|Bhuvana Iyer, Mumbai Uncensored, 10th January 2022|
Amazon has moved the National Company Law Appellate Tribunal (NCLAT) challenging last month’s Competition Commission of India (CCI) order that suspended the regulatory approval for its 2019 deal with local retailer Future Group. The NCLAT is likely to hear the matter this week. Separately, Amazon also filed a Special Leave Petition (SLP) in the Supreme Court last weekend, against a Delhi High Court order on January 5 staying the arbitration proceedings initiated by it against Future Retail over the latter’s Rs 24,713 crore merger deal with Mukesh Ambani’s Reliance Retail.
The Competition Commission of India (CCI) last month suspended its approval of Amazon’s 2019 deal with Future, denting the U.S. e-commerce giant’s attempts to block the sale of Future’s retail assets to Indian market leader Reliance Industries. The anti-trust regulator had said an approval granted to the US e-commerce giant over two years earlier to acquire a 49% stake in Future Coupons (FCPL) would ‘stand in abeyance’, as the firm suppressed information while seeking clearance. The CCI also imposed a Rs 202 crore penalty on Amazon.
The CCI’s December 2021 order followed complaints filed by FPCL, Future Retail’s independent directors and the Confederation of All India Traders (CAIT) alleging Amazon, in its plea before CCI, had not disclosed the intent to indirectly control Future Retail, the parent firm of FCPL, via its 49% acquisition in FCPL.
On January 5, a day after receiving a set back from a single-judge bench of the Delhi High Court, Future Retail got a reprieve from the Court’s division bench, which stayed the arbitration proceedings initiated by Amazon before the Singapore Tribunal till February 1. Future Retail and Future Coupons had sought stay on the arbitration proceedings.
Background of the case:
Amazon NV Investment Holdings (“Amazon”) purchased a 49 percent equity position in Future Coupons Limited (“Future Coupons”), which is a promoter group entity of Future Retail Limited (“Future Group”), in November 2019. The transaction was estimated to be worth Rs. 2000 crores. Future Coupons owned 7.3 percent of Future Retail, implying that Amazon would indirectly own 3.5 percent of the company as a result of the acquisition.
The transactions triggered three agreements:
1. Future Coupons’ shareholder’s agreement with Amazon (FCPL SHA)
2. FCPL’s shareholder’s agreement with Amazon (FCPL SHA)
3. FCPL’s share subscription agreement with Amazon (FCPL SSA)
Apart from the transactional component, Amazon had gained some credibility because of the ‘call option’ it was given. The ‘call’ granted Amazon the right to purchase all or a portion of the assets of marketing business Future Retail. According to reports, the arrangement also included a list of 30 businesses with whom the Future Group would not be able to do business, namely Reliance Retail, a Reliance Industries Limited affiliate. This was meant to be another special arrangement with Future Group, similar to the one Amazon signed with Shoppers Stop in 2017 when it bought a 5% interest for INR 180 crore.
The clause on Restricted Companies/Competing Businesses: One of the requirements was that Amazon would present a list of industrialists/businesses, and Future would not sell the interest to these entities without Amazon’s permission. The agreement prohibited 15 (fifteen) corporations from engaging in or purchasing holdings in Future Group’s retail assets, including Reliance Industries, Walmart, Alibaba, Softbank, Google, Naspers, eBay, Target, Paytm, Zomato, and Swiggy.
Call-option: Amazon was offered a call option to purchase all or part of Future Coupons’ stake in Future Retail, which may be exercised from the third year onward till the tenth year of the deal.
Reliance Industries Limited purchased Future Group’s retail and wholesale divisions, as well as the logistics and warehousing companies, as a going concern on a slump sale basis in August 2020 for a lump sum aggregate value of Rs. 24,713 crores. Future Retail, which holds Big Bazaar, FBB, Foodhall, Easyday, and Nilgiris, Future Lifestyle Fashion Limited, which operates Brand Factory, a fashion discount chain, and Future Consumer Limited were also bought as part of the agreement. Future Groups’ finance and insurance operations, on the other hand, were not included in the acquisition. Reliance’s investment in Future Group was primarily motivated by the need to grow its offline retail footprint and boost profitability through economies of scale.
Amazon claimed that the Future Group-Reliance acquisition was illegal because it violated an agreement reached between Amazon and Future Coupons in 2019. The deal, according to Amazon, disturbed with Amazon’s call right to purchase Future Coupons’ shareholding in Future Group, which could have been implemented between the third and tenth anniversary of the agreement, and it was also in violation of the competitive company clause in the agreement, which stated clearly Reliance as a restricted corporation for the reasons of the competing business clause.
The Singapore arbitrator decided in Amazon’s favour and issued an interim injunction, suspending the Future-Reliance deal for 90 (ninety) days but later being extended. India’s Arbitration and Conciliation Act, 1996 will serve a decisive part in this issue. The issue is that even if the Singapore-based arbitrator rules in Amazon’s favour, the ruling will not be legally binding in India. Amazon contacted the Competition Commission of India (CCI) and the Securities Exchange Board of India (“SEBI”) as a result of this. It also went to the Delhi High Court to have the arbitration order enforced and to stop the Future-Reliance deal, which the Delhi High Court upheld. Future Group then appealed to the Singapore arbitration to have Future Retail removed from the interim order.
The Crypto Effect : Framework, challenges & The way forward
SHASHWAT MISHRA – Mumbai Uncensored, 15 January 2022
2021 was a year full of buzz around cryptocurrency in India, apps coming up with private cryptocurrency(bitcoin), people investing in bitcoins, government twice was close to come up with a law banning all private cryptocurrency, but no material step was taken in this area. It becomes imperative to understand all about cryptocurrency and the article aims to give a detailed analysis on cryptocurrency, its challenges and the way forward.
What is cryptocurrency?
A cryptocurrency is a medium of exchange similar to a Rupee or any other currency. The difference is while a rupee or a dollar exists in a physical form which is a printed note, cryptocurrency is held in an electronic form based on a technology named blockchain. Blockchain is nothing but a decentralized ledger in an electronic form which contains “blocks” in other words transactions across a peer-to-peer network, which means without an involvement of a third party.
Bitcoin is the world’s best known cryptocurrency which is considered to be the largest in terms of market value followed by Ethereum. If we talk about how cryptocurrency works, it needs to be understood in the context of a fiat money (currency with authorized permission and regulation), for example a rupee is regulated by the Reserve Bank of India which ensures that the money in circulation is genuine and is recorded. In the context of a cryptocurrency, a chain of private computers execute this process and solve complex cryptographic puzzles, this is done to authenticate the transaction, this process is called mining.
TRADING IN CRYPTOCURRENCIES
To trade in cryptocurrency, one needs to first buy a cryptocurrency, there are two ways in which a cryptocurrency can be brought, firstly, you can buy crypto coin from someone and the second, is to mine your own cryptocurrency. Buying happens in either an exchange facilitated transaction or a peer-to-peer transaction. Talking in the context of India, the simplest way to trade in cryptocurrency is through one of the exchange and trading platforms which includes, WazirX, CoinDCX, CoinSwitch Kuber etc.
To trade in cryptocurrency by using INR, the user needs to register on one of the exchange platforms mentioned above, and complete a KYC process, then if the user is buying cryptocurrency for the very first time will need to load INR money in their wallet of their cryptocurrency exchange.
FRAMEWORK ACROSS COUNTRIES & INDIA
El Salvador has become the first country to recognize bitcoin as a legal tender, China on the other hand has imposed a complete ban on cryptocurrency. It becomes imperative to look at some of the other jurisdictions around the world and their regulatory framework regarding cryptocurrency.
In the United States, The federal government does not recognize cryptocurrency as a legal tender, the two major regulators i.e. US Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) are playing catch up while regulating the digital currency market, their objectives are two fold, firstly, protecting the investing public and secondly, maintaining market stability.
In the United Kingdom, Her Majesty’s Revenue and customs department has not considered crypto assets as a currency. Furthermore, it has noted that cryptocurrency does not qualify to be any form of investment activity.
In Canada its regulator, Canada Revenue Authority (CRA) though does not recognize it as a fiat currency but treats it like a commodity used for payment and investment purposes and the same is subject to taxation.
Israel through its legislation, Supervision of Financial Services Law includes digital currency within the definition of financial assets. The Israel tax Authority demands 25% on profits made through exchange and trading of cryptocurrency.
India though has not come up with any policy or legislation either regulating or banning cryptocurrency, however, before the winter session of parliament last year there were conjectures that the government may come up with a law banning all private cryptocurrencies, but nothing concrete happened, which has led to uncertainty amongst investors in the Indian crypto market. The Reserve Bank of India (RBI) though, has given some hints as to what would a regulatory framework on cryptocurrency in India look like.
The RBI is expected to come up with Central Bank Digital Currency (CBDC) a digital currency that can be transacted using platforms based on blockchains and would be regulated by RBI. However, this is just a form of digital currency, but the broader question is what should be a comprehensive policy related to cryptocurrency? Mr. Hemant Batra a renowned public policy expert and a lawyer while speaking to Mumbai Uncensored has provided his detailed insight and expertise on the policy regarding cryptocurrency, he says, “public policy can be of two types, firstly, a policy which brings or initiates a reform in any sector or segment within the society and second, is a policy brought about to formalize a change which has already happened. The Indian cryptocurrency market has now become very big with involvement of billions of dollars in the market hence, it is now unattainable and irreconcilable for the government to completely ban all sorts of cryptocurrency and its trading and investment. India is absolutely ready to accept cryptocurrency with a regulatory system based on global requirements as per the guidelines issued by IMF (International Monetary Fund). Banning cryptocurrency will lead to damaging the financial statistics of all nations”
CONCERNS AROUND CRYPTOCURRENCY
The next aspect is the challenges that cryptocurrency puts forth before the policy makers, these can be termed as “macro” consequence of cryptocurrency. First aspect is the challenge related to the monetary policy, former RBI governor Duvvuri Subbarao speaking at a public forum has expressed his concerns on cryptocurrency and its impact on monetary policy according to him, cryptocurrency may erode central bank’s control over money supply, “Crypto is backed by algorithms and there is fear that the central bank might lose control over money supply and inflation management. There are also concerns that crypto will disrupt the monetary policy,” he said, “Crypto can jump capital controls; fiat money is linked to the reserve currency,” his indication was towards “stablecoins” whose value is tied to a fiat currency by maintaining equivalent reserves (“currency board” exchange rate regime).
The next challenge is fiscal, that is cryptocurrency being used as a tool for tax evasion as it would be very feasible for a crypto investor to invest his untaxed money in purchasing bitcoins and similar would be a case in money laundering wherein “proceeds of crime” could easily be invested in any of the cryptocurrency exchange and trading platforms. Mr. Batra on this point states, “FATF (Financial Action task force) and IMF have expressed their serious concern about this issue, there are certain sets of cryptocurrency that are based on very private blockchains wherein one cannot identify the nation from which such virtual currency is operating and there are cases investigated globally wherein there has been a direct link between financing illegal and terror activities through crypto exchanges. To tackle this scenario, the government has to introduce regulatory regimes not on the cryptocurrency but crypto service providers.”
On the point of cryptocurrency being a very lucrative investment avenue Mr. Batra says, “investment in government bonds and securities, SEBI controlled mutual funds, financial securities might take a hit as people will not take risk in investing smaller companies and thus, they will either invest in blue chip companies or in cryptos”. Thus, cryptocurrency in India has now become a major factor in the financial as well as the economic realm and now what is needed is a comprehensive regulatory framework which ensures investor protection as well as market stability of crypto. In the budget session scheduled to start from 30th January; the Union Budget will be presented on February 1st, the government is expected to come up with a law on cryptocurrency, it would be very interesting to see how the law is formulated.
Indian Startups raise from $11.5 billion to $42 billion in 2022
India is the third largest unicorn hub with 90 unicorns, USA being first with 487 and China second with 301.
Akankshya Mukherjee, Mumbai Uncensored, 14TH January 2022 :
A report from the Orios Venture Partners says that Indian Startups have grown from $11.5 billion to $42 billion in 2021. ‘The Indian Tech Unicorn Report 2021’ was the report titled which says that India saw 46 unicorns, companies with $1 billion worth in 2021. It doubled to 90 unicorns.
According to the repot, they included Cred, Meesho, ShareChat, MPL, Grofers which is not Blinkit, Nazara, Spinny, Mamaearth, upGrad, GlobalBees, Acko, and others included. With around 6,00,00 startups, India is the third largest startup ecosystem in the world. These starts generate employment on a larger scale and also develop innovative technologies and solutions. One out of the 13 startups were born in India.
As per reports, Bengaluru is the city with maximum unicorns. E-commerce, Flipkart and Software as a Service (SaaS) have the maximum number of unicorns while Crypto, Gaming, D2C, ed-tech, health-tech have been closed. Delhi being the next with 29 and Mumbai with 16. Also emerging startup-based cities in India are Pune, Jaipur, Hyderabad, and Chennai.
Flipkart is the most valued unicorn, it raised from $3.6 billion to $37.6 billion in July 2021, Mensa Brands is the fastest to turn unicorn, it took only 6 months from May 2021 to November 2021 to raise the first $50 billion.
The report also says that India has 4 decacorns, companies with less than $10 billion and above value such as Flipkart, Byju’s, Oyo Rooms and Paytm. 2021 has setup a landmark year for Indian startups. In total 11 startups, out of which 8 are unicorns, raised around $7.16 billion with public offerings. One96 Communication, Paytm, raised India’s largest ever IPO of Rs.18,300 crore which is about $2.46 billion. Zomato has the highest market capitalization of $14.8 billion, followed by Nykaa with $13.5 billion and Freshworks with $6.9 billion the report further adds.
It had been an exciting, tremendous and promising year for tech startups due to the economic turndown in the first half. According to the measuring scale for the ecosystem, the report clears that validation of value creation has been achieved for both IPO and unicorns through technological innovation, Mr Rehan Yar Khan, Managing Partner says at Orios Venture Partners.
The report also notes 20% of the Unicorn Founders are non-engineers, 2/3rd of the Indian unicorns has been founders of one or more IIMs, ISB and IITs. Also highlighted, that about 13 of the Unicorn founders are female, out of which 8 have been featured in 2021: Falguni Nayar- Nykaa, Gazal Kalra- Rivigo, Ruchi Kalra- OfBusiness, Divya Gokulnath- Byju’s, Ghazal Alagh- MamaEarth, and Saritha Katikaneni- Zenoti and others.
“Writ Petition By Borrowers Challenging SARFAESI Proceedings Initiated By Private Banks/ARCs Not Maintainable”: Supreme Court
Bhuvana Iyer, Mumbai Uncensored, 13th January 2022 :
The Supreme Court Wednesday said borrowers, aggrieved by proceedings initiated under the SARFAESI ACT by the bank or the assets reconstruction company (ARC), have to avail the remedy under this law and no writ petition would be maintainable.
The apex court held this while vacating the order passed by the Karnataka High Court which had directed maintenance of status quo with regard to possession of mortgaged properties subject to the borrowers making a payment of Rs 1 crore with the ARC concerned.
The High Court of Karnataka entertained writ petitions under Article 226 of the Constitution of India filed by borrowers against an Assets Reconstructing Company and passed an interim order directing for maintaining status quo with regard to SARFAESI action (possession of the secured assets). Challenging this, the Assets Reconstructing Company (ARC) preferred appeals before the Apex Court.
A bench of Justices M R Shah and B V Nagarathna, while referring to an earlier judgement delivered by the top court, opined that filing of writ petitions by the borrowers before the high court under Article 226 of the Constitution in the case was an “abuse of process” of the court.
The apex court delivered its judgement on the pleas filed by the ARC challenging the order passed by the high court, which had entertained the writ petition and passed interim order directing for maintaining status quo with regard to the proposed action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (SARFAESI) 2002.
The bench said the high court orders directing to maintain status quo with respect to possession of secured properties on payment of Rs three crore in all is “absolutely unjustifiable” as the dues are to the extent of approximately Rs 117 crores.
“Filing of the writ petition by the borrowers before the high court is nothing but an abuse of process of court. It appears that the high court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons”, it said.
“Even otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under section 13(4) of the SARFAESI Act can be said to be not maintainable”, the apex court noted.
It said the secured creditor or its assignor have a right to recover the amount due and payable to it from borrowers.
“The stay granted by the high court would have a serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the high court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters”, the bench said, adding, “In these circumstances, the proceedings before the high court deserve to be dismissed.”
The bench said an ARC cannot be said to be performing public functions which are normally expected to be performed by the state authorities.
“During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the state authorities”, it noted.
The apex court, while allowing the appeals, vacated the interim order of August 2015, which was further extended by the orders passed in February 2017 and March 2018.
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