Legal Updates

Technology has completely reshaped the way litigation is handled, making legal research, case management, and evidence presentation more efficient than ever before. With tools like artificial intelligence (AI), electronic discovery (e-discovery), anddigital communication, lawyers can now work faster and more effectively. But withthese advancements come serious ethical concerns—confidentiality, accuracy, fairness, and professional responsibility are all at stake. Legal professionals need to be mindful of these challenges to uphold justice and preserve the integrity of the legal system. 1. Confidentiality and Data Security Confidentiality is one of the most fundamental principles in legal ethics. With so much client data stored and shared digitally, the risk of security breaches is real. To protect sensitive information, lawyers should: • Use encrypted communication channels and secure cloud storage. • Implement multi-factor authentication to keep unauthorized users out. • Stay compliant with data protection laws like the GDPR and India’s Information Technology Act, 2000. • Educate their teams and clients about cybersecurity best practices. 2. Staying Up to Date with Legal Technology Lawyers have a duty to keep up with the latest technology. This means: • Understanding how AI-powered research tools work and their limitations. • Keeping pace with blockchain, predictive analytics, and digital forensics. • Fact-checking AI-generated legal arguments to ensure accuracy. 3. Digital Evidence and the Risk of Deepfakes Technology has made digital evidence an essential part of many cases, but it also brings new risks. Deepfakes—AI-generated content that manipulates audio, video, or images— could be used to introduce false evidence. To avoid this: • Lawyers need to carefully verify digital evidence before presenting it in court. • Forensic tools should be used to check for alterations or manipulation. • Courts need stricter guidelines on the admissibility of AI-generated content. 4. The Dangers of AI Bias in Legal Decisions AI can help predict case outcomes, recommend sentences, and analyze legal documents, but these systems are only as good as the data they’re trained on. If the data is biased, the results will be too. To ensure fairness: • Lawyers should critically analyze AI-generated legal insights. • Transparency in AI decision-making processes should be prioritized. • AI tools should always be used with human oversight. 5. Ethical Use of Social Media in Litigation Social media is a goldmine for evidence, but lawyers must use it ethically. That means: • Avoiding deceptive tactics, like creating fake profiles to gather information. • Respecting client confidentiality and avoiding public discussions of cases. • Thinking about the potential consequences of online statements. 6. The Risk of Unauthorized Legal Practice Through AI AI-driven legal tools are becoming more common, but there’s a fine line between using technology for assistance and relying on it for actual legal advice. Lawyers should: • Ensure that AI-powered tools don’t cross into unauthorized legal practice. • Make sure clients understand that AI can’t replace a qualified attorney. • Follow all professional regulations regarding legal automation. 7. Ensuring AI-Generated Legal Content is Reliable Lawyers have faced penalties for submitting AI-generated legal documents with fake citations. This highlights the need for: • Verifying all AI-generated legal research before using it. • Cross-checking citations with primary sources. • Being mindful that AI tools are fallible and require human oversight. 8. Maintaining Professional Integrity in Tech-Driven Litigation The duty of candor extends to technology use in legal practice. Lawyers should: • Disclose when AI-generated content is used in court filings if necessary. • Ensure all electronic submissions comply with procedural rules. • Prevent AI misuse that could compromise legal integrity. Conclusion: Technology is transforming litigation in ways that make legal work more efficient and accessible. However, the ethical concerns that come with it—data security, AI bias, deepfake evidence, and more—can’t be ignored. Lawyers have a responsibility to balance technological innovation with professional integrity, ensuring that justice is served without compromising ethical standards. By staying informed, exercising caution, and upholding the core values of the legal profession, they can make the most of legal technology while preserving the integrity of the law.

– Somya Saxena, Associate The year has seen significant developments in insolvency jurisprudence under the Insolvency and Bankruptcy Code, 2016 (IBC). Both the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) have played pivotal roles in shaping the interpretation and application of the IBC, ensuring a balance between creditor recoveries, corporate revival, and adherence to procedural fairness. This article exploresthe key trends and landmark rulings by NCLT/NCLAT over the past year and their implications for stakeholders. Strengthening the Creditor-In-Control Framework One of the cornerstones of the IBC is the principle of “creditor in control,” which vests decision-making power with the Committee of Creditors (CoC). NCLT/NCLAT rulings this year have consistently reinforced the supremacy of the CoC in approving resolution plans. Evolving Jurisprudence on Personal Guarantors The liability of personal guarantors to corporate debtors has been a major area of focus this year. With the Supreme Court’s decision in 2021 upholding the validity of personal guarantor provisions under the IBC, the NCLT/NCLAT have dealt with several cases clarifying the extent of personal guarantors’ liabilities. Addressing Delays and Procedural Bottlenecks While the IBC mandates a 330-day timeline for resolution, delays remain a recurring challenge. Over the past year, NCLT and NCLAT have taken a stricter stance against avoidable delays, emphasizing adherence to statutory timelines. Expedited Hearings: Tribunals have proactively prioritized insolvency matters and discouraged adjournments, except in extraordinary circumstances. In Jaypee Infratech Ltd., the NCLAT directed the CoC to ensure timely resolution by actively engaging with resolution applicants, reducing the scope for litigation-induced delays. Accountability for Delays: In cases like Committee of Creditors of Essar Steel v. Satish Kumar Gupta, tribunals highlighted the need for efficient coordination between stakeholders to prevent prolonged litigation. Additionally, rulings encouraged CoCs and resolution professionals (RPs) to streamline processes, such as quicker invitation and evaluation of bids. Cross-Border Insolvency and Group Insolvencies While India is yet to formally adopt the UNCITRAL Model Law on CrossBorder Insolvency, NCLT/NCLAT rulings have shown a growing willingness to address cross-border complexities and group insolvencies. Recognition of Foreign Proceedings: In the case of Jet Airways (India) Ltd., the NCLAT upheld cooperation between Indian and Dutch insolvency professionals, signaling progress toward cross-border insolvency norms. This case exemplifies the potential for harmonizing insolvency frameworks across jurisdictions, even in the absence of formal legislative mechanisms. Group Insolvencies: Tribunals have also dealt with cases involving insolveing corporate groups, where they emphasized the importance of consolidated resolution plans to maximize asset value. For instance, in the insolvency of Amtek Group companies, NCLT encouraged the CoC to develop holistic solutions rather than fragmenting the proceedings, to ensure coordinated recovery for stakeholders. Pre-Packaged Insolvency for MSMEs The introduction of the pre-packaged insolvency resolution process (PPIRP) for micro, small, and medium enterprises (MSMEs) has been a game-changer. NCLT has adjudicated several pre-pack cases this year, streamlining resolutions for distressed MSMEs. Key Approvals: In some landmark approvals, NCLT stressed the importance of faster resolutions under PPIRP while ensuring compliance with transparency and procedural requirements. This has encouraged wider adoption of pre-packs by MSMEs. Increasing Focus on Resolution Professional Accountability The conduct of resolution professionals (RPs) has been under scrutiny, with NCLT/NCLAT emphasizing their fiduciary duty and accountability. Liquidation vs. Revival Another key trend this year has been the tribunals’ nuanced approach toward liquidation cases. While resolution remains the preferred objective, NCLT/NCLAT have allowed liquidation where resolution is unviable. Conclusion The past year’s NCLT/NCLAT rulings highlight a maturing insolvency framework in India. These rulings reflect a consistent effort to uphold the objectives of the IBC while addressing evolving challenges, such as personal guarantor liabilities, cross-border insolvency, and procedural delays. Going forward, stakeholders can expect continued judicial guidance on complex insolvency issues, which will further strengthen the IBC’s role as a robust framework for corporate resolution and restructuring.

– Nitya Prabhakar, Associate In the evolving landscape of cross-border transactions and the increasing complexity of commercial contracts, efficient dispute resolution mechanisms have become critical. One such mechanism is the two-tier arbitration clause, which aims to balance expediency with fairness by introducing a second tier of review within the arbitration process itself. This article explores the concept of two-tier arbitration clauses, their enforceability under Indian law, and the evolving judicial perspective on these clauses. What Are Two-Tier Arbitration Clauses? Under this format of arbitration, the parties voluntarily agree to resolve their disputes through a two-tier arbitration process. In the first tier, a sole arbitrator or an arbitral tribunal is constituted by mutual consent of the parties, to hear the dispute and issue an award. In the second tier, if either party is dissatisfied with the award, an appellate arbitral tribunal is constituted, which reviews and confirms, modifies, or sets aside the award made by the first-tier tribunal. Globally, two-tier arbitration clauses are common in commercial agreements, particularly in contracts involving cross-border transactions. A two-tier arbitration model embodies the principle of party autonomy—allowing parties to design their dispute resolution process, including an appeal mechanism if they deem it necessary. This autonomy is central to arbitration and is fully consistent with international arbitration practices under frameworks like the UNCITRAL Model Law on International Commercial Arbitration. With the advent of globalization and the liberalization of the Indian economy, numerous multinational corporations are entering the Indian market. By creating an appellate mechanism within arbitration, parties are able to seek a review without resorting to court proceedings, thus maintaining the efficiency and confidentiality of the arbitration process. Enforceability and Validity of Two-Tier Clauses in Indian Legal Landscape The enforceability of two-tier arbitration clauses in India is governed by the Arbitration and Conciliation Act, 1996, which provides parties with significant autonomy to structure their arbitration agreements. Indian courts have generally upheld the validity of these clauses, provided that the terms are clearly drafted and do not violate the principles of fairness and due process. Moreover, with India being a signatory to the New York Convention, two-tier arbitration clauses in cross-border contracts are enforceable, enhancing the certainty and stability of international arbitration agreements. Under Section 7, parties are vested with the autonomy to design their arbitration agreements and include multi-tiered arbitration processes. Section 8 mandates courts to refer parties to arbitration where a valid arbitration agreement exists. Section 11 governs the appointment of arbitrators, which can include constitution of an appellate tribunal where the agreement provides for a second tier of arbitration. Section 16 empowers the arbitral tribunal to determine its own jurisdiction, and can enable the tribunal to assess whether the two-tier structure has been properly implemented before proceeding with the arbitration. Section 29A which imposes a time limit for the completion of arbitral proceedings, could be extended to appellate arbitral tribunals to ensure that cases are not unnecessarily dragged out. Though the two-tier arbitration model intends to reduce the need for judicial scrutiny as the parties have already been provided with an opportunity for review, it however does not preclude judicial intervention under Section 34. Judicial Interpretation of Two-Tier Arbitration Clauses In a landmark judgment of Centrotrade Minerals and Metals Inc. v. Hindustan Copper Ltd., reported as (2017) 2 SCC 228, the Supreme Court of India affirmed the validity of two-tier arbitration clauses under the Arbitration and Conciliation Act, 1996. The Court held that such a mechanism, where parties can appeal an arbitral award before a second arbitration body, is legally permissible, and upheld the agreement executed between the parties to allow for an appeal before the International Chamber of Commerce (ICC) following a domestic arbitration. The decision set a significant precedent for the validity of multi-tiered arbitration agreements in India. Subsequently, the enforceability of the foreign arbitral award passed by the ICC was considered by the Supreme Court in Centrotrade Minerals and Metals Inc. v. Hindustan Copper Ltd., reported as (2020) 19 SCC 197. Hindustan Copper Ltd. challenged the award on the ground that it was not able to present its case before the ICC Arbitrator. However, the Court rejected this objection and allowed the execution of the ICC award in favour of Centrotrade, reasoning that the procedural objections must meet stringent criteria under Section 48 of the Arbitration and Conciliation Act, 1996, to bar the enforcement of foreign arbitral awards. Thus, while parties may agree to a second tier of arbitration, it does not oust the court’s jurisdiction to review an arbitral award. Section 34 vis-à-vis Two-Tier Arbitration Section 34 of the Arbitration and Conciliation Act, 1996, provides limited grounds for challenging an arbitral award, such as violations of public policy or procedural misconduct. However, Section 34 is not an appeal mechanism—it only allows parties to seek the setting aside of an arbitral award based on narrowly defined criteria. It does not permit a re-evaluation of the merits of the case or the evidence presented. This creates a critical gap for parties who may wish to correct errors in the arbitral award without resorting to court intervention. Two-tier arbitration, involving a second-tier appellate arbitral tribunal, offers a mechanism for reviewing arbitral awards internally before approaching the courts. Unlike Section 34 which limits judicial review to procedural and public policy violations, an appellate arbitral tribunal allows for a more thorough review of factual and legal issues. This provides parties with an opportunity to correct errors and enhance the fairness of the award without seeking court intervention. However, introducing a second tier can raise significant concerns about delays. Arbitration is meant to be faster than traditional litigation, and adding an appeal mechanism could extend the time taken to resolve disputes. While the intention is to ensure a more accurate and fairer outcome, there is a risk that the second-tier review might defeat the purpose of arbitration’s efficiency. In such a scenario, introducing strict timelines and clear guidelines for those parties who opt for having two-tier/ multi-tier arbitration clauses in their contracts could help mitigate

WHO IS AN EXPERT WITNESS? Expert witnesses are specialists with extensive knowledge in a specific field, brought into legal proceedings to provide professional opinions that aid court decisions. These experts can range from medical professionals to forensic specialists and financial analysts. Expert evidence is information or opinion given by an expert in any field that person is specialized in, which comes out to be evidence in any matter. They play a crucial role in enhancing the court’s understanding of technical or specialized issues and their interpretation in a legal context. LEGAL FRAMEWORK FOR EXPERT TESTIMONY The Bharatiya Sakshya Adhiniyam, 2023 (BSA) serves as the primary legislation governing expert testimony in India. The Supreme Court has provided guidelines on assessing expert witness credibility, emphasizing the importance of impartiality and professional qualifications. Some Indian courts have adopted the Daubert standard for evaluating scientific evidence. However, the Judges retain significant discretion in weighing the value and credibility of expert testimony in their courtrooms. TYPES OF CASES REQUIRING EXPERT WITNESSES Expert witnesses play a critical role in the Indian Legal System and are utilized across a wide spectrum of legal cases in India. RELEVANCE OF EXPERT EVIDENCE In Ram Singh v. State of Uttar Pradesh [2024 INSC 128], the Hon’ble Supreme Court held as follows:“If the evidence tendered including that of eyewitnesses do not inspire confidence, the omission to seek ballistic opinion and examination of the ballistic expert may be fatal to the prosecution case.” IMPACT ON CASE OUTCOMES Expert witnesses can significantly influence case outcomes in the following ways: CHALLENGES & CONTROVERSIES Despite their importance, the use of expert witnesses is not without challenges and controversies. Stay tuned for more legal insights

– Supriya Julka, Senior Associate With the evolution of technology, businesses across the globe have adopted the inclusion of various tools and strategies to promote their products and services. An effective manner to promote a business/brand is the use of trademarks as keywords in the Google Ads program. This helps in achieving the target potential customers with the most relevant search terms. The article examines how courts across various jurisdictions have addressed infringement of trademark through the Google Ads Program and outlines the legal implications of using trademarks as keywords on the Google Ads platform. Google operates the popular Google Search Engine, with the function of enabling a user of the Google Website to search for relevant webpages, content, images, etc. on the internet by using keywords. As status quo bias exists amongst consumers, they tend to hit the top few results only displayed on the Google Search Engine list. This is the reason why businesses use various optimization tools and techniques, so that if a user puts keywords relating to their business, their own website is listed in the top few results. The Google Ads Program aids in the visibility of a business/brand in the search results. The subscribers of the program pay a fee to select words/phrases that they believe are likely to be used by customers on the Google Search Engine. By selecting keywords, the Google Ads Program offers the subscribers’ website/webpage or content to be displayed at the top as an “Ad” in the search results. The subscription fees for the Google Ads program are determined by bidding, in a manner that the more famous the keyword, the more the chance of it being bid by an entity through the Google Ads Program. Does Invisible Use of Trademark Amount to Infringement? The quintessential aspect of Trademark Law is to secure the real identity of any product/service. Section 29 of the Indian Trademarks Act, 1999 [“the Act”] deals with the infringement of a registered trademark when a person, not being a registered owner of a mark, uses in the course of trade a mark identical or deceptively similar to the goods or services of the owner of the registered trademark. The use of trademarks as keywords on the Google Ads Program is extremely beneficial to businesses as they help them reach potential customers who are searching for a specific product or service they offer. For instance, if a company sells cars, they might use the trademark “Audi” as a keyword in their Google Ads campaign. Thereby, when a consumer searches for Audi on Google, their ads will appear on the top of the search results. The issue of infringement of trademark through keyword advertising was for the first time dealt with in India in Consim Info Pvt. Ltd. v. Google India Pvt. Ltd., 2012 SCC OnLine Mad 3462. In this case, the Appellant had bid for the keyword “BharatMatrimony,” a registered trademark of a leading company in online matrimonial services. The Court opined that the registered mark is descriptive in nature in respect of the services provided. Moreover, the word “matrimony” is a generic word for all entities in this business. Thereby, giving monopoly to the mark “Matrimony” in the Google Ads domain will hamper competition. Hence, the Madras High Court nullified the liability of both the advertiser as well as Google. The jurisprudence of infringement of trademarks as keywords was developed in DRS Logistics Pvt. Ltd. & Ors. v. Google India Pvt. Ltd. & Ors., CS (Comm) 1 of 2017, wherein the suit was filed to restrain Google and other third parties from using the registered trademark “Agarwal Movers and Packers.” This case categorically held that keywords, even though invisible, direct internet traffic to the website of a competitor, confusing the consumers. Thus, the Delhi High Court opined that the use of such a keyword, which is a registered trademark, calls for action for infringement/passing off. Similarly, in Upcurve Business Services Pvt. Ltd. v. Easy Trip Planners Pvt. Ltd. & Ors., CS (COMM) 155 of 2022, the Defendants were using the registered trademark “UdChalo” on the Google Ads program. The Delhi High Court acknowledged that the Defendants were involved in the competing industry of travel services as that of the Plaintiff, and bidding on its registered mark would confuse the consumers who would use the services of the Defendants as they are displayed as a top result in the search engine. Hence, keywords, even though invisibly used, amount to infringement of trademarks. Looking through the lens of MakemyTrip v. Booking.com In a landmark order dated 27th April 2022, the Delhi High Court awarded an interim injunction in favor of MakemyTrip in the matter of MakeMyTrip India Pvt. Ltd. v. Booking.com B. V. & Ors., CS (COMM) 268 of 2022. Booking.com was restrained from using “MakeMyTrip,” a registered mark, as a keyword on the Google Ads Program, as that would result in infringement of trademark and will constitute passing-off action. This order elucidates the path of other increasing similar cases against the use of trademarks on the Google Ads program. Google has no rules against the bidding of brand keywords. Google’s advertising policies on trademarks as keywords explicitly state that “We do not investigate or restrict trademarks as keywords.” However, if a trademark is used in ad text, Google may restrict the use of such trademarks, provided the trademark owner submits a valid complaint. The Court opined that the Google Ads program setup forces the owner of the trademark to bid for its own trademark as a keyword, or else its competitors will be at better visibility for their goods and services on Google. Thereby, Google is in turn drawing money from the goodwill of a trademark owner by allowing its competitors to bid for the said mark as a keyword. The Court in this case expansively interpreted Section 2(2)(b) of the Act (“use” requires visual representation) read with Section 29(9) of the Act (spoken use of word marks can be infringement) and opined that invisible marks can constitute use.