordable instalments. Creditors are usually sympathetic to this strategy since they want to be paid, even if it’s on a delayed basis.
Insolvency is a sort of financial crisis in which a person or company is no longer able to pay their payments or meet their other commitments. According to the IRS, a person is insolvent when his or her entire obligations exceed his or her total assets.
Insolvency can be straightforward or well-known. Simple bankruptcy is defined as a debtor’s failure to pay his debts, with no accompanying legal notoriety or promulgation. Infamous insolvency is defined as insolvency that has been identified by some public acts as becoming notorious and irreversible, such as applying for the benefit of insolvent laws and being discharged under them.
L
A third-party financer provides a claimant with the financial means needed to challenge the claimant’s issues before a judicial forum or an arbitration tribunal. The financer receives a defined percentage of the monetary relief that the claimant obtains as a result of the legal or settlement procedure, which serves as the financer’s return on investment.
A non-recourse litigation financing agreement means that the claimant is only required to pay the financer the agreed-upon amount when they receive actual monetary relief as a result of pursuing the dispute.
A dispute arises concerning the purchase agreement and the bigger corporation repudiates the agreement and refuses to give back the money already paid by the smaller company. Instead, a low-ball settlement offer is made by the bigger company. If the smaller company did not have the financial resources to contest long-stretched litigation, it will be forced to accept the sub-par settlement offer.
A typical litigation financing arrangement entails the financer performing an exhaustive due diligence exercise before deciding to fund a specific lawsuit.
The diligence process comprises both parties to the dispute performing legal, financial, and operational due diligence to assess the claims’ viability and the other party’s financial ability to pay the required amount. A non-disclosure agreement signed by the claimant and the financer at the outset guarantees that any information shared with the financer remains private.
M
The metaverse is a virtual world that exists on the internet. In Metaverse, users can create their digital assets and experiences that can be used in other virtual worlds or even in the real world. Because of its unique features, Metaverse has become a popular destination for online gaming, social networking, and business transactions.
It’s an immersive digital world where you may soon work, play and, naturally, enter disputes. As users resolve their differences a new legal system will emerge meta law. As power in the virtual world is concentrated in the hands of a few creators, we must take care that meta law, or the law of the metaverse, does not end up slanted in their favour.
In more simple terms, think of the metaverse as the Internet and different virtual worlds as analogue to the websites on the Internet. These various virtual worlds offer 3-D virtual spaces to the users using advanced computerized hardware systems, to feel, smell and touch as you would do in Real World. The name was coined in the 1992 novel “Snow Crash”. It described a virtual reality people could explore through their avatars. At present many laws apply to the metaverse depending upon the issue that arises. For data protection at present, Information Technology Act 2000 and Information Technology Rules, 2011 apply. To control monopolisation, the Competition Act, 2022 enforces antitrust laws. To safeguard copyright, trademark, patents, and designs, various acts under Intellectual Property laws shall be applicable in India. As people have started buying digital land in the metaverse, we might see the applicability of real estate laws as well. Non-fungible tokens or popularly called NFTS are also now dealt with in the metaverse. We might see the applicability of fintech laws as well. However, with time the laws will be needed to be modified to adapt to changes in technology and cover issues arising in the metaverse.
A merger is an arrangement that brings two current businesses together to form a new one. There are several sorts of mergers, as well as various motives for organizations to merge. Mergers and acquisitions (M&A) are frequently used to broaden a company’s reach, enter new markets, or increase market share.
All of this is done to boost the value of the company’s stock. During a merger, corporations frequently have a no-shop provision in place to prohibit further companies from buying or merging with them.
Mergers are most typically used to acquire market share, lower operating costs, expand into new territory, combine shared goods, enhance revenues, and improve profits, all of which should benefit the companies’ shareholders. Following a merger, current owners of both companies are given shares in the new firm.
Every merger has its own set of conditions and causes, and these factors influence how the deal is handled, addressed, managed, and implemented. The success of a merger, on the other hand, is determined by how successfully the dealmakers can combine two organizations while keeping day-to-day operations running. Each transaction has its unique set of flips, which are impacted by a variety of external elements like the human capital component and leadership.
N
An NFT is a cryptographic tool using a suitable blockchain to create a unique, non-fungible digital asset. An NFT is used to represent other assets (such as a specific copy or version of a digital artwork, which can be stored on a blockchain or “off-chain”, e.g., on a website).
The blockchain keeps an immutable ledger of ownership of the NFT. Each NFT is powered by a smart contract (typically based on Ethereum’s ERC-721 standard) and contains metadata that makes it unique. The hype surrounding NFTs is their potential use in proving ownership and authenticity of the asset which it represents.
Because the process of tokenization allows any work, such as artwork, literary work, marks, inventions, photographs, GIFs, or music, to be turned into a digital asset and sold on host markets, NFTs have become a topic of interest in Intellectual Property Law.
A piece of code inserted into the blockchain is the most prevalent sort of NFT. That code is made up of different pieces of data. The ERC-721 standard for NFTs specifies which components are required and which are optional.
S
A shareholder, sometimes known as a stockholder, is a person, corporation, or organization that holds at least one share of a firm’s equity stock. Shareholders get the rewards of a company’s success since they effectively own it. Increased stock prices or financial earnings delivered as dividends are examples of these benefits.
When a corporation loses money, the share price lowers, which can result in shareholders losing money or seeing their portfolios suffer losses. A majority shareholder is a single shareholder who owns and controls more than 50% of a company’s outstanding shares. Minority shareholders, on the other hand, are individuals who own less than 50% of a corporation’s equity. As residual claimants on a company’s earnings, shareholders are susceptible to capital gains (or losses) and/or dividend payments. The rights of shareholders including the protection of minority shareholders are governed under the Companies Act, 2013.
T
A trademark (also known as a brand name in layman’s terms) is a visual symbol that can be a word, a signature, a name, a device, a label, a number, or a combination of colours utilized, services or other articles of commerce to differentiate it from comparable products or services originating from another. A trademark protects the owner of the mark by granting them the exclusive right to use it or the right to allow others to use it in exchange for payment. Trademark protection is enforced by the courts, which can stop trademark infringement in most jurisdictions.
The Controller General of Patents, Designs, and Trademarks oversees enforcing such protection under the Act. The Trademark Act of 1999 governs trademark protection, registration, and the prevention of trademark infringement. It also covers the trademark holder’s rights, infringement fines, damage remedies, and trademark transfer methods.
The term “trademark infringement” refers to a breach of a company’s trademark rights. When a trademark or a substantially similar mark is used without permission on products or services of a comparable type, it is said to be infringed. In such a scenario, the court will consider whether the trademark’s usage would lead the customer to be confused about the genuine brand they are buying.
We are happy to connect and grow our community. To contribute content or share your thoughts and suggestions, please write to us at editorial@lawwiser.com
Call us at – +91 79826 34489
We also do collaborations for thought leadership and special content video series. For more information on sponsorship opportunities, drop in a line at talktous@lawwiser.com
Address – 315 US Complex, 120 Mathura Road, New Delhi 110076
All rights reserved by LegalCast Global Pvt. Ltd.
