Asia Pacific

Guidelines to pass Ordinary and Special Resolution by Companies Owing to the threat posed by COVID-19

To ease the impact of disruption caused by the Coronavirus/COVID-19 pandemic and in the spirit of social distancing, the Ministry of Corporate Affairs (“MCA”), through its circular dated April 8, 2020 (“Circular”) and a subsequent clarificatory circular dated April 13, 2020 (“Clarification”), has provided specific guidelines for the companies to take all decisions which are urgent in nature and which require the approval of members of such companies, other than items of ordinary business or business where any person has a right to be heard, through the mechanism of postal ballot or e-voting, in accordance with the provisions of the Companies Act, 2013 (“CA 2013”). Given that the CA 2013 does not provide for any specific provision in relation to allowing the conduct of shareholders meetings through video conferencing (“VC”) or other audio-visual means (“OAVM”), the general provisions in relation to postal ballot or e-voting under the CA 2013 and the rules framed thereunder shall be applicable for such extraordinary general meetings (“EGMs”).

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Functioning of Courts in India during Lock-down

On April 6, 2020, Hon’ble Supreme Court of India issued directions in a matter taken up Suo moto to establish the guidelines for the effective working of the Courts in India through video conferencing during the COVID-19 lockdown. [1]

The bench of CJI SA Bobde and Justices DY Chandrachud and L Nageshwara Rao issued the following directions under Articles 142 of the Constitution of India:

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Bombay High Court: No benefit to Petitioners seeking Force Majeure owing to Covid-19 outbreak

Judgment: Standard Retail Pvt. Ltd. V/s M/s. G. S. Global Corp & Ors. with Integral Industries Pvt. Ltd. V/s M/s. G. S. Global Corp. & Ors.; Vinayaga Marine Petro Ltd. & Anr. V/s M/s. G. S. Global Corp. & Ors.; Hariyana International Pvt. Ltd. V/s M/s. Hyundai Corporation & Ors. and Prabhat Steel Traders Pvt. Ltd. V/s M/s. Hyundai Corporation & Ors. [Commercial Arbitration Petition Nos. 404, 405, 406, 407 and 408 of 2020],

Forum: Hon’ble High Court of Judicature at Bombay (“Court”)

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Compliances have taken a backseat during the ongoing lockdown due to Covid-19 pandemic. Regulatory authorities have granted several relaxations to assist businesses to cope with the unprecedented lockdown and economic distress. We discuss herein below a few relaxations granted by the Securities and Exchange Board of India and the Insurance Regulatory and Development Authority of India to ease the compliance distress of the companies.

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COVID-19 related Frequently Asked Questions (FAQs) on Corporate Social Responsibility

Taking into account the references/representations received from various stakeholders seeking clarifications on eligibility of CSR expenditure related to COVID-19 activities, a set of FAQs along with clarifications has been provided by the Ministry of Corporate Affairs (“MCA”) for better understanding of the stakeholders vide its General Circular No. 15/2020 dated 10th April 2020.

The brief overview of the clarifications issued by MCA are as follows:

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Force Majeure During the COVID-19 Crisis

Companies have asked “Does the current corona crisis constitute a (global) force majeure – act of god situation from a legal point of view?” and want the answer in a short, summary format – and the ILN has answered – 23 member jurisdictions have weighed in with concise responses to help guide your business in the current crisis.

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Compliance Tips for Medical Health APPs (Part II) – Personal Information Collection and Use

The Internet has been changing our lives at an unprecedented pace. In addition to E-shopping and food delivery, Internet medical services have become a significant part of our life. People start trying online diagnosis services when they feel sick; when they visit a doctor, they make online appointments beforehand; people also buy pharmaceuticals online as opposed to from brick and mortar pharmacies. Moreover, Internet medical services have permeated into our life, largely unnoticed. Our watches can measure our heart rate, electrocardiograph and even blood pressure, and more and more medical tests and assessments that were only available at hospitals can now be done remotely from home…… Read more…

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Extension of Realisation Period of Export Proceeds

To ease the impact of disruption caused by the Coronavirus/COVID-19 pandemic, the Reserve Bank of India (“RBI”) has provided extension of the period for realisation of the export proceeds as prescribed under the Foreign Exchange Management (Export of Goods & Services) Regulations, 2015 (“FEM Export Regulations”) read with the RBI Master Direction on Export of Goods and Services (“RBI Master Directions on Exports”).

Regulatory Framework:

The export of goods and services in India and the payments to be received for such export of goods and services are regulated by the FEM Regulations, framed under the Foreign Exchange Management Act, 1999, read with the RBI Master Directions on Exports. We discuss hereinbelow certain key provisions of the FEM Export Regulations and the RBI Master Directions on Exports:

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Possibility of Non-Payment of Lease Rent Due to COVID-19

Amidst the outbreak of novel coronavirus (“COVID-19”) and its consequential countrywide lockdown, shutting down majority of the commercial, industrial and retail activities, the much forgotten ‘Force Majeure’ clause in contracts and leases is now receiving close scrutiny. In simple terms, ‘Force Majeure’ events relieve a party from performance of its contractual obligations, without any consequential breach of the contract, provided such performance is adversely impacted by events outside the control of an affected party such as act of God, natural disaster, war, strike, lockout, epidemic, Government orders, etc.

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Relaxation Schemes for Companies and Limited Liability Partnerships

In furtherance of its previous corporate governance reliefs, the Ministry of Corporate Affairs (“MCA”) has introduced the Companies Fresh Start Scheme, 2020 (“CFS Scheme”) and amended the LLP Settlement Scheme, 2020 vide its circular dated March 30, 2020 (“LLP Modified Scheme”) to allow defaulting companies and limited liability partnerships (“LLPs”) an opportunity to file belated documents, returns etc. without charging of additional fees with respect to the delay in filing and grant immunity from prosecution with respect to such delay.

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