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China’s restrictions on cross-border transfer of personal information: an update on regulatory policy and practical implications

This article will outline the development of China’s restrictions on the cross-border transfer of personal information (PI export), detailing PI export mechanisms provided by the Personal Information Protection Law. It will also explain the practical implications of the restrictions.

Utilising Generative AI in Businesses: Risks and Best Practices

The rise in popularity of generative artificial intelligence (‘generative AI’) has ignited the discussion on whether junior employees can be replaced by it. Some have gone to the extent of questioning whether professionals, such as lawyers, can also be replaced by generative AI. Is it wise to replace junior employees or lawyers with generative AI? What factors should be considered before deploying generative AI tools in your business? To consider these questions, we first need to understand the basic workings of generative AI and what it can offer. Fundamentally, AI is intelligence that is not biological. The general understanding is that machines will be ascribed with this intelligence. These machines have the ability to interpret, learn from and process external data in a way that is similar to the capabilities of the human mind. Generative AI is a type of AI program that generates content from a data set. It uses deep learning, a type of machine learning system that behaves like a neural network to simulate the functions of a human brain. In other words, it can mimic human intelligence by exhibiting analytical skills to create new content. Not only can generative AI be utilised in chatbot programs to create text, but it can also be used in programs that can create images, sound or videos. This article will consider two major forms of generative AI, in the context of risks to businesses: chatbots using generative pre-trained transformer technology programs; and image generating programs.

A Brief Discussion on the Implications, Regulation and Prospects of AI in Dispute Resolution Practice with a Focus on China

Initiatives and challenges for the introduction of distributed energy systems

The Japanese government has recently taken further action to promote renewable energy to achieve carbon neutrality by 2050. One of the actions is to promulgate relevant legislation accelerating the introduction of distributed energy systems from locally available resources, including the adoption of a new licence, reform of the grid operation mechanism and development of the FIT/FIP system. However, there has been some hurdles to expanding renewable energy as local communities have raised concerns regarding security, disaster prevention and the environment, including decommissioning arrangements. This article outlines the efforts being made in the Japanese legislation in relation to these issues.

Deposit of money as an interim measure in aid of arbitration

Indian courts have adopted a novel and commercially pragmatic approach in ordering recalcitrant debtors to deposit money as security in aid of a claim in arbitration where there are clear admissions of liability or their defence is moonshine.

Group of Companies doctrine in arbitration: time to re-visit the Indian approach?

The application of ‘Group of Companies’ doctrine in arbitration has been criticized by jurists and arbitration practitioners in both civil and common law countries for diluting consent and allowing addition of parties thus changing the manner in how arbitrations should be conducted. The doctrine has found its usage especially in multi-party proceedings and is intrinsically linked to piercing the corporate veil. In this article, we have attempted to trace the evolution of this principle in the Indian context (domestic and international commercial arbitrations) and discuss some scenarios which could call for its application in future.

The implications of Brexit on taking African claims to the UK: the end of suing British conglomerates in London?

The idea of African group claims against UK-based corporates that have been brought to the English courts is not entirely new, but has seen a spate of claims in the last five years or so, suggesting that it is a trend that may be accelerating.

Enforcement of Indian bank guarantees: a dichotomy in law

Enforcement of Indian bank guarantees: a dichotomy in law- October 2020

An arbitration seated in India – what can you expect?

While the arbitration regime in India is consistently developing, inevitably, it has become a tedious task for parties situated in jurisdictions outside of India to stay abreast of on-ground developments (judicial and statutory). To aid stakeholders associated with an India-seated arbitration, we aim to chart through the course of an arbitration seated in India which could be initiated by/ against a foreign entity.

The law of anti-suit injunctions in India - Litigation Committee newsletter article, April 2020

The law of anti-suit injunctions in India - Litigation Committee newsletter article, April 2020

A glimpse of the draft digital personal data protection rules in India

This article seeks to highlight the major provisions proposed in the recent draft Digital Personal Data Protection Rules, published for public consultation by the Ministry of Electronics and Information Technology, as part of the Government of India, while simultaneously assessing their potential impact on data protection and the right to privacy, in accordance with their applicability in line with the Digital Personal Data Protection Act, 2023.

Indian court interference in arbitration: interim measures and urgent reliefs

Indian jurisprudence on court interference in arbitration has gone through a long and painful, almost soul-searching journey. It started out with courts regularly interfering in arbitration proceedings which often made arbitrating in India ineffective as one party could at any time go to the court and agitate the same dispute, notwithstanding an exclusive contractual arbitration provision. Fortunately, common sense prevailed and successive cases have now curtailed interference to more traditional grounds such as public order or demonstrable bias. However, there is one area of interference – interim measures and urgent reliefs - which still retains quite a punch if a party to a contract intends to use dispute resolution as a strategic tool in a contractual relationship.

The arbitration and insolvency collision: the Indian Perspective

By Alipak Bannerjee and Payel Chatterjee. The interplay of arbitration and insolvency has assumed greater significance in recent times with the evolution of new insolvency regime in India. With limited statutory guidance available on this subject, many arbitral proceedings have been stalled due to the onset of insolvency proceedings. While some jurisdictions have settled the position of law in this regard, India is relatively a new entrant to the list.

Indian Supreme Court decision on characterisation of software payments

The Supreme Court of India has recently rendered its decision in Engineering Analysis Centre of Excellence v The Commission of Income Tax & Anr, finding that the amount paid by resident Indian end-users or distributors to non-resident computer software manufacturers or suppliers, as consideration for the resale or use of computer software, cannot be characterised as ‘royalty’ (that is, the use of copyright in the computer software) under Article 12 of the Tax Treaties.

India’s new telemedicine guidelines

The article provides an introduction to recently issued guidelines on telemedicine in India, and summarises the various provisions included in the relationship between doctors and their patients.

Indian law update: overlap of Admiralty Court jurisdiction and Company Court jurisdiction, Maritime and Transport Law, July 2020

This article provides a summary of the judgment passed by the honourable High Court of Bombay on 19 May 2020, which resolves the conflict under Indian law regarding arrest of a vessel when the owner undergoes liquidation or an insolvency resolution process. It also settles the issue of whether a claim of a person having a maritime claim/lien against such a vessel would be settled as per order of priorities set out under company law or under admiralty law.

UK courts continue to clarify the basis and scope of ‘representative actions’

Under UK civil procedure rules, a ‘representative action’ may be initiated or continued by or against one or more persons as representatives of others who have the ‘same interest’ in the claim. The use of this collective redress mechanism has expanded considerably in the last decade, despite the absence of clear juridical guidance on the scope of this form of action. The UK Court of Appeal has very recently provided helpful clarification on the fundamental requirements of a ‘representative action’ and what is required to satisfy the ‘same interest’ test in practice.

Stay of anti-suit injunction: upholding public policy over comity of courts

Since conflict is inevitable, dispute resolution clauses often become the cardinal clause for any contract. Given the advantages of party autonomy, faster/streamlined process, confidentiality, and flexibility, parties often opt for arbitration as an alternate dispute resolution mechanism. However, when disputes traverse jurisdictions, the complexity of resolution also increases and the conflicting and varying parameters of arbitrability of the dispute in each jurisdiction may become a hinderance to the intent of the parties to opt for arbitration. This article aims to examine the sanctity of parties’ choice to arbitrate through the lens of the Bombay High Court’s recent decision in Anupam Mittal v. People Interactive (India) Pvt. Ltd. & Ors. effectively disregarding an anti-suit injunction (and consequently disregarding arbitration). In the case of Anupam Mittal (Supra), the stay on the anti-suit injunction was granted on the premise that the subject matter of dispute was prima facie non-arbitrable under Indian law, and any award rendered pursuant thereto would thus become unenforceable in India.

Due process paranoia – an impediment to efficient arbitral proceedings?

In order for an arbitration to be efficient, one of the key factors is the procedural management decisions that drive the arbitration. It is important that such decisions are not only based on sound principles of law but also time-bound to avoid lengthy arbitrations. However, this often leads to indecisive and paranoid arbitral tribunals that fear annulment of an arbitral award on the grounds of due process. In this article, the authors discuss the due process paranoia and how it is an impediment to efficient arbitral proceedings.

All That Glitters Is Not Gold: The Otiose Existence of the Indian Stewardship Codes

Hot on the heels of the ‘corporate purpose’ and environmental, social and governance (ESG) debates, investor stewardship is the latest buzzword in comparative corporate governance. What started as a domestic regulatory initiative in the United Kingdom in 2010 morphed into a global phenomenon and eventually reached Indian shores. A stewardship code is essentially a principles-based framework, which aids institutional investors in fulfilling their responsibilities, in terms of protecting and enhancing the value of their clients. A corollary of this, meaningful implementation of the stewardship principles also improves the corporate governance practices of the investee companies – institutional investors are required to actively engage as ‘stewards’ in the corporate governance of their portfolio companies. The Insurance Regulatory and Development Authority of India (IRDAI) floated its stewardship code in 2017 (and revised in 2020) and the Pension Fund Regulatory and Development Authority (PFRDA) followed suit in 2018. Most recently, the stewardship code of the Securities and Exchange Board of India (SEBI) (India’s capital markets regulator) was implemented in July 2020 and the SEBI, through a separate circular dated 5 March 2021, also mandated mutual funds to vote on all resolutions from 1 April 2022 (collectively, the IRDAI, PFRDA and SEBI stewardship codes are referred to as ‘the Indian stewardship codes’). Today, UK-style stewardship codes have been exported to over 20 jurisdictions, and the Indian stewardship codes resonate with the global stewardship movement and the drive towards corporate sustainability and engagement on ESG-related issues. However, while the Indian stewardship codes have made a laudatory start, there is significant scope for improvement, in light of developments in the global stewardship movement. One significant reason why improvements are necessitated is the modelling of the Indian stewardship codes along the lines of the UK code. This modelling has overlooked the differences in cross-jurisdictional shareholding patterns and consequently limited its success – the article explores the structural weaknesses flowing from the transplantation of the UK code to India (a country with a concentrated shareholding pattern).

Navigating trade secret protection in R&D collaborations: requirements and challenges

In today's dynamic business environment, research and development (R&D) collaborations are pivotal drivers of innovation, spanning various sectors. Yet, the efficacy of many such collaborations relies heavily on ensuring the protection of confidential information and/or trade secrets. This article delves into the intricate requirements and challenges associated with safeguarding confidential information and/or trade secrets within R&D alliances and partnerships, drawing on established legal frameworks and industry norms.

The developing compass of emergency arbitration in India

By Shaneen Parikh, Radhika Bishwajit Dubey and Sanskriti Sidana. Over the last decade, emergency arbitration proceedings have increasingly been recognised and adopted by several jurisdictions and arbitral institutions around the world. Emergency arbitration has recently come under the spotlight in India with courts scrutinising the award passed in favour of Amazon in the EA proceedings against the Future Group.

Revisiting the enforceability of FIDIC’s notice requirement under Indian law: contractors cautioned

The European automotive and mobility service industry: transformation and revolution – IBA Annual Conference Paris, 2 November 2023

On the afternoon of Thursday 2 November 2023, at the IBA Annual Conference in Paris, the European Regional Forum lead the organisation of the automotive session titled ‘The European automotive and mobility service industry: transformation and revolution’. Contrary to its title the panellists came from different areas of the world, including Europe, India, Mexico and South Korea. During the session, panellists discussed issues relating to data privacy, developments concerning autonomous vehicles, the future of electric vehicles and more.

Using the practice of law to facilitate change and to accelerate a just transition

A session report from the joint session of the IBA Regional Fora at the IBA Annual Conference 2024 in Mexico City.

IBA hosts largest transnational crime conference to date

The 26th Transnational Crime Conference, which took place between 8–10 May 2024 in Milan, Italy, was a resounding success. In fact, it has become the most well-attended international criminal law conference in the IBA’s history!