LKS Corporate Amicus, February 2024

Article

Decoding Fiduciaries and Processors: The DPDPA lens

The article dives deep into the understanding of certain key actors engaged in the processing of personal data – Data Fiduciaries and Data Processors. Observing that while Fiduciaries, by their nature, are expected to exercise decisional control over the purposes and means of processing, and Processors act on the former’s instructions, the article outline various complex situations where the roles blur. According to the authors (Sameer Avasarala and Bhavana Kulluru), the Data Protection Board to be constituted under the Digital Personal Data Protection Act, 2023 may provide more clarity on the determination of Fiduciary and Processors, and whether a non-compliant Processor which exercises decisional control over processing is likely to be considered a Fiduciary. They in this regard note that while this may be contrary to the conscious removal of Processor liability under various drafts of the law, the approach to be adopted by the Government and/or the DPB may provide further clarity in the implementation stages.

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Notifications and Circulars

• Prepaid Payment Instruments for making payments across various public transport systems – RBI amends Master Direction
• Clearing Corporation of India Limited included as a Financial Information Provider under Account Aggregator Framework
• Indian Banks on India International Bullion Exchange IFSC
• Gold imports through IIBX by Tariff Rate Quota holders under the India-UAE Comprehensive Economic Partnership Agreement
• Liquidator to deposit claims to unclaimed dividends/undistributed proceeds of stakeholders to the IBBI
• SEBI issues guidelines on returning and resubmission of draft offer documents submitted by issuers and lead managers under the ICDR Regulations
• SEBI issues circular on revised pricing methodology for institutional placements of privately placed Infrastructure Investment Trust (‘InvIT’)

Ratio decidendi

• Award passed by Micro Small Enterprise Facilitation Council cannot be challenged in a writ petition under Article 226 or 227 – Delhi High Court
• Arbitration agreement stipulating multiple choices of seat of arbitration does not make the arbitration clause void – Delhi High Court
• Disbursal of debt amount directly to Corporate Debtor is not mandatory to be considered as a Financial Debt under IBC Section 5(8) – NCLAT
• Corporate Debtor who benefits from any loan disbursed in contravention of Section 186 of Companies Act, 2013 by the Financial Creditor, cannot deny liability to repay such loan – NCLT Kolkata
• Regardless of prior attachment order under PMLA, tainted properties of the Corporate Debtor would always be available to fulfil objectives of IBC – NCLT Kolkata
• Directors of company cannot be parties to arbitration against the company – Delhi High Court

News Nuggets

• Visa and Mastercard halt business payments via commercial cards pursuant to RBI directions
• SEBI looking to increase scrutiny on entities raising capital through the IPO route for purpose of repayment of debts
• Budget 2024-25 outlines timely funds, technology, and training for MSMEs
• Union Budget 2024-25 provides a big push to the semi-conductor and electronics manufacturing sectors
• Competition Commission of India approves three major deals
• SEBI provides relief to high-risk FPIs

Read the full newsletter here - LKS Corporate Amicus, February 2024 (Complete)

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