India Business Law Journal –  April 2020

A formative moment

Time to rethink priorities

Even as the global pandemic wrecks lives and livelihoods, it is triggering timely introspection on various issues, including how we do business and communicate with each other. Added to this is the ongoing discussion on why some countries have been more successful than others in combating the virus.

There is little doubt that it is moments such as these that reveal fault lines and deficiencies within society. Dismissed as mere blemishes during good times, it is surely these inconsistencies that make the difference between success and failure when the going gets tough.

While many will be rooting for a return to business as usual, it will surely be a missed opportunity if we cannot use the current momentum to effect change to the status quo. This may be the time for lofty goals such as a recalibration of priorities to ensure a better trickle-down of wealth, so as to reduce income and other inequalities that plague many economies. Whether we can do so will depend ultimately on our own inherent ability and willingness to change.

For now, however, the priority is on ensuring a steady hand on the tiller while governments look to combat the pandemic. This process has included the unveiling of stimulus packages and relief measures, some more effective than others. In this month’s Cover story we take stock of what the Indian government is doing to slow the free fall. Many of the measures unveiled see the government offering flexibility with statutory and regulatory compliance requirements and deadlines, while others see it shielding areas of the economy that had become vulnerable. Reactions vary and optimism is in short supply.

Referring to measures put in place to give companies respite in filing deadlines applicable to the registrar of companies, Arjun Anand at Singhania & Co warns they “are not enough to sustain the economy should the crisis continue for longer than anticipated”. As for a moratorium being provided on all outstanding term loans and working capital facilities, confusion triggered by the wording of the central bank’s notification has resulted in a less than ideal situation. The devil clearly lies in the detail, and only time will tell if the efforts will be sufficient to steady the economy.

In Home and safe? we turn the spotlight onto the almost inevitable cybersecurity risks posed by working from home. While providing insights into the current threats companies face, and the underlying sources of the threat, our coverage provides an analysis of managing the risks. This includes risks encountered as a result of staff using remote data centres, which can be critical as attackers attempt to piggyback on remote access to systems and information.

Is there a silver lining to the current crisis? Writing in Vantage point, Puneet Gupta and Amit Wadhwa of Max Life Insurance, believe there is and say it is the greater adoption of e-contracts that is proving vital for business continuity. While COVID-19 has triggered a lockdown and an inability to carry out business as usual, it has also produced the necessary impetus to the legal fraternity and companies exploring the digital route, not just for business continuity, but for the convenience of record keeping and ease of access.

This month’s What’s the deal? provides insights into how the courts may be expected to respond to what will surely be a deluge of disputes once COVID-19 is behind us. While the relatively simpler cases will be ones where the contract in question contains a force majeure clause that would suspend the obligation to perform, the more challenging cases will be those that assert that the pandemic has made performance impossible, and therefore made the contract void.

Indian courts have typically not accepted this more challenging position, but this may change given the interconnectedness of world markets and the global reach of the pandemic. Be that as it may, this is an area that will provide interesting developments for some time to come.

This month’s Intelligence report reveals the winners of India Business Law Journal’s 2020 Indian Law Firm Awards. The challenges and opportunities of the past 12 months, compounded by the global pandemic, have once again driven home the need for astute legal advice. Even as lawyers have got in on complex work relating to the more stringent legal and regulatory environment, the downward pressure on fees has continued. Yet cutting edge transactions have happened, and private practice lawyers have many achievements to boast about. To find out which law firms finished the year on top, our editorial team sought the opinions of in-house counsel and other observers of India’s legal profession, both in India and around the world.

For the second year running, Shardul Amarchand Mangaldas & Co (SAM) wins the top award of Law Firm of the Year. Whether it is soft data gathered through the year, or hard data from our nomination scores, there is little doubt that SAM currently has the most sought-after teams of lawyers. This is a remarkable feat for the firm, yet not altogether surprising, given the credentials of the firm’s founders, managing partner Pallavi Shroff and executive chairman Shardul Shroff.