Practices

ADVANCE PRICING AGREEMENTS

Complexities surrounding transfer pricing regulations are wide and it is advisable for companies to mitigate the regulatory concerns before they arise. Advance Pricing Agreement (APA) is a way which companies can use to seek regulatory guidance on pricing of goods and services in advance. This not only reduces their risk exposure and potential delays and costs. Specialists at Team KK can guide you through the entire regulatory procedures on APAs to ensure that your business strategies are not affected.

Alternative Dispute Resolution

Alternative dispute resolution (ADR) has grown over a period of time and has become an important means in the dispute resolution process.

KK Sharma Law Offices assists clients with resolution of disputes in all areas of general and special practices in a broad range of industrial sectors including Oil and Gas, Power, Mining, Construction and Infrastructure, Real Estate, Entertainment and Media, Banking and Finance, Aviation, Insurance and Reinsurance, International Finance, International Investments, Intellectual Property, Information Technology, Telecommunications, etc.

Our Team assists in both international and domestic arbitration and other forms of ADR such as conciliation and mediation. Our attorneys act as counsels and arbitrators in high stake arbitrations providing best advice and support in resolving disputes. We represent government bodies and PSU’s in ADRs. We have a dedicated team of lawyers with specific expertise to meet our client’s requirements and handle complex arbitration matters both in India and abroad.

Services provided by our Firm include:

  • Conducting domestic arbitration under the Arbitration and Conciliation Act. 1996 as amended till date and ICA rules
  • Conducting international arbitration under UNCITRAL and ICC Rules
  • Rendering mediation services to clients.
  • Enforcing and challenging enforcement of Arbitral Awards
  • Representing clients before High Courts and Supreme Court in arbitration petitions
  • Advising clients on the appropriate venue of arbitration and choice of procedural and substantive law
  • Appointment of arbitrator through High Court of Delhi and Supreme Court of India
  • Representing clients before arbitral tribunals with regard to disputes arising out of agreements containing arbitration clause
  • Applying to stay proceedings brought in breach of arbitration clauses
  • Draft arbitration agreements and clauses
  • Advising clients and handling arbitration cases related to Commercial Contracts, Collaboration Disputes, Contractual Disputes, Construction Agreements, Service Agreements, Joint Venture Agreements, Supply Contracts, Marketing Agreements, Sale Agreements, etc.
  • Advising clients on conciliation and mediation matters.
  • Advising clients on alternative dispute resolution laws and procedures
  • Conducting Lok Adalats with the concerned legal services authorities.

ANTI DUMPING

In addition to representing our clients in challenging various anti-dumping and countervailing duties before the authorities, we also provide entire array of legal services on antidumping laws including but not limited to assisting companies to investigate and analyze problems that domestic industries suffer in case of dumping, helping the companies to marshal, collate and present evidence on problems faced by industries in different sectors, investigate relevant import statistics and related sales status in India of the product in question and similar foreign products.

Updating our clients on various anti dumping laws, policies and notifications, anti-circumvention laws, etc. is an ongoing activity. We assist exporters, importers and domestic industry in various antidumping matters before Directorate General of Anti-Dumping and Allied Duties (DGAD), India. We provide assistance in making, reviewing and translating anti dumping annual review application, sunset review application, and other kinds of legal documents and help them in filling out various kinds of questionnaires; providing consultancy and legal opinions to clients and liaison with governmental authorities and industrial associations.

COMPETITION CAPACITY BUILDING

Our capacity building group provides a unique resource for governments and non-governments seeking to form a best in class regulatory institution. Team KK brings to the table an extensive knowledge network through its team of global advisors, many of whom have been at senior positions in regulatory agencies across different jurisdictions such as the European Union, Latin America, South Africa or are internationally recognised academics and economists. The Team is led by KK Sharma, who played a key role in institutionalising the competition law in India through the Competition Commission of India.

Under this category, we provide services to Competition Agencies which include the following:

Assisting governments in establishing competition agencies from inception: We are a passionate lot when it comes to competition law development. We are committed to promote the protection and evolution of competition law through cooperation among different stakeholders. We are strategic input partners on how competition law should evolve. Regulatory development and capacity Building are ongoing processes. We are active in sharing inputs with governments on issues that needs rectification and development.

Assisting in capacity building of competition agencies worldwide: The past experience of our people in working on diverse regulations like competition laws and international taxation has given KK an insight into how complex institutions work. No institution can be effective unless the technical capacities of its personnel are upgraded from time to time. We take pride in doing this.

Establishing best practices and regulations: Having gone through the drill of creating an entire array of regulations for making competition law functional in India, we at KK are best suited to draft new regulations, guidelines and procedures needed by regulatory authorities. Our capacity building workshops are custom-made, country-specific and demand-driven. They are designed to engage participants in practical hands-on exercises in competition law and practice which will be planned on the basis of specific challenges faced by the countries.

COMPETITION LAW

We advise on full range of competition matters, including cartel enforcement, abuse of dominant position, merger control and competition audit and compliance. We have represented various Indian and multinational clients across sectors such as automobiles, real estate, insurance, liquor industry, shipping, industry, manufacturing, oil chemical industry, services of GPS device installed vehicle, bulk transportation, future trading of agricultural commodities, power generation and transmission, to name a few.

On the behavioural front, we have been involved in filing fresh information against enterprises involved in anti-competitive conduct or abuse of dominant position, developing strategies to represent the clients (informant as well as opposite parties) before the Office of the Director General, the Competition Commission of India (CCI), the Appellate authority (erstwhile COMPAT and now NCLAT), High Courts (Writ Jurisdiction), as well as the Supreme Court of India and have, in majority of the cases, secured favourable decisions at each level. We have made our way through challenging cases where we have been recognized for our involvement in certain precedent setting contentious matters, including obtaining orders from the Competition Commission for investigation, or for imposition of penalties against established enterprises. We have also obtained orders from Appellate Tribunal setting aside huge penalties. In one such case, the penalty imposed by the CCIwas reduced by more than 99% in a first ever case of hard core cartelisation before the CCI where the there was a documentary proof of such collusion.

We regularly represent clients in high profile cartel and abuse of dominance cases, and have advised clients on the multiple yet significant nuances of the private litigation in competition law where the established PSUs and other enterprises have approached us for similar advice including leniency programs. We also advise clients on compliance strategies and risk mitigation measures.

Our services further extend to all issues related to market practice as well as market structure, including merger control, cartel enforcement, compliance aspects related to the enforcement provisions of Indian Competition Law. We assist in conducting mock ‘dawn raids’ and competition audits and drafting and filing of leniency applications with the CCI. We also advise and assist companies in auditing their existing agreements/ practices and forming compliance programmes/ procedures.

SCOPE OF SERVICES
Our Competition Law practice area encompasses the following areas:

  • Strategic advice and training on operational part of competition law in various competition agencies in foreign jurisdictions and counselling on issues such as legal, strategic and compliance issues related to the Competition Act.
  • Competition Law Applications and Filings: Team KK shall undertake filings for and representing clients before the CCI, in conjunction with other experts. This includes applications for the clearance of combinations along with any filing of an Information under the Act.
  • Litigation: Understanding of Private Litigation in Competition Law and the related jurisprudence is at a nascent stage in India. However, we have developed an edge in advising our clients with the help of experienced associates and partners practising in mature jurisdictions. We advise on feasibility of filing a follow-on litigation in the form of an application before NCLAT for recovery of compensation for the loss shown to have suffered by an enterprise or a person (who may or may not be a party to the proceedings before the CCI or NCLAT) which is arising out of findings of the CCI or NCLAT against the anti-competitive conduct of an enterprise.
  • Documentation: We undertake drafting and review of memorandum of understanding and various other agreements such as material agreements, non-disclosure agreements, franchise agreements, non-compete agreements, stock swap agreements, employment agreements with a view to curtail the issues of competition law mainly: anti-competitive agreements or abuse of dominant position that may arise before the CCI.
  • Regulatory advice: This would include regulatory review and advice with respect to issues and behavioural pattern of enterprises and transactions undertaken by foreign or domestic enterprises, having implications under the Competition Act.

Corporate Restructuring

We assist our clients in re-organization and reconstruction of companies, debt restructuring, and refinancing to formal insolvency procedures such as administration, receivership, voluntary arrangements, liquidation and bankruptcy. We advise financial institutions, business concerns and other key stakeholders on rescue and recovery procedures. We advise on all aspects of restructuring and insolvency, whether in anticipation or in dealing with the consequences in industries ranging from retail, health care, financial services to food and office products.

We assist our clients in relation to issues like amalgamation of companies, de-merger of companies, division or partition of a company into two or more companies, hiving-off unit from registered companies, compromise with the members or creditors of a company, detailing arrangement with respect to the share capital, assets or liabilities of the company, etc.

We advise our clients in a number of contentious disputes arising out of the insolvency process such as unfair preferences, undervalued, defrauding creditors, priorities disputes, opposition of judicial management petitions and/or schemes of arrangements and trust monies.

Foreign Investment Approval

assistance to foreign companies for routing entry strategies for investment in India and assisting them through Government regulations and procedures for setting up their operations in India is another area of our operation. We assist our clients in complying with the provisions of Foreign Investment Management Act (FEMA) 1999 on routing Foreign Direct Investment (FDI) in India. Our lawyers have in depth knowledge of international markets and FEMA and comprehensive experience in cross border transactions. We provide FDI consulting services to our clients.

We assist clients in obtaining necessary approvals from concerned authorities such as Foreign Investment Promotion Board (FIPB), Director General of Foreign Trade (DGFT), Department of Industrial Policy & Promotion (DIPP), Secretariat for Industrial Assistance (SIA), and Reserve Bank of India (RBI) etc. We also assist clients in Industrial licensing, Government contracts, transfer of technology and licensing and repatriation. We advise and assist clients on routing Foreign Direct Investment in different sectors of the economy. We deal with mergers & acquisitions, private equity, joint venture agreements, international securities and capital markets transactions. We assist companies in raising capital by way of FCCB’s, ADR/GDR etc.

We are a capital investment consulting firm and advise in determining the most appropriate vehicles for the desired investments in India, ranging from establishing a Liaison Office, Branch Office, Representative Office, Joint Venture, Wholly Owned Subsidiary, Holding Companies and Acquisition of an existing company. We also advise on various provisions and procedures relating to imports and exports. We conduct due diligence and feasibility analysis of probable collaborators for our clients. We draft various agreements such as joint venture agreement, shareholders agreements, share purchase agreements, memorandum and articles of association of joint venture companies relating to India entry for our clients.

Intellectual Property

The Team KK understands how intellectual property (“IP”) assets can best be created , value thereto determined and rights therein protected and used/ acquired/ supplemented to produce a competitive advantage. The team provides advice and assistance to its clients with respect to due diligence (routinely uncovering issues in chain of title, encumbrances/obligations, or enforcement/prosecution/ deficiencies often left undetected), acquisition of IP and related agreements and partnerships/ joint ventures with an aim to transfer/ share/ development of IP.

The Team renders services to several multinational and Indian companies across a broad range of sectors and industries on issues pertaining to registered and unregistered IP rights including trademark, copyright, designs, domain name registration, patent, licensing, and technology transfer matters; apart from management of IP portfolios.

The Team KK advises and assists clients on:

  • Protection and prosecution of IP rights (including patents, trademarks, design rights, copyrights, geographical indications, domain names, proprietary know-how and business processes)
  • IP due-diligence and audits.
  • IP acquisition and transfer and related agreements.
  • Drafting and negotiating license agreements, assignment deeds, IP development agreements, etc.
  • Representing before various authorities, courts and forums on issues relating to registration and protection of IP rights.

Litigation

Team KK represents clients in all type of Civil and Criminal matters at pan India level, in all courts including Supreme Court of India, High Courts and District Courts.

We have established practice in the following areas of Litigation:

  • Corporate Frauds, Insider Trading and Market Manipulation;
  • White Collar Crimes / Economic Offences;
  • Department of Company Affairs – Serious Frauds Investigation office;
  • Bank / Financial Institutions Frauds;
  • Misappropriation and Siphoning of Funds;
  • Dishonor of Cheques;
  • Criminal Complaints;
  • Writs / Revisions / Appeals;
  • Defamation Cases;
  • Prevention of Money Laundering Act;
  • Prevention of Corruption Act;
  • Violation of Intellectual Property Rights / Cyber Laws;
  • FEMA / COFEPOSA/ SAFEMA

Mergers & Acquisitions

We, at KK Sharma Law Offices, take pride in serving clients ranging from investment banks, companies and large corporate groups in merger and acquisition deals. Irrespective of the size of the deal, our focus always is clients’ benefit from our experience and handling. We advise on structuring mergers and acquisition including structuring issues, drafting transactional documents, etc.We also advise on Corporate and Security Law issues related to SEBI Takeover Code, listing and assist clients in compliance with regulatory requirements, government approvals, statutory filings etc.

We advise companies on methods of restructuring including joint ventures, mergers, acquisitions, demerger / spin-off a division into a separate company, buy-back of shares, leveraged buyouts, slump sale, reduction in share capital, winding-up and repatriation of the proceeds. We also advise on tax benefits available to companies after restructuring.

We draft Share Purchase Agreements, Shareholders Agreements, Joint Venture Agreements, Non-Compete and Non-Disclosure Agreement, Escrow Agreement, Stock Swap Agreement etc. We assist our clients in cross border mergers and acquisitions in various sectors such as technology, telecommunications, manufacturing, construction, natural resources, financial institutions, consumer goods etc. These merger deals could be both – national and international.

START-UPS

Every new business needs a solid legal foundation. We appreciate that when time and resources are scarce, legal concerns often take a back seat. However, getting the legal basics right from the start, can go a long way in smoothening the road for your business’ future success. We focus on addressing it by providing entrepreneurs with knowledgeable, experienced, and responsive legal guidance. From formation to exit or from two people in a garage to hundreds of employees, we know what it takes to create, finance, and scale a startup.

We provide services to an entrepreneur, starting a new business, forming an LLP or a corporation, seeking to hire a new employee, or protecting the intellectual property amongst others.

Our services include the initial incorporation/registration and obtaining necessary approvals and licenses from the relevant authorities, drafting the requisite agreements, and other documents for running the business. Team KK has assisted the clients with corporate law issues throughout every stage of the corporate life cycle while dealing with questions such as:

  • How do I protect my idea, innovation?
  • How best to set up your capital structure?
  • How to deal with minority shareholders?
  • How to manage your board of directors
  • How to communicate with your shareholders and investors?
  • How to approach Institutional investors?

TAX STRUCTURING

Mergers, acquisitions and other business transactions present excellent opportunities for companies to improve tax efficiency. During such transactions tax risks must be managed and a proper tax structure selected taking into consideration the jurisdictions involved. Therefore, legal experts with in-depth knowledge of optimal tax structures in various jurisdictions are key advisors in such situations.

KK lawyers guide in identifying tax risks resulting from complex transactions and provide advice on most suitable tax efficient structures.

Tax structuring advisory includes:

  • Preparing company structures that are tax efficient for acquisitions, mergers and amalgamations or joint ventures.
  • Reorganising of groups of businesses under holding company and preparing documents related to such reorganisation and management of the group.
  • Making transitional plan for family-held big businesses for passing on their wealth to the next generation with the least tax burden.
  • Structuring of businesses in preparation for initial public offering (IPO).

TRANSACTION SUPPORT

Due Diligence is essential to any growing company in today’s challenging business environment to understand and evaluate a prospective acquisition, buyer or partner.

Due Diligence is a comprehensive appraisal of a business undertaken by a prospective buyer, especially to establish its assets and liabilities and evaluate its commercial potential. Such diligence may be required for various different reasons. Due Diligence is performed by companies seeking to make acquisitions, by equity research analysts, by fund managers, broker-dealers, and of course by investors.

It is the process by which confidential legal, financial and other material information is exchanged, reviewed and appraised by the parties to a business transaction. We undertake to do a through corporate Due Diligence by investigating the documents provided by the target as well as from the documents provided by the regulators. We also provide a comprehensive Diligence Report that highlights the major issues/non-compliances and provides creative solutions for the same.

We serve our Clients by providing a complete Diligence Reports which have been either:

  • Legal Due Diligence Report : A Legal Due Diligence seeks to examine the legal basis of a transaction, for example to ensure that a target business holds or can exercise the intellectual property rights that are crucial to the future success of the company; or
  • Tax Due Diligence Report : This involves understanding of Target’s tax structure and comprehensive examination of the different types of taxes that may be imposed upon a particular business and to uncover significant potential tax exposures. A Tax Diligence covers not only income taxes, but also sales and use taxes, payroll and employment taxes, property taxes, unclaimed and abandoned property (escheatment), and independent contractor vs. employee classification.

TRANSFER PRICING

Team KK assists enterprises in minimising their global tax burden and reduce exposure to unfavourable audit assessments through in-depth tax planning. Our transfer pricing services combine a blend of economics, tax as well as inside experience of a tax collector with industry-specific commercial awareness.

We handle issues related to:

  • Transfer pricing planning and documentation.
  • Legal, tax and economic issues to transfer pricing in the context of tax planning, compliance and documentation.

Automobile

Having got one of the global automobiles giants imposed with a fine of Rs. 87 crores amongst other instances, our grip on this sector is complete. KK Sharma Law Offices ('Firm') has dealt with the procurement of services of Car Carrier Trucks by market leader in automobile sector in India and brought the anti-competitive practices to the fore.

Banking And Finance

The very first investigation in the country into competition law violations was made which resulted in a cascading effect of company after company giving up the claims of loan foreclosure charges in home and car loans across the country, amongst others, were under taken.

Bulk Transportation

When the allegations of cartel were brought before the enforcement machinery against the flexible conveyor belt manufacturers they were clear in their mind that only KKSLO can deal it successfully and, accordingly, they availed our services.

Film

The very first successful instance of cartelisation dealt by the competition agency in the case of Ficci Multiplex Association was very successfully dealt with by the competition agency under the overall supervision of Mr. Sharma.

Future Trading of Agriculture Commodities

The very first penalty on the leading stock exchange of the country exceeding Rs.50 Crores was based on the investigation done by the Mr. Sharma. Subsequently, when there were allegations of future trading and guar gum and other similar commodities, for saving the enterprises from huge fines, the Firm was the natural choice for representing these companies.

It may not be that well known no manufactured vehicle can leave the premises of the manufacturer except without being loaded on to the car carrier trucks. When the instances of anti competitive practices came to the fore, the Firm was the first choice to taken services from.