VOL III                                                      ISSUE NO. 19                                May 08, 2018          

In This Issue

India: Plastic Waste Management Rules Amended, Brand Owners to obtain registration

Ministry-of-EnvironmentRecently, the Ministry of Environment, Forest and Climate Change have amended the Plastic Waste Management Rules mandating registered brand owners to obtain registration from the Government.

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India: Amendments in Insolvency Resolution and Liquidation Process for Corporate Persons

cbdtIn order to improve upon the insolvency resolution and liquidation process, the IBBI has notified amendments to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016.  

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India: Removal of Reappointed Independent Directors

cbdtAn independent director who has been re-appointed can be removed by the company only after passing a special resolution and providing the independent director reasonable opportunity of being heard.

 

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India: Food Safety and Standards (Import) First Amendment Regulations, 2018

The Food Safety and Standards Authority of India, which is the apex body for regulating food-based trade in the country had released the Food Safety and Standards (Import) Regulations, in March 2017 with a view to monitor compliances and regulatory mechanisms required for importing food products into India. In the furtherance to the said objectives, the FSSAI amended the regulations by notifying the Food Safety and Standards (Import) First Amendment Regulations, 2018.

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Sponsorship in Sports

b-naturalWith a view to prevent damage to the market value of the sponsor, it should be ensured that the sponsorship agreement with sportsperson lists out the consequences in the event of an unethical and improper conduct of the sportsperson adversely affecting the sponsor’s image.

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India: Plastic Waste Management Rules Amended, Brand Owners to obtain registration

 

Ministry-of-Environment

 

Source : www.envfor.nic.in

 

Introduction

 

Indian laws require various compliances and registrations for a business to commence. A business must first get incorporated as a registered entity (e.g.: private limited company, limited liability partnership etc.) and thereafter, obtain requisite tax registrations like GST (Goods and Service Tax), PAN (Permanent Account Number), etc. Businesses also must take care of applicable labour law compliances and social security registrations like The Payment of Gratuity Act, 1972, The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, etc. In addition to the above, there are other kinds of registrations and compliances applicable on respective industries, for instance, FSSAI license for food industries, CDSCO license for drugs and cosmetics industries. Further, to protect innovation and other related intangible assets and to set one’s business apart from competitors, businesses seek to register their intellectual property rights including trademarks, copyrights, designs, patents etc. All this while, environmental norms and regulations are also to be adhered to as required by the Government under the respective applicable laws.

 

Amongst a plethora of compliances referred above, the Government through the Ministry of State for Environment, Forest and Climate Change, has recently introduced a new environmental compliance under the Plastic Waste Management Rules, 2016. It is applicable on all registered brand owners, wherein they are mandatorily required to obtain registration under the Rules.

 

The Ministry of Environment, Forest and Climate Change has amended the Plastic Waste Management Rules, 2016 (hereinafter referred to as “Parent Rules”) and notified the Plastic Waste Management (Amendment) Rules, 2018 (hereinafter referred to as “Amendment Regulations”) on March 27, 2018. [1]

 

Registration of Producers and Brand owners

 

The Parent Rules [2] imposed obligations on producers, i.e., persons engaged in manufacture or import of plastic bags or plastic sheets, including industries or individuals using plastic sheets for packaging or wrapping commodities [3] , to obtain registration from the concerned authority. This provision has now been amended to include brand owners to obtain registration as well. Brand owners have been defined in the Parent Rules to mean a person or company who sells any commodity under a registered brand. Hence, companies or individuals selling commodities under a registered trademark will now have an additional compliance to obtain registration under the Amendment Rules.

 

 However, an ambiguity arises with respect to the definition of the term “commodity”. As commodity has been broadly defined to mean a tangible item that may be bought or sold and includes all marketable goods or wares [4] , therefore, the question arises whether all companies and individuals selling commodities under a brand or trademark are under obligation to obtain the said registration or whether the intent of the Parent Rules, i.e., to have an effective plastic waste management system, is to be interpreted to mean that companies or individuals selling commodities under a registered brand and which are using plastic for packaging such commodities are under obligation to obtain the registration. It is hoped that a clarification is given by the government in this regard.

 

Requisite Authority to obtain registration

 

The registration under the Amendment Rules is required to be obtained by the producers and brand owners from the concerned State Pollution Control Board or Pollution Control committee if they are operating in 1 or 2 States or Union Territories. In case the producer or brand owner is operating in more than 2 States or Union Territories, the registration is to be obtained by the Central Pollution Control Board.

 

Other Amendments

 

The Amendment Rules lay down the phasing out of manufacture and use of multilayered plastic which is non-recyclable or non-energy recoverable or with no alternate use. The Parent Rules laid down a broader restriction by prescribing phasing out of non- recyclable multilayered plastic. Further, the provision under the Parent Rules requiring shopkeepers and street vendors willing to provide plastic carry bags for dispensing any commodity to register with a local body has been omitted .

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[1] Available at http://envfor.nic.in/sites/default/files/PWM%20amendment%
20english%202018.pdf 
[2] Section 13 (2)

[3] Section 3(s) of the Parent Rules

[4] Section 3(b) of the Parent Rules

 

 

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India: Amendments in Insolvency Resolution and Liquidation Process for Corporate Persons

 

cbdt

 

Source: www.ibbi.gov.in

 

 

Introduction:

 

The Insolvency and Bankruptcy Board of India (hereinafter referred as ‘IBBI’) vide press release [1] dated March 28, 2018, has amended the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, and the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016.

 

A. The salient features of the amendments under the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 are discussed hereunder:

 

Identification of resolution applicants:

 

As per the amendments, the resolution professional (hereinafter referred as ‘RP’) shall identify the prospective resolution applicants on or before the 105th day from the insolvency commencement date.

 

Expenses to be incurred on or by the IRP:

 

The regulations earlier provided that expenses whether incurred on or by the interim resolution professional or the RP shall be determined by the Committee of Creditors and form part of insolvency resolution process costs.

 

The amendments state that such expenses means:

  1. the fee to be paid to the interim resolution professional;

  2. the fee to be paid to insolvency professional entity, if any; and

  3. the fee to be paid to professionals, if any, and other expenses to be incurred by the interim-RP or the RP.

Disclosure of resolution process costs:

 

As per the amendments, the interim-RP or the RP shall disclose item-wise insolvency resolution process costs in the manner prescribed by the IBBI.

 

Claims by creditor to state whether or not related party:

 

A financial creditor submitting a claim to the interim-RP will be required to declare whether or not it is a related party to the corporate debtor.

 

Requirement of affidavit for submission of claims:

 

The amendments have dispensed with the requirement of affidavit from the claimant for the submission of claims.

 

B. The salient features of the amendments under the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2018 are:

 

Selling assets:

 

Earlier regulations allow the liquidator to sell an asset on a standalone basis as well as to sell the assets in a slump sale, a set of assets collectively, or the assets in parcels.

 

The amendments have further allowed the liquidator to sell the corporate debtor as a going concern.

 

Interest on interim finance:

 

The amendments have now stated that the liquidation cost shall include interest on interim finance for a period of twelve months or for the period from the liquidation commencement date till repayment of interim finance, whichever is lower.

 

Effective date:

 

These amendment regulations were made effective from April 1st, 2018.

 

Remarks:

 

The amendments to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 have made necessary changes in the insolvency resolution and liquidation process. The amendments are expected to ensure the following:

  1. Timely identification of resolution applicants;

  2. Proper valuation of insolvency resolution process costs;

  3. Disclosure of resolution process costs in prescribed manner;

  4. Disclosure of related parties amongst creditors; and

  5. Appropriate valuation and liquidation of assets.

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[1]Available at: http://ibbi.gov.in/webadmin/pdf/press/2018/Mar/Press%20

Release%20CIRP%20March%2028%202018.pdf.

 

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India: Removal of Reappointed Independent Directors

 

cpcb

 

Source : www.mca.gov.in

 

 

Introduction

 

The Ministry of Corporate Affairs has issued the Companies (Removal of Difficulties) Order, 2018 (hereinafter referred to as the “Order”) which makes amendment in the provision for re-appointment of independent director. The Order makes amendment in section 169 of the Companies Act, 2013 and states that an independent director who has been re-appointed can be removed by the company only after passing a special resolution and providing the independent director reasonable opportunity of being heard.

 

Need for amendment in provision of re-appointment of independent director

 

The situation before passing of the Order was that an independent director who has been re-appointed could be removed by passing of ordinary resolution and not special resolution. However, may issues were raised by stakeholders with respect to this provision namely-

  • Difficulty in proper monitoring and implementation of corporate governance requirements in companies.

  • Since an independent director is re-appointed for a second term by way of special resolution, therefore such independent director should be removed by way of special resolution and ordinary resolution.

Therefore, to ensure better corporate governance in companies and to balance the powers of the board of directors of a company, the Order has been issued to provide for removal of re-appointed independent directors by way of special resolution.

 

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India: Food Safety and Standards (Import) First Amendment Regulations, 2018

cpcb

 

Source : www.fssai.gov.in

 

The Food Safety and Standards Authority of India (hereinafter known as “FSSAI”), which is the apex body for regulating food-based trade in the country had released the Food Safety and Standards (Import) Regulations (hereinafter referred to as “Regulations”), in March 2017 with a view to monitor, compliances and regulatory mechanisms required for importing food products into India. In the furtherance of the said objectives, the FSSAI amended the regulations by notifying on Food Safety and Standards (Import) First Amendment Regulations, 2018, vide notification dated February 7, 2018.

 

Through this amendment, the following changes have been introduced:

  • The food importers will now be required to register themselves with the Directorate General of Foreign Trade and possess valid Import-Export Code. (Regulation 3).

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  • The Regulations have defined ‘shelf life’ as the period between the date of manufacture and the “Best Before” or “Date of expiry” whichever is earlier as printed on the label. It is significant to note that in case of imports, a significant portion of the shelf life is exhausted by the time the product reaches India. After the amendment, the Custom Authorities shall not be clearing any article of food unless it has a valid shelf life of not less than 60%, or 3 months before expiry, whichever is less, at the time of import (Regulation 3).

  • The Regulations provide for assessment of risks which may arise with regards to the imported food products. The Regulation states, “The Food Authority may review the risks associated with articles of food imports from time to time and adopt a risk-based framework and risk-based inspection process for clearance of imported articles of food.” Thus, the Food Authorities are, amongst other things required to profile the Importer, Custom House Agents, imported product, manufacturer of the imported product, country of origin, source country of the consignment, port of entry, compliance history and any other parameters deemed fit for profiling the risk associated with the commodity. (Regulation 11).

  • In furtherance of risk minimization, which states that “the importer shall submit certificate of sanitary export from authorized agencies in exporting countries for the categories of food as may be specified by the Food Authority from time to time. (regulation 11)

You may visit our detailed article with regards to Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011, over here

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Sponsorship in Sports

sports

 

 

In the competitive world surrounding us, sports play a vital part in the overall development of the individual, varying from involvement of mental faculties and strategizing instincts to those requiring exertion of high degree of physical strength. The activities not only break the monotonous schedule but also help in the rejuvenation and entertainment of the individuals. The ambit of sports is not merely limited to being a de-stressing activity but have turned into an independent career option as well. Amongst the different means to promote and encourage sports, there lays a necessity to provide adequate support to the sportsperson. Sponsorship plays an important role whereby a company, organization or individual provides an individual or organization with funds, products or services for commercial advantage.

 

Benefits of Sponsorship Sponsorship is an arrangement that is mutually profitable both to the sportsperson and sponsor in the below stated manner:

  1. The sportsperson is able to obtain the required products and adequate training.

  2. The sportsperson can participate in the events which involve handsome amounts of consideration.

  3. It creates awareness and promotes the brand of the sponsor.

  4. It serves as a platform to launch new products/services

  5. It helps the display of the products/ services to new markets.

Consequences of breach

 

One of the essential requisites of sportsperson towards his game to is maintain the integrity of the same. In the recent times, a number of episodes have been witnessed where the sportspersons have been involved in unprofessional behavior. Owing to the said conduct, the sponsors have ended their relationship with the sportsperson. Instances of such famous episodes in this regard are stated below:

 

 

  • Personal Conduct

    Six years sponsorship agreement between renowned American golfer Tiger Woods and a multinational company ended on account of infidelity charges against him.

  • Performance Boosters

    After being diagnosed positive in the drug test indicating intake of performance enhancing drugs, the famous Russian tennis star Maria Sharapova‘s sponsorship agreement with the sports brand Nike was terminated by the company.

  • Unfair Play

    One of the major sponsors of Cricket Australia Magellan ended the said sponsorship attributable to the conspiracy by the members of the Australian cricket team which broke the rules with a clear intention to gain an unfair advantage during the third Test in South Africa. In furtherance to the said improper conduct during the game, the sporting goods company ASICS announced termination of its sponsorship with David Warner and Cameron Bancroft, the two players involved in the incident.

Obligations of the Sportsperson

 

There vests an obligation on the sportsperson to maintain the dignity of his profession. Any misconduct on his part with respect to his game or behavior not only brings him a bad name but also hampers the market value of persons sponsoring him. The sponsors should therefore be alert and agile while drafting and executing the sponsorship agreement in order to safeguard their interests. The liabilities of the sportsperson in event of any breach of his obligations under the said agreement and subsequent termination of the same should be clearly specified. The penal obligations should also be cast in event of a failure of the sportsperson to be fair and loyal towards his game and any misbehavior in public.

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