Managing Regulatory Litigation – Strategies and Precautions

 

FRIDAY, FEBRUARY 14, 2014, 1730 HRS TO 2030 HRS (IST)

THE WESTIN GURGAON, NEW DELHI, MG RD, HERITAGE CITY, SECTOR 25, GURGAON, HARYANA 122002, INDIA

INTRODUCTION

Regulatory supervision of economic behavior has increased manifold due to new laws governing information technology and media, foreign exchange, competition, environment, drugs and cosmetics etc. Litigation with respect to regulatory issues is unlike any other litigation and tends to be technical or based on policy and seldom purely on law. Courts have recognized that specialized tribunals are better equipped to adjudicate such technical disputes and have generally refrained from interfering in disputes related to specialized laws. It is therefore important for a company to be aware of the options available at their end and an appropriate means to address the same. 

Nishith Desai Associates brings its rich experience in regulatory advisory services and regulatory litigation in helping companies respond to this focused area of litigation. This session will be of particular benefit to companies engaged with various / multiple regulators ranging from foreign exchange to environmental laws.

Focus Area

The transaction

Companies must ensure regulatory compliance at the stage of the transaction. Effective steps must be taken to justify from commercial terms why a transaction was executed in a particular manner.

The notice

The Show Cause Notice is the trigger for post facto regulatory compliance and therefore it is important to understand commercial and legal issues raised in the Show Cause Notice.

The reply

The first response sets the tone of the interaction between the regulatory authority and the company. It is imperative that the reply is carefully drafted after appropriate legal advice.

General strategy

Litigating against regulatory authorities is costly and collateral damage from litigation outweighs notional benefits and therefore all options must be considered before litigating against regulators.

Roles of individuals

Sometimes Show Cause Notices are addressed to an individual by designation, such as the managing director or the CEO. Criminal action too cannot be ruled out in extreme circumstances.

Disclosures and Investor rights

In certain cases it would be appropriate to ascertain disclosure of information relating to regulatory litigation and contingent liabilities before investing in companies in India.

Speakers

PRATIBHA JAIN

Partner & Head – Delhi Office

Nishith Desai Associates

Pratibha Jain is a Partner and also the Head of the Delhi office of Nishith Desai Associates. Ms. Jain brings with her a breadth of international and Indian experience having worked in New York, Tokyo, Hong Kong and Mumbai. She has previously worked as a Vice President and Counsel for Goldman Sachs in India. She has earlier worked as an associate with Sullivan & Cromwell LLP in their New York, Tokyo and Hong Kong offices and with Skadden Arps Slate Meagher and Flom LLP in their Hong Kong office.

Pratibha's educational qualifications include B.A (Economics) Hons. And LL.B. degree from Delhi University, a Bachelor of Civil Law degree from the University of Oxford, where she was a St. Catherine's College Bursary Holder; and a LL.M. degree from the Harvard Law School, where she was a Samuel Morse Lane Fellow.

Pratibha has extensive experience in US and Indian securities laws. Her areas of focus include private equity, mergers and acquisitions, corporate and regulatory advisory and public policy matters.

Shinoj Koshy

Head of Corporate

Nishith Desai Associates

Shinoj Koshy is a dual-qualified lawyer (India and the UK) with extensive experience in cross-border transactions.

He received a B.A. LL.B. (Hons.) from the National Law School of India and was awarded the Justice V. G. Ramachandran Gold Medal for Excellence. He has also completed his studies in International Commercial Negotiation from Stanford Law School, California, USA.

He started his legal career with a clerkship at the Supreme Court of India working with Mr. Justice N. Santosh Hegde. In 2005, he joined Linklaters LLP and worked at its offices in London and Dubai. From 2007 to 2013, he worked for Cleary Gottlieb Steen & Hamilton LLP in London.

Shinoj’s practice focuses on corporate transactions, particularly joint ventures, mergers and acquisitions (in telecom, infrastructure and energy) and commercial dispute resolution. He has also associated with industry associations like FICCI and Invest India and advises them on ways to promote FDI in key sectors like infrastructure, manufacturing and retail.

M. S. ANANTH

Senior Member, International Litigation and Dispute Resolution

Nishith Desai Associates

M. S. Ananth is a senior member of the Int'l Litigation & Dispute Resolution Practice at Nishith Desai Associates and has worked extensively on issues relating to litigation and pre-litigation strategies in respect of commercial and taxation laws.

Prior to joining Nishith Desai Associates, he worked with Soli J. Sorabjee, Former Attorney – General for India, for 5 years where he assisted Mr. Sorabjee in constitutional, taxation and commercial law cases. He also independently argued cases relating to commercial and taxation laws in the High Court of Delhi and Supreme Court of India.

He is a graduate from University of Delhi (2005) and completed his LL.M. from Georgetown University Law Center, Washington D.C. in May 2011. He worked as a Research Assistant to Joshua Meltzer, Scholar at Brookings Institution, Washington D.C. and assisted him in international trade law and economics.

PAYEL CHATTERJEE

Senior Member, International Litigation and Dispute Resolution

Nishith Desai Associates

Payel Chatterjee is a senior member of the International Litigation and Dispute Resolution Practice Group at the firm. She has extensive experience in commercial and regulatory litigation both at Delhi and Bombay and has extensive experience in various sectors and industries including corporate, intellectual property, telecom, power. She has been involved in competition and securities litigation before Competition Commission of India, Securities Tribunal and Supreme Court.

She is also the winner of Best Paper (2012), awarded by Inter-Pacific Bar Association. Payel graduated from Gujarat National Law University, Gandhinagar in 2009 and holds an Honors degree in B.Com LLB (Hons.)

ANKITA SRIVASTAVA

Senior member, International Tax and Regulatory

Nishith Desai Associates

Ankita Srivastava is a senior member of Nishith Desai Associates. She has graduated from the National Law Institute University, Bhopal (2007) and has also completed her LL.M in International Taxation from the Vienna University of Economics and Business Vienna, Austria (2010). She is a member of the International Tax and Social Sector Practice at the firm.

She has extensive experience in tax structuring for onshore and offshore investments and has been involved in cross-borders investments and M&As. She also focuses on structuring up of social business ventures and corporate social responsibility in India.

Flow of the session

1730 – 1800 HRS:

Registration

1800 – 1900 HRS:

Precautions in Managing Regulatory Litigation

1800 – 1845 HRS:

The Transaction, Show Cause Notice & Reply & Presentation by Panel of speakers from Nishith Desai Associates

1845 – 1900 HRS:

Interaction with audience

1900 – 1915 HRS:

Break

1915 – 1945 HRS:

Strategies to Manage Regulatory Litigation

1945 – 1950 HRS:

Role of Key Management Individuals & Presentation by Panel of speakers from Nishith Desai Associates

1950 HRS ONWARDS:

Cocktails Snacks & Dinner

Partners

INDIAN CORPORATE COUNSEL ASSOCIATION (ICCA)

Role of In-house Counsels in Corporate sector in India has undergone a sea change in the last two decades. With the commencement of liberalization and globalization in early 1990s and with number of regulatory compliances increasing, role and scope of In-house Counsels in Corporate Sector has increased substantially. On the one hand they are valuable members of management teams, and on the other, they are also conscience keepers of their organizations, responsible for advising on compliance issues of regulations and statutes. This role has become increasingly sophisticated, although with liberalization, some restrictions have been removed while regulations have been made more stringent. The evolution of the regulatory framework has not yet stabilized in India. Against this backdrop, a group of In-house Counsels has decided to constitute a Special Forum to be known as the Indian Corporate Counsel Association(ICCA). 

ICCA is a platform of all legal professionals from the various sectors and includes In-house Counsels / Corporate Law Officers and Law Officers of Private Sector and State / Central PSUs. The sectors represented in the forum include private and public sector organizations in industrial sectors like Steel, Energy, Minerals, Heavy Engineering & Manufacturing, Media & Broadcasting and also Banking & Financial Sectors, Real Estate & Infrastructure Development, International Financial Agencies, Service Providers, etc. Select Law Firms would also be invited to participate as Patron Members with no voting rights