Ram Mohan M P | Indian Institute of Management, Ahmedabad (original) (raw)

Papers by Ram Mohan M P

IIMA Working Paper 2021-04-01, 2021

Insolvency determination is central to the formal insolvency and bankruptcy proceedings of a debt... more Insolvency determination is central to the formal insolvency and bankruptcy proceedings of a debtor entity. In determining whether a company is solvent or insolvent, two tests are generally used by the bankruptcy courts across all jurisdictions: the Commercial Cash Flow and the Balance Sheet test. While enacting IBC, India has moved away from the traditional dual test approach followed by Indian courts under the Indian Companies Act to specific Cash Flow test. This paper discusses conceptual basis of the two tests as evolved under insolvency laws of the United Kingdom and United States, with a view to comparatively study the nascent Indian insolvency regime. The paper conclude that irrespective of the statutorily prescribed test, over the years, courts across jurisdictions have taken recourse to both the tests to ascertain the overall commercial viability. In this lies an answer for India’s work in progress - Insolvency & Bankruptcy Code, 2016. While the cash flow test is the test specified under Indian insolvency law, the paper shows, both the tests exist for a reason and Indian regime may have to adopt international experience in applying both the tests more or less jointly within the spirit of efficient debt resolution.

NUJS Law Review, 2020

The Indian contract law continues to follow the classical contract law model under which parties ... more The Indian contract law continues to follow the classical contract law model under which parties may, in exercise of their autonomy, limit or exclude their liability for breach of contract. As long as parties have freely contracted, an exclusion clause remains effective. Because of this, parties have started drafting wide exclusion clauses, highlighting creeping unreasonableness in contracting practices. In the absence of any statutory law governing the same the only way by which a party could be relieved from the performance of an onerous contract in India is by arguing procedural unconscionability. This paper comprehensively traces the development and understanding of exclusion clauses as they have evolved under the Indian Contract law and through the adoption of common law by the courts. This being a time series study, we examine all the Indian Supreme Court and High Court decisions reported until early 2020 and find that courts have attempted to instil just- contracting by adopting ad-hoc mechanism against the unfair use of the exclusion clauses. However, uncertainty continues to prevail regarding the enforceability of unconscionable exclusion clauses. Therefore, taking a comparative approach, we argue in favour of adopting certain legislative reforms in the Indian contract law towards empowering the court to adjudicate on claims based on substantive unconscionability. A first step in this direction, specifically for consumer contracts, is the statutory recognition of ‘unfair contract terms’ under the new Consumer Protection Act, 2019.

IIMA Working Paper Series, 2020

Gross negligence is a severe form of negligence. Its severity has been characterized using the pr... more Gross negligence is a severe form of negligence. Its severity has been characterized using the presence of a mental element or mens rea accompanying the negligent act. Within the context of professional negligence, gross negligence is important as it constitutes professional misconduct. For auditors, a finding of professional misconduct through disciplinary proceedings can result in suspension or expulsion from the profession. The Securities and Exchange Board of India also uses this concept to determine whether an auditor has violated any securities regulations. Given the implications of a finding of gross negligence on the practice of an auditor, this paper seeks to examine the legal standard in detail. The paper examines all reported High Court decisions from 1950s till 2019 and finds that the standards applied by the High Courts have been inconsistent. In the absence of any precedent from the Supreme Court of India that details what comprises gross negligence in the context of auditors, the inconsistent approach of the High Courts poses a problem. The Supreme Court decision in the P.K. Mukherjee case (1968) dealt with an auditor’s misconduct, however, it did not examine the question of gross negligence. This paper offers a starting point for a discussion to minimize the uncertainty currently associated with auditors’ liability for professional misconduct, especially hoping to assist the newly established the National Financial Reporting Authority in its decision-making process.

IIMA Working Paper Series, 2020

The 2018 decision by the International Court of Justice (ICJ) in which it for the first time addr... more The 2018 decision by the International Court of Justice (ICJ) in which it for the first time addressed compensation for environmental damage in the case Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) – Compensation Owed by The Republic of Nicaragua to The Republic of Costa Rica (‘Costa Rica case’) serves as the perfect opportunity to take stock of where international environmental law stands in terms of liability and compensation for environmental damage. While keeping in mind the distinct features between State responsibility for wrongful acts, the international liability of States in the absence of wrongfulness and the civil liability of persons along with the secondary liability of States as addressed in international treaties (in Part II), this paper seeks to focus on the core elements which one could find at the center of a Venn diagram between these various liability regimes (in Part III), to know: how are international bodies as well as domestic courts, international treaties and national legislations, defining and interpreting environmental damage, and applying it in concrete cases where compensation for environmental damage is in order? What is the standard of care applicable to the no harm obligation – is it based on a fault-based regime, strict or even absolute liability? Which methodology does one apply to calculate environmental harm? Despite some of the progress made with regard to the theoretical aspects of environmental damage, this paper will also review how courts fill in the contours when assessing environmental damages, including their reliance on equity as well as punitive damages when deciding cases, and assess whether international and domestic courts sufficiently rely on independent experts and valuation methods to calculate natural resource damages. In Part IV we will more closely analyze how the weaknesses of the international regime for civil liability for oil pollution has triggered interesting and more robust domestic legislative responses, based on a brief analysis of the Deepwater Horizon oil spill in the United States and the Erika oil spill disaster in France. The red thread running through this paper is that there is a natural and mutual influence between international environmental law developments, be it soft law, treaties or Judgments by the ICJ, and domestic legislative or judicial responses and reasonings. We will be reviewing these various facets through the prism of the Costa Rica case and contrast some of the ICJ’s approaches and conclusions vis-à-vis compensation for environmental damage with responses and methodologies adopted by domestic courts and national legislatures as well as international treaty regimes and international adjudicating bodies. In doing so, we will be able to better place the Costa Rica case in the context of contemporary environmental law developments and identify areas where the ICJ could have walked a more proactive judicial policy path (Part V).

IIMA Working Paper Series, 2020

Pre-packaging allows a distressed company to negotiate a plan with its creditors and a purchaser ... more Pre-packaging allows a distressed company to negotiate a plan with its creditors and a purchaser before entering formal insolvency proceedings. By allowing the terms of a plan to be negotiated before formal proceedings, pre-packs provide a quick and discreet way of completing the insolvency resolution process. The speed and confidentiality offered by pre-packs have made them prevalent in the United Kingdom and the United States, however, these advantages come with trade-offs. Creditors’ voting rights under the regular insolvency resolution process are circumvented by the pre-pack process. The US has two pre-pack processes, one that requires creditor approval and another which does not. In the UK and the US, there has been opposition to regulating pre-packs that do not need creditor approval because reforms that increase creditor participation will reduce the speed associated with such pre-packs. In India, pre-packs have not evolved through the present regime as it does not allow for the assets of a debtor to be sold without its creditors’ approval. The Insolvency and Bankruptcy Board of India is considering introducing pre-packs in the Indian regime and faces unique challenges because of some of the features in India’s insolvency regime. Insolvency law in India prohibits the participation of a company’s directors and creditors in the pre-pack process. Indian insolvency law also has broad avoidance provisions which can complicate the implementation of pre-packs. This paper discusses these challenges and uses the experience of the UK and the US to suggest a framework for the introduction of pre-packaged insolvency in India. After evaluating the pre-pack regimes in the UK and the US, we conclude that it would be optimal for India to retain creditor protections and require creditor approvals in its pre-pack regime. This would ensure that pre-packs can be discreetly implemented and also avoids the disenfranchisement of creditors.

IIMA Working Paper Series, 2020

In July 2019, the Competition Law Review Committee Report had recommended that Insolvency Resolut... more In July 2019, the Competition Law Review Committee Report had recommended that Insolvency Resolution Plans (IRP) which result in combinations should be green-channelled. This would mean that IRP combinations would be automatically approved without any merger scrutiny. The theoretical basis of this recommendation is the ‘failing firm defence’ which allows parties to enter into mergers if they show that the exit of a firm from the market will be more harmful to competition than the merger. This paper assesses the advisability of green-channelling IRPs through the lens of competition law. It examines the IRPs which have been scrutinised by the CCI and examines whether they are treated differently from other mergers. We use the European Union as a point of comparison to describe how the failing firm defence is being implemented and to show that there can be anticompetitive effects to green-channelling IRPs without a full competition assessment. We conclude that while the failure of a firm is an important consideration when assessing mergers, it cannot be the sole determinant of their desirability.

Journal of Public Affairs, 2020

Public acceptance constitutes an important factor in successfully establishing and operating nucl... more Public acceptance constitutes an important factor in successfully establishing and operating nuclear power plants. This paper explores public attitudes to the Kudankulam Nuclear Power Project commissioned in 2013 and situated in Southern India, through assessing the role of socio‐demographic factors, externalities, and social trust in determining the level of public acceptance. An exploratory survey (n = 100) was carried out in two administrative units in the vicinity of the plant. The study reveals that acceptance of the plant is positively correlated with positive externalities and trust in governmental entities, whereas negative externalities and trust in antinuclear nongovernmental organizations and media are associated with negative public perception. The results show that governmental policies on nuclear power must support the effects of positive externalities and reduce the effects of negative externalities.

The University of Pennsylvania Asian Law Review, 2020

This paper analyses how a case were to unfold if an operator of a nuclear installation were to ex... more This paper analyses how a case were to unfold if an
operator of a nuclear installation were to exercise its right of
recourse against a supplier in the event of supply of equipment or
material with latent defects, as envisaged under the unique Section
17(b) of the Civil Liability for Nuclear Damage Act, 2010 (CLND
Act), adopted by the Indian Parliament.

Indian Law Review, 2020

The performance of obligations under a contract may be hindered by unexpected supervening events,... more The performance of obligations under a contract may be hindered by unexpected supervening events, leading to contractual uncertainties. The doctrine of frustration paves the way for a just consequence of such an unfortunate event, which has happened without any fault of the contracting parties. The doctrine fills the void in a contract regarding supervening events, based on principles of fairness and equity. Considering the large implications on the obligatory and binding nature of a valid contract, it becomes important to analyse the factors that guide the courts to determine its application. Unlike common law, the Indian Contract law explicitly incorporates the doctrine of frustration under section 56 of the Contract Act. However, the evolution of this doctrine in India has been greatly influenced by English law. This paper attempts to restate the law on the doctrine of frustration as applicable in India.

$Research paper thumbnail of Hydraulic fracturing and groundwater contamination in India: evaluating the need for precautionary action$

Journal of Energy & Natural Resources Law, 2019

The hydraulic fracturing (fracking) and groundwater contamination debate started as soon as the c... more The hydraulic fracturing (fracking) and groundwater contamination debate started as soon as the commercial production of shale gas began in the United States. Since then there have been contrasting studies that have analysed the risk of groundwater contamination in carrying out fracking activities. In India, fracking is at its initial stage and therefore considering the groundwater contamination probabilities at the proposed sites, the Indian legislators/regulators may invoke the precautionary principle. This paper analyses the contrasting research over the probability of groundwater contamination, especially through methane migration, at fracking sites. Further, this paper examines the need for applying the precautionary principle, considering the scientific uncertainty prevailing over methane migration and groundwater contamination, to the Indian legal regime applicable to fracking activities.

Economic and Political Weekly, 2019

India has adopted the Bolam rule from the United Kingdom and has been using it to adjudicate case... more India has adopted the Bolam rule from the United Kingdom and has been using it to adjudicate cases of medical negligence. The evolution of the Bolam rule in the UK as well as the way the rule is applied in India by the Supreme Court reflects a balance between judicial intervention and deference to medical expertise. Although it is settled that it is the courts and not medical experts who must finally decide on whether the conduct of a doctor is negligent, the standards to be used when evaluating expert evidence and the extent to which such cases must be deferred to are evolving. The Supreme Court has not clearly stated the judicial standard against which it will test these differing opinions of medical experts and has not been consistent in its willingness to do so. Therefore, the application of the Bolam rule in India has been inconsistent and this is likely to have an impact on the decisions made by medical practitioners.

Administration and Society, 2019

Research examining regulatory independence has either suggested de jure independence to be a pred... more Research examining regulatory independence has either suggested de jure independence to be a predictor of de facto independence or suggested that the presence of de jure may not always indicate de facto independence. We study the Indian Atomic Energy Regulatory Board (AERB) to emphasize how AERB has enjoyed de facto independence, even in the absence of de jure independence. Using “judicial deference” principle, and through a mapping of substantive court cases, the article demonstrates Indian judiciary has consistently applied deference to AERB’s decision-making process, thereby showing confidence in the nuclear regulatory regime sustained since its inception

Working Paper, 2019

This working paper is focused on trying to interpret the meaning of “latent defects” and analysin... more This working paper is focused on trying to interpret the meaning of “latent defects” and analysing how a case were to unfold if an operator of nuclear installation were to exercise its right of recourse against a supplier in the event of supply of equipment or material with latent defects, as envisaged under the unique Section 17(b) of the Civil Liability for Nuclear Damage Act, 2010 (CLND Act), as adopted by the Indian Parliament. Therefore, this paper presumes and builds on the assumption of some prior knowledge of general nuclear law principles as well as the CLND Act and related debates. We welcome comments on any part of the paper.

The Civil Nuclear Liability for Damages Act of India enacted in 2010 has been a matter of concern... more The Civil Nuclear Liability for Damages Act of India enacted in 2010 has been a matter of concern to international suppliers and vendors. This is due to the perceived deviation of the law from the principle of legal channelling of liability (to the operator) which is at the heart of international nuclear liability jurisprudence. Specifically, this notion arises from allowing recourse to suppliers under outside of the circumstances mentioned in the Annex of the Convention for Complementary Compensation. Sections 17 and 46 which embody this notion are subject to different interpretations, some of them implying the compliance of the Indian regime with the international nuclear liability regime and many others equally suggest otherwise. In 2015, Government of India through a detailed Frequently Answered Questions clarified the nature and meaning of these sections. However, interestingly, there are two cases pending before Supreme Court of India contesting the constitutionality of the legislation in which these two specific provisions are also disputed. The article attempts to explain and resolve the ambiguity through a study of Supreme Court’s approach to statutory interpretation. I undertake an analysis of the reasoning given under the 2015 FAQ in the light of the disputed Sections 17 and 46 and bring out a probable prediction of Court’s interpretation of the Sections of the Act.

This paper undertakes a thorough review of the legislative and policy framework of water supply a... more This paper undertakes a thorough review of the legislative and policy framework of water supply and sanitation in India within the larger backdrop of the universal affirmation of right to water and sanitation under the UN WaSH initiatives, first articulated under the Millennium Development Goals (MDGs). Recognizing the proactive role played by the Indian judiciary in this regard, the paper examines various patterns of judicial reasoning in realising the right to water and sanitation as Constitutional rights of citizens. The paper observes that through a consistent ‘rights-based’ approach, the Indian judiciary has systematically articulated and achieved the objectives of the UN WaSH initiatives long before they were spelled out under the MDGs. The paper highlights the need for the Government to recognise and incorporate judicial insights in implementing developmental projects under the WaSH initiatives.

A public hearing is the only medium in the environmental clearance process through which people c... more A public hearing is the only medium in the environmental clearance process through which people can interact directly with government officials and the project proponents regarding project-related concerns. The relevance of public hearings—underlining principles of “democratic participatory governance,” “sustainable development” and “natural justice” for people—can never be undermined. However, this single procedural step is at the centre of so many legal disputes in the Indian courts (Supreme Court and high courts), and the National Green Tribunal had to repeatedly step in and clarify its importance in public policy and the environmental clearance process. This article reviews a series of judicial and quasi-judicial decisions on the question of the public hearing process in India

Journal of Risk Research, Aug 5, 2015

India’s Parliamentary election in 2014 witnessed formation of a new government. One of the first ... more India’s Parliamentary election in 2014 witnessed formation of a new government. One of the first visits the new Prime Minster made was a trip to Bhabha Atomic Research Centre in Mumbai – cradle of India’s nuclear programme (Department of Atomic Energy 2014). The visit is historic and has wider significance in many ways; showing continuity of policy and purpose and a real political statement that the government may be new, but the government’s thrust on nuclear programme is not for bargain.

This paper addresses the issue of the Mullaperiyar Dam dispute between Kerala and Tamil Nadu with... more This paper addresses the issue of the Mullaperiyar Dam dispute between Kerala and Tamil Nadu with specific reference to the two judgements delivered by the Supreme Court of India on the matter. This paper attempts to examine the arguments, facts, and the judgement of the Court on each of the primary issues raised during the course of the dispute. The first case was filed by the Mullaperiyar Environmental Protection Forum in 2001, wherein the Court adjudged the case in favour of the Respondents, the State of Tamil Nadu. Consequently, due to certain developments, examined in the course of the second case, the State of Tamil Nadu filed a petition before the Supreme Court against Kerala, in 2006 seeking relief for the actions on the part of the latter after the judgement in the first case. A Constitution Bench was constituted to adjudicate this case, which re-examined certain issues raised during the first case and conclusively laid down its decision in favour of Tamil Nadu.

Modeling analysis of rare events like occupational accidents from nuclear power plants are crucia... more Modeling analysis of rare events like occupational accidents from nuclear power plants are crucial to understand potential risks. India is poised for a major expansion of civil nuclear energy in the coming decades; such an analysis with this background becomes more important. With this background, this paper explores the pattern of the historical data on severity and frequency of accidents in the select nuclear power plants of India. Based on the historical trend, econometric projections have been undertaken on the estimates of fatality, severity rates within the different uncertainty limits. Results of the projection exercise seem to indicate that there is a probable likelihood of a rise in fatal accidents in nuclear power plants in the absence of incremental safety culture. Further, through a downscaled analysis of global nuclear accidents, the severity and frequency rates of accidents for the Indian nuclear power plants are estimated. Overall, appreciative of the fact that there has not been many major accidents in the past, the results however communicate there is a need to continuously step up policy interventions and safety culture to tackle fatal accidents in nuclear power plants of India.

Springer, India, Apr 2015

In the development of international law relating to liability, the nuclear energy sector represen... more In the development of international law relating to liability, the nuclear energy sector represents an alternative approach to transboundary liability regime. Building on this foundation and following the Chernobyl accident—international consensus was sought for a stronger transboundary legal regime in the event of a nuclear disaster. However, after 60 years of the existence of international nuclear liability laws and 25 years after Chernobyl, the primary objective of the Conventions—harmonisation and a global regime remains unfulfilled. Further, many countries are expanding or introducing nuclear programmes, without adequate transboundary legal protection. On account of these issues, a regional approach to nuclear risk framework appears more promising than the non-achievable global regime. South Asia, with its rapidly expanding nuclear energy footprint is in a unique position to adopt a regional mechanism. This study undertaken during the period 2009 to 2014, brings out the difficulties that lie ahead in achieving an overarching global nuclear liability architecture. In the case of South Asia—a densely populated region, the existing legal regime and legal arrangements which are under consideration are unlikely to secure a transboundary liability remedy. The technical risk assessment study points to the likely transboundary impact in case of a nuclear accident. There has not been any attempt in forging a regional consensus on the issue of nuclear energy risk to date. The book argues that a regional approach is certainly possible in South Asia, under the structure of SAARC, and the expert opinions confirm this proposition. The result gives a basic framework for decision-makers in SAARC on implementing measures that address the transboundary nuclear energy risk concern.

IIMA Working Paper 2021-04-01, 2021

NUJS Law Review, 2020

IIMA Working Paper Series, 2020

Journal of Public Affairs, 2020

The University of Pennsylvania Asian Law Review, 2020

Indian Law Review, 2020

$Research paper thumbnail of Hydraulic fracturing and groundwater contamination in India: evaluating the need for precautionary action$

Journal of Energy & Natural Resources Law, 2019

Economic and Political Weekly, 2019

Administration and Society, 2019

Working Paper, 2019

Journal of Risk Research, Aug 5, 2015

Springer, India, Apr 2015

The work provides an excellent overview of Indian Atomic Energy Regulatory Board’s regulatory str... more The work provides an excellent overview of Indian Atomic Energy Regulatory Board’s regulatory structure, the facilities and activities it regulates. Further, it also discusses its regulatory requirements and regulatory process; and its ethics.