Cross Border Mergers and Acquisitions

Foreword 1 Meaning of Mergers and Acquisitions The Matrix of the Global Economy Types of Mergers and Acquisitions Meaning of Cross-Border Mergers and Acquisitions (CBMA) History of the CBMA in India The CBMA and RBI Mandatory Prior Approval Central Government Responsibility of Framing of Rules in Consultation with the RBI Approval by the National Company Law Tribunal (NCLT) Permitted Jurisdiction for an Outbound Merger Penalty Types of CBMAs The Magnitude of CBMAs The CBMA and Competition Law in India The CBMA and Indian Tax Reforms The CBMA and Financial Sector CBMA and the Legal Provisions in India Rules and Regulations The CBMA and Indian Experience in Implementation Indian Experience The FDA and Emerging Markets The Case of India Economic Policy Reforms and the CBMA Major Legal Reforms of the CBMA in India Demonetisation and the CBMA Impact of Demonetisation The CBMA and Growth in Business The CBMA and Jan Dhan Accounts People’s Inclusiveness and Economic Reforms Finance Banking Governance Reforms IT Act and the CBMA The CBMA and FEMA Issuance of Shares in the CBMA The Framework to the IBC Process—Opportunities Start-ups and the CBMA Kaizen and the CBMA The CBMA and Domestic Experience of Learning Importance The CBMA and Prevention of Corruption Act, 1988 and Foreign Direct Investment Rules The CBMA and SEBI SEBI and the CBMA Motives for the CBMA CBMA: Culture and Corporate Governance The CBMA and Emerging Countries The CBMA and Specific Types of Mergers CBMA and the Competition Law, 2002 CBMA and the Stamp Duty Act CBMA and the Judicial Infrastructure CBMA and the USA Securities and Exchange Commission FTC (The Federal Trade Commission) The CBMA and USA Tax Reforms The CBMA and Tax Reforms in the USA, CFC, TIPRA Controlled Foreign Corporation (CFC) FIRPTA, 1980 and THA-2015 Internal Revenue Service (IRS) CBMA and Legal Due Diligence The Doctrine of Successor Liability and Department of Justice, USA CBMA and Legal Due Diligence in Antitrust/Competition Matters The Sarbanes–Oxley Act, 2002 The Dodd-Frank Act National Security in USA and CBMAs CIFUS and the CBMA Clayton and the HSR Acts and Amendments Specific Examples Comparison between the USA and India International Law CBMA and BRICS (Brazil, Russia, India, China and South Africa) CBMA and International Trade Indices and Ratios CBMA Emerging Economies, India and BRICS CBMA in Emerging Economies and Developed Economies LDC and EM in the CBMA Environment Emerging Opportunities and CBMA Comparative CBMA in Various States of the USA Upheavals in Global Economy CBMA and Cyber Business Conclusion 2 Cross-Border Mergers and Acquisitions: Statutes, Regulations, Rulings, Legislations and Analysis Introduction Culture and the CBMA CBMAs CBMAs: Ease of Doing Business Ease of Doing Business Index (EDBI) Solvency and Ongoing Concern IBC (The Insolvency and Bankruptcy Code) Cross-Border Insolvency; India and the USA Pre-Packs The Pre-Pack in the USA CBMAs and GST CBMAs and Real Estate Regulation Act (RERA) Impact of RERA on the Functioning of Real Estate Developers and Other Stakeholders CBMAs, RERA Priorities Present, and Future Amendments to PC Act, 1988 and FDI Rules The CBMA and Insider Trading The CBMA and Hostile Takeover The CBMA and Warranties The CBMA and Industrial Dispute Act and Essential Acts The CBMA, Specific Relief Act, and Corruption Corruption and IBC 2016 The CBMA and FDI Gaps in the CBMA Domestic and International Learning Experience Purchase and Sales and CBMAs CBMAs and Influencing Factors Enabling Factors of the CBMA Foreign Investors Motives for the CBMA The Benefits of the CBMA Challenges and the CBMA Synergy—CBMA Corporate Governance The CBMA Culture Governance and Corporate Governance Employee Attrition and the CBMA Comparative Factors, International versus Emerging Countries, and the CBMA Implementation in Developed Countries—CBMA Emerging Markets and the CBMA Example of the CBMA in Intra-emerging Developing Countries The CBMA and Specific Types of Mergers Fraud and the CBMA Insider Trading Provision of Section 195 of Companies Act, 2013 Competition Law and the CBMA Provisions and Implementation of the Stamp Duty Act (1899) Judicial Review Innovation and the CBMA Integration and the CBMA Technology and the CBMA Research and the CBMA The Effect of Synergy Culture and CBMAs The CBMA and Corruption Lawyers and the CBMA Reasons for Failure of the CBMA 3 CBMA, Competition Law, Antitrust and Demerger Introduction Competition, Antitrust and the CBMA The CBMA and Antitrust Laws The CBMA and US Antitrust Experience Case Study Antitrust Matters and Global Enforcement Guidelines Antitrust Litigation in the United States Frivolous, Bad Faith and Sham Commercial Litigation and CBMA Competition Policy and CBMA in India Competition Commission of India, Recent Developments Coordination among Various Regulators Competition Act, Competition Commission, Mergers, Amalgamation Enforcement, Suggestions Recent Experience in CBMA and Ease of Doing Business Index Gaps, Tribunals, Scope for Correction The Concept of Demergers in India and the USA Legislative Initiatives in India and Jurisdiction of Ministry of Corporate Affairs Ministry for Corporate Affairs, Government of India Inbound Mergers Out Bound Mergers Companies Compromises and Agreement or Amalgamation Rules, 2016 Bilateral Agreements and CBMA Nokia’s Case Stamp Duty and CBMA Stamp Duty Act and Its Implications on CBMA Stamp Duty Law in India-Legislative Provisions Maharashtra Stamp Act, 1958 Karnataka Stamp Act Controversy Li Taka Pharmaceuticals vs State of Maharashtra (1997) Hindustan Lever vs State of Maharashtra (2004) Delhi Towers Ltd vs GNCT of Delhi (2009) Delhi Towers Ltd vs GNCT of Delhi (2009) Specific Relief Act, 1963: The Amendment Bill, 2017 Implications on Business Transactions and CBMA Specific Relief Act, 1963 The Implications of the Amendments to the Specific Relief Act, 1963 (SRA, 1963) The Proposed Changes General Rule, Specific Performance and Changes Discretion Given to Courts and Committees Rights of Third Parties Separate Class for Public Contracts Implications Effects of the Specific Relief (Amendment) Bill, 2017 on the Law of Remedies for Breach of Contract Limited Liability Act, 2008 and Its Implications on CBMA LLP Act in India Benefits CBMA and CAG Corruption Transparency Issues in Cross-Border Mergers and Acquisitions, the USA and India Corruption FCPA in the USA Example of Major Cases Enforcement in the USA Control Framework and Structures Compliance Programmes Scope of Improvement Vicarious Liability/Responsibility and CBMA Anti-corruption due Diligence and Critical Examples Effectiveness of FCPA Implementation Critical Examples of Anti-corruption Prosecution in CBMA Transparency and Evaluation of Indian CBMAs Conclusion 4 New Legal Initiatives by India in CBMA Environment Introduction Money Laundering and CBMA SFIO and the CBMA The Importance of Credit in the CBMA SARFAESI and the CBMA The CBMA and Banking Reforms The CBMA and Banking Sector Reforms RBI Reforms and the CBMA Tax Havens and the CBMA Banking Sector and the CBMA Banking and New Initiatives Stamp Act and the CBMA Latest Developments Improvement in Ease of Doing Business Index Efforts for Modifications of Law Conclusions 5 COVID and the CBMA The Impact of COVID-19 Pandemic Crisis on Mergers and Acquisitions COVID-19 Pandemic and the CBMA Trends Logistics, Transportation, Supply Chain Management and COVID-19 Pandemic Government Regulators Scope for Increases in FDI and FPI through CBMA during COVID- 19 Pandemic Travel and Tourism Regulator Dilemma COVID-19 Pandemic and the Changes in the Structure of Business in the Context of the CBMA Investment Funds and SEBI Letters of Intent Non-Uniform Impact of the COVID-19 Pandemic The MAE/MAC Impact on the CBMA vs. COVID-19 Pandemic The Strategic Outlook of the Global Economy Due to the COVID-19 Pandemic Resilience and COVID-19 Pandemic Flattening of the Pandemic Graph Lockdown and COVID-19 Pandemic Impact of COVID-19 Pandemic on International Business Law Accountancy Issues Accounting-Related Issues Long-term Stability vs. Short-term Crisis The Response of Major Centres and Industrial Sectors Prevention is Better than Perishing Anticipation Is Better than Precipitation International Rules on the CBMA Restructuring RCEP and the CBMA COVID-19 Pandemic, the CBMA and Corporate Fraud Risks and Threats to the CBMA Mergers and Acquisitions and Distressed Assets Protective Measures and Impact of COVID-19 Pandemic Law Business Strategy, the CBMA and COVID-19 Pandemic Impact Economy and Cross-Border Mergers and Acquisitions Litigation and Cross-Border Mergers and Acquisitions Due Diligence and Emerging Technology Legal Implications and Labour Law Impact, Short- and Long-Term of COVID-19 Pandemic on the CBMA Legal Implications of Failed Negotiations on Price Front Revenue and Solvency Issues Date-line Compliance Legal Position of Merger Law and the Changes in the USA Regulatory Law in the USA Pandemic COVID-19 and Lessons Attempts to Amend the Merger Law in the USA Work from Home and Quarantine Care and COVID-19 Pandemic Global Economic Distress and COVID-19 Pandemic Business during COVID Era Innovations in Administration COVID-19 Pandemic and Govt. of India’s Response Opportunistic and Predatory Takeovers Effects of Timelines and Antitrust Review Mechanism by the State T-Mobile Sprint Case Introduction The Verdict of DOC, the USA Conclusions of Law FTC and COVID-19 Pandemic Employee Attrition and Precautions in the CBMA Environment due to COVID-19 Pandemic Post-COVID-19 Pandemic Strategies in the CBMA Proper Due Diligence Evaluation of Business Worth in the Post-COVID-19 Pandemic Post-COVID-19 Pandemic Regulatory Aspects by Government and Autonomous Agencies Compliance to Legal Provisions and Documentation IBC, CBMA, COVID-19 Pandemic, India and the USA Insolvency and Bankruptcy Code and Its Effectiveness Resolving Insolvency Banks, Non-Performing Assets, Insolvency and Bankruptcy Code NPA and IBC Non-Performing Assets IBC vs Insolvency Proceedings in the USA Timelines and IBC The Similarity between IBC and USBC International Opinion about IBC Effect of IBC in India Banker’s View on IBC The US Bankruptcy Code, 1978 Comparison of Bankruptcy Regulations between India and the USA Post-Bankruptcy and Reconstruction Composition of Creditors Committee and the Law Historical Evolution of Bankruptcy Law in the USA and India in the Context of the CBMA Impact of Current Pandemic Wave-II in India 6 Pandemics, Business Response, Law and the CBMA Supply Chain Logistics and COVID-19 Pandemic Insurance and COVID-19 Pandemic Case Study of Start-up and Acquisition during COVID-19 Pandemic Era in India Case Study Example of the Law Enforcement in India as the Cause of Ease of Doing Business in India New Technology Banking Reforms and COVID-19 Pandemic Industrial Labour Reforms and Ease of Doing Business Index Legal Innovation Online Dispute Resolution and Ease of Doing Business Digitalisation and Cross-Border Mergers and Acquisitions Fraud Prevention Whistle blower Protection and Rule of Law as a Tool for Ease of Doing Business in CBMA Environment Ultimate Suggestions COVID-19 Pandemic and Cybersecurity and the CBMA Cybersecurity, CBMA, and DSCI National Company Law Tribunal COVID-19 Pandemic and Resolution for Liquidation NCLT, COVID-19 and New Electronic Initiatives 7 Fairness in Acts and Activity Competition Commission of India IBBI Initiatives and Accountability The Federal Trade Commission of the USA and Its Performance Snapshot for the Year 2019 Security Exchanges Commission and Mergers Acquisitions Joint Venture Guidelines, an Update in the USA FDI and Its Links with Foreign Trade Growth in India Banking Sector Reforms and the CBMA Start-Ups and New Technologies Suggestions The Non-Last Word 8 Recent Reforms in Law in India CBMA and UNICORNS One-Person Company Framework (OPC) MCA 21 Version 3.0 NCLT Framework Strengthening Foreign Direct Investment in Insurance Companies Securities Market Code Exemption of Stamp Duty in Government Sale Transactions Mergers—Acquisitions Vis-à-vis Budget 2021–2022 Latest Developments (till June 24, 2021) Prevention of Scams/Frauds in CBMAs Role of NFRA (India), PCAOB (USA) Comparative Infrastructure in the USA and Lessons to Be Learned PCAOB Cross-Border Mergers and Acquisitions and Jurisdiction United States and the Doctrine Effect 9 Kaizen for Global Excellence Recent Examples of Implementation of Legal Provisions in India Post-COVID Pandemic Changes, Threats and Opportunities IBBI Regulatory Framework Changed Mandate Evaluation of Initiatives and Implications for Further Action Suspending a Tiny Part of IBC Lessons of the Pandemic—2nd Annum in the Year 2021 Role of AI (Artificial Intelligence) and ML (Machine Learning) in the Corporate Sector Exposure of New Sectors to Competition and Predation The Dangers of Living with Obsolescence Disruptions, Hacking, Cyber Threats and Fraud Cost of Repetition and the Question of Legitimacy and Intention of Enforcement Kaizen in the Economy, Law and Integration of Technologies vs Increasing Redundancy of Differentials Current Reforms in India Non-Performing Assets and the Banking Law IBC, IBBA and Specific Law for the Prevention of Insolvency The Role of Enforcement Lobbies, Pressure Groups, Publicity and Public Interest Litigation Policy Indexes of Governance—Ease of Doing Business, Arbitration, Redressal of Disputes, ADRs Regulatory Authorities and Enforcement Credibility of the State through Performance of Government Seamless Connectivity from Military, Medicine and Management (M3) for Diagnosis, Delivery and Diligence (D3) Law as a Link from the Past, through Present for Future and Perspectives of Law Law as a Fair Elixir of Tri Virtues—Equality, Freedom and Justice Corporate Justice, Civil Justice, Criminal Justice and Governance Global Trade, Export Import 2021 and International Trade in Goods and Services in India Domestic Trade Policy Financial Services Suppliers of Financial Services Must Comply with the Requirements Set Out in the Relevant Legislation Banking Securities Insurance DIPP and FDI Index