If the 1991 reforms globalized the Indian economy and brought vibrancy to the corporate sector, the year 2015-2016 can be said to have ushered the concept of ‘commercial justice’ that never existed in India. Prior to this, the legal system was classified between civil and criminal justice only without any concept of commercial justice which has emerged through two significant legislations- The Insolvency & Bankruptcy Code, 2016 and The Arbitration & Conciliation (Amendment) Act, 2015. These legislations are path-breaking and have far reaching implications for the Indian economy and the business world.

The Supreme Court in a short span of five years has interpreted these legislations in certain important judgements, giving certainty in the scope and application of these laws. These significant judgements of the Apex Court have been analyzed in this book.

In the regime prior to the Insolvency & Bankruptcy Code, 2016, the debtors laughed and the creditors cried, in other words, it was a debtors’ paradise and creditors’ hell. The 2016 legislation brings a paradigm shift in favour of creditors and the Apex Court has reinforced the letter and spirit of the law by its judgements as also the democracy in insolvency resolution through the Committee of Creditors (CoC). The nuances of the law have been analyzed in the book through case-law.

The Apex Court has interpreted the Arbitration & Conciliation (Amendment) Act, 2015 to bring the arbitration law in sync with the global arbitration landscape. The principles of fairness in arbitration as also the minimal interference with arbitral awards have been emphasized by the Supreme Court. Vexed questions that took decades to be decided have been settled in record time so as to give clarity to the business world.

The book simplifies and demystifies legal complexities through Supreme Court judgements, for the benefit of readers including Law students, young Corporate Lawyers, In-house Corporate Counsel, Company Secretaries and Chartered Accountants.

Advance praise for the book

“I found the book to be a valuable insight into solving complex commercial disputes through the prism of the amended Arbitration Act and the new legal tool i.e. the IBC.”

Mukul Rohatgi, SENIOR ADVOCATE &
Former Attorney General for India

“One of the silver linings to the COVID induced lockdown is the fact that many lawyers have put pen to paper and converted themselves into authors. One such additional offering by my colleague and friend – Mr. Vivek Sood, Senior Advocate, is a book, titled ‘Emergence of Commercial Justice: Insolvency & Arbitration’, and I am happy to recommend it to all practitioners of the law that deal with such subjects. It is a book that is written in a modern way endeavouring to simplify complex legal issues and will be an important ready reckoner for all those who wish to familiarize themselves with these branches of law.

I wish the Author and the Book great success.”

R. N. Karanjawala
Managing Partner,
Karanjawala & Co.

“The advent of the Insolvency and the Bankruptcy code and the unleashing of several significant amendments to the Arbitration act, heralded a new dimension to Commercial law in India. Join Vivek Sood as he takes you on an interesting journey through the important judgments in these areas. Deftly distilling their essence and by presenting them in a simple, yet an elegant style, the author chronicles the contribution of the Judiciary, on aspects that impact the nerve centre of the Nation's economy.

K.V. Vishwanathan
Senior Advocate &
Former Additional Solicitor General of India

First published in 2021

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Dedicated
To
Priti Sood
Who has stood by me in all times...

Acknowledgements

No book is an individual effort. Its team work though the author get’s most of the credit for it. This is my fourth book over the last twenty years. As before, several individuals have contributed to the creation of this book.

I must give credit to the Judges of the Supreme Court who work tirelessly hearing arguments on complex legal issues, deciding the lis between the litigants, and laying down the law for future application across the country. It’s a bundle of judicial experience, interpretative creativity, and hard work that come into play when a judgement on a significant question of law is pronounced by the Supreme Court. This book is an analysis of certain landmark judgements delivered by the Supreme Court since 2016 when the Insolvency & Bankruptcy Code, 2016 and Arbitration & Conciliation (Amendment) Act, 2015 came into force. These two statutes mark a new beginning in corporate law and the Supreme Court has put life into the two statutes by its interpretative creativity. Hence has emerged the concept of Commercial Justice in India.

My juniors and interns assisted me in the research for this book, without whose contribution the book would have taken another six months at least. Every chamber of a Senior Counsel is incomplete without hardworking juniors and interns.

My daughter Ms. Ramayni Sood, a fourth year law student at Amity Law School, Delhi worked with me tirelessly on the research and editing of the book. Without her support, the book wouldn’t have seen the light of the day.

Hansaveni Sood, my younger daughter kept motivating me to go on and on till I finished the book. My wife Priti’s encouragement and support kept up my tempo to finish the work within the time-frame I had set-up. The blessings of my parents have always been with me throughout my life. I owe my success to their sacrifices and farsighted vision apart from providing me with the best of education. Good wishes from my sisters have added value to my pursuits.

I am deeply grateful to Mr. Shardul Shroff, Executive Chairman of Shardul Amarchand Mangaldas & Co and Mr. Tushar Mehta, Solicitor General of India for carving out time to write the Forewords for my book. I am deeply grateful to Mr. Mukul Rohtagi, Senior Advocate and former Attorney General for India, Mr. Raian Karanjawala, Managing Partner of Karanjawala & Co and Mr. K.V. Vishwanathan, Senior Advocate and former Additional Solicitor General of India for penning advance praises of my work. These stalwarts have given credibility to my work.

I must also acknowledge the elegant design of the book-cover that has been made by Shilpa Agrawal. Her creative design has enhanced the look of the book.

Above all, I am grateful to Him for placing this book in my destiny.

Vivek Sood

About the author

Vivek Sood is amongst the leading Senior Counsels in India with three decades of experience in diverse areas such as Criminal laws, Commercial Disputes, Arbitration, Insolvency, Information Technology, Media laws and Constitutional law. Vivek Sood is known for arguing the most complex briefs in the High Courts, Tribunals, and the Supreme Court.

Amongst the innumerable briefs that he has argued, many have received wide media coverage and are cited as precedents. His excellence is manifested through the quality of his arguments in the Courts.

Apart from being a busy Senior Counsel, he has authored four books and is amongst the leaders of the Indian Bar who is frequently called upon to speak on legal issues of significance. Sood coined the concept of the ‘Fundamental Right to Internet’ in his book released in 2011 and the Supreme Court recognized the expression in 2019 while deciding the J&K Internet shutdown case.

Vivek Sood is a multifaceted personality. Apart from a successful law practice, he strongly believes in espousing causes that have a strong social impact, such as, appearing in important Public Interest Litigations as well as assisting the Court as Amicus Curiae in various matters and promoting DNA evidence in the criminal justice system partnering with Ogilvy (India) and Honeywell (USA).

He can be reached at vsoodsradvocate@yahoo.com.

Foreword

The author Vivek Sood has ‘devilled’ as my junior advocate several years ago. Whilst he worked with me in his formative years, now that he is a senior counsel and an established author; this fills my heart with great joy and happiness.

Writing a book is no mean task, but writing on the Insolvency and Bankruptcy Code 2016, and the Arbitration & Conciliation Act as an analyst deeply scrutinising latest judgements and complex concepts, of both these commercial hot and topical subjects is stupendous for a practising Senior Advocate.

These are very contemporaneous subjects reviving moribund old laws with modern techniques and tools. These laws are constantly evolving and are being moulded to accommodate for latest judgements from the Indian Judiciary. Vivek classifies these important legislations as “commercial justice” torch bearers. The Hon’ble Supreme Court of India, in a short span of 4 years, has declared the law of Insolvency and restructuring so as to shield it from constitutional challenges of current times. Every change in the law will of course bring new challenges to the Insolvency law.

Arbitration and conciliation has faced several situational hazards including the need for better rules and processes for appointment of independent and impartial arbitrators and the conduct rules for Arbitrators. Institutional arbitration is hugely competitive among Arbitration centres and the countries where the Centres are situated. More refined speedier justicing and processes are being introduced for demonstrating efficient delivery and competency in modern times. Laws of countries are also rapidly being amended for keeping them germane to speedy commercial dispute resolution. Vivek’s analysis of these developments and judgements in arbitration law is eloquent and incisive. The clear break from the past law is well demonstrated by his treatise.

I congratulate Vivek for having taken up both these modern laws in the domain of “commercial justice” for writing a contemporaneous book which will appeal to commercial practitioners.

I am sure that his book will be relevant to the judiciary, the practitioners and the students and I look forward to regular updates of this book.

Shardul S. Shroff
Executive Chairman
Shardul Amarchand Mangaldas & Co.