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ZBA > Firm Profile

ZBA is a client centric law firm providing international quality Indian legal services. We advise leading businesses which operate in India. We are known for advising on complex, strategic and reputation critical matters for our clients. This is where our quality of expertise, knowledge, tactics and depth of experience delivers the greatest impact and value.

Understanding your requirements, objectives and operating environment is important to us. We place particular emphasis on this aspect. We work with you to achieve extraordinary results, harness commercial potential and become trusted long-term partners. Smart strategies and honest advice set us apart from our peer group.

Domestic or international, established or forthcoming – we work with a diverse range of organisations. We identify and manage risk and liability, navigate legal challenges and enable your strategic growth in today’s complicated and volatile business environment.

Legal Developments

Pre-Packaged Insolvency Resolution Process Framework – A Leap Forward

15th March 2021

1. Introduction

 Covid-19 related stress severely impacted all aspects of the Indian economy including the nascent insolvency regime under the Insolvency and Bankruptcy Code, 2016 (“Code”). The financial stability report (“FSR”) of December 2020 released by the Reserve Bank of India (“RBI”) predicts a sharp rise in the gross non-performing assets of banks by September 2021[i].

Changes for Listed Debt Securities easier participation into Debt Resolutions of Indian Corporates a

10th November 2020 Introduction The SEBI (Issue and Listing of Debt Securities) Regulations, 2008 (“Debt Regulations”) provide the framework for issue and listing of debt securities in India (“NCDs”). SEBI as a proactive guardian of the capital markets has taken measures to assist market investors in debentures having a framework which integrates into any debt resolution process where an intercreditor agreement (“ICA”) needs to be executed by all creditors under the RBI schemes for debt restructuring. With the view to improve and strengthen the debt markets SEBI issued circular Standardisation of procedure to be followed by Debenture Trustee(s) in case of ‘Default’ by Issuers of listed debt securities” dated 13 October 2020 (“SoP Circular”) and also amended the Debt Regulations on 8 October 2020 (“Amendment Regulations”) to increase disclosure to investors and enhance security related aspects.

Indian Takeover Code – Extent of Disclosure on ‘Encumbrance’ in Structured Debt Transactions

10th November 2020 Introduction Pursuant to the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (‘SAST’), shares taken by way of encumbrance are treated as an acquisition. The scope of the term encumbrance was sharply brought into light by a recent adjudication order by Securities and Exchange Board of India (‘SEBI’) involving 2 promoter entities of Yes Bank Limited (‘YBL’) in March 2020. Whilst this case was decided in the context of an earlier version of SAST, the order has implications on drafting transaction documents and disclosing an encumbrance by promoter entities in financing transactions.

Ease of Foreign Portfolio Investor Flow of Capital into India through Mauritius

10th November 2020

Recent changes in investment laws have been made by the Securities and Exchange Board of India (“SEBI”), which regulates capital markets, in order to incentivise foreign portfolio investors (“FPIs”) to increase their investments in India. SEBI has enabled the Government to determine additional countries, other than Financial Action Task Force (“FATF”) member countries, where FPIs can register under less onerous conditions. Recognising the importance of Mauritius as a key conduit of FPI investment into India, the Government has permitted eligible Mauritian FPIs to register under the more beneficial category of Category I FPI.

Stricter Foreign Direct Investment from Neighbouring Countries – Future Challenges

9th November 2020 Introduction The Government of India has a comprehensive policy framework on foreign direct investment (“FDI”) in the circular on consolidated FDI policy issued by the Department of Industrial Policy and Promotion (“DIPP”), Ministry of Commerce & Industry, Government of India (“FDI Policy”) which permits offshore investment under the: (i) automatic route (i.e. without government approval) or (ii) government route (i.e. with prior approval) subject to sectoral conditions.

Arrest of Vessels for unpaid Bunker Supplies in the Gujarat High Court – A Change in the Law

9th November 2020 Introduction The recent judgment of Dan Bunkering Pte. Ltd v. Best Excellence Corporation Ltd (Civil Application No.1 of 2019 in Admiralty Suit no.8 of 2019) 21 August 2020 has upturned admiralty law in Gujarat. Those familiar with vessel arrests in India may know that the Gujarat High Court had for over two decades permitted bunker suppliers to arrest ships for a charterers debt. There was a brisk trade in the Gujarat High Court of arresting vessels for unpaid bunkers admittedly ordered and supplied at the behest of the charterer. An enlarged view of the personification theory of a ship was adopted by the local court to justify arresting ships without any requirement of the in personam liability of the owner as a precondition to invocation of the court’s in rem jurisdiction. Ship arrest for the unpaid dues of a time/voyage charterer was easily obtained. The distinction between maritime liens and maritime claims were confused and conflated by the local courts.

Put Options and Enforcement of Foreign Awards in India

5th November 2020 Introduction In another instance of the Indian judiciary’s pro-arbitration approach, the Bombay High Court in a recent judgement enforced a SIAC award arising out of a dispute relating to a shareholder agreement. The Court rejected public policy objections to enforcement relating to inadequacy of stamp duty and alleged violations of exchange control regulations.

India’s Embrace of Online Courts

5th November 2020 Past attempts by the Indian judiciary to digitise cases have not met with much success. The lockdowns following Covid 19 have given a renewed and urgent impetus for virtual justice in India. Recent virtual hearings by the Bombay High Court during the lock- down period met with universal admiration with clamours that this process become the new norm for all disputes- not just urgent matters, as is presently the case.

FORCE MAJEURE AND FRUSTRATION OF CONTRACTS DURING COVID-19

14th May 2020

INTRODUCTION

The unprecedented upheaval caused by COVID-19 has affected normal performance of contractual duties. Logistical issues, health and safety risks and governmental decreed ‘lock-downs’ for extended periods of time have up-ended life and commercial activity on an unparalleled scale. A post-Covid world is beset by delays, payment defaults and a failure or refusal to perform contractual promises and stipulations.

India’s Embrace of Online Courts

14th May 2020

Introduction

Past attempts by the Indian judiciary to digitise cases have not met with much success. The lockdowns following Covid 19 have given a renewed and urgent impetus for virtual justice in India. Recent virtual hearings by the Bombay High Court during the lock- down period met with universal admiration with clamours that this process become the new norm for all disputes- not just urgent matters, as is presently the case.

The Next Wave – Personal Guarantors under the Insolvency and Bankruptcy Code, 2016

6th February 2020 By Niloufer Lam and Zarir Bharucha