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Escrow: A lending hand in Indian business

Escrow is essentially a translation of the French word “escroue,” which refers to a scrap of paper holding a deed on behalf of the underlying transactions. People often think of it as a third-party account. It is a bank account where the asset value is held up until the completion of the particular transactional requirements. The escrow account holder is responsible for ensuring that the money deposited in the account is only released upon satisfaction and completion of the transaction’s stipulated conditions. As a result, it is a pass-through account in which the party or parties deposit the money and keep it there until the required conditions are satisfied.

Insight to escrow accounts

A financial tool known as an escrow account allows a third party to hold an asset or escrow funds on behalf of two other parties who are carrying out a transaction. Escrow accounts are used to store assets such as cash, securities, and money.

Although it is a widely used concept, up until now it has only been used in merger and acquisition agreements. Yet, as technology advances and the internet based economy grows, this tool is becoming more accessible as stakeholders from all industries use it for risk free and secure transactions.

Payment ecosystem created

Escrow based payments are not new; they have mostly been used in significant transactions, such as cross-border deals and mergers and acquisitions. Escrow account setup is a difficult process, but today’s advanced escrow service providers use innovative technologies to provide accessible platforms, democratizing the escrow service as a safe and secure payment method. Escrow payments is a new tool that adds an extra layer of transparency to the eco-system and fosters greater trust in the escrow account.

Escrow accounts may prove to be of great assistance to startups in protecting their transactions that are contingent in nature. Startups and rising firms can use escrow payment techniques to reduce risk for their specific purpose transaction instances like procurement, supply chain, professional services, etc. For startups, an escrow system promotes hassle-free, effective, and secure commercial transactions and aids in their smooth growth. The safety of the operations for the escrow services is also determined by having the government agencies conduct routine audits. The regulatory push surrounding escrow is moving in the right direction, necessitating the development of a more open ecosystem for online payments. More people need to be made aware of the escrow facility and how a temporary, tripartite financial arrangement aids in the worry-free, secure transaction of two parties.

Benefits for buyers and sellers

To protect both the buyer and the seller, an escrow account will be set up to hold the deposit. The good faith deposit will sit in the escrow account until the transaction closes. One can be confident that their money will only be released after the seller has carried out their end of the bargain, such as sending the goods, etc., if a business is on the purchasing side. The money is only released after the delivery deadlines specified in the escrow agreement that both parties mutually finalize, thereby protecting the buyer from any delays. The buyer’s money is safeguarded if the received items do not pass inspection.

Third party involvement in transactions

A third party is a person who takes part in a transaction but is not one of the principals and hence has a smaller stake in it. Typically, in a financial transaction, the buyer is more concerned with their investment and receiving items in a good condition than the seller is with receiving payment assurance. A digital payment method called “escrow” can be used to quickly meet these criteria’s. A buyer can use escrow to deposit money into an account at a bank that is overseen by a third party. The money from the escrow account is only released to the seller by this third party once all terms of the two parties’ financial agreements have been satisfied.

Some of the examples for third party in escrow transactions are real estate escrow companies and collection agency. To complete real estate transactions, a real estate escrow business serves as a neutral third party to retain the necessary deeds, paperwork, and money. On behalf of the buyer and seller, the firm places the money in an account. In order to secure payment of business debt, a corporation may employ a collection agency. It is usually stated in company invoices or original customer contracts when a collection agency may be employed to secure unpaid balances.

The bottom line

E-commerce has advanced significantly. As a result of the business’s exponential growth, these requirements have gotten bigger and now have a global position. Escrow accounts are now used in India to facilitate e-commerce and payments. This is particularly true if the payment is postponed for a while. Payment and marketplace aggregator nodal accounts are frequently used.

Escrow agreements will provide a detailed description of the terms and conditions between the parties concerned. As a result, using an escrow account or third-party account can let one complete a transaction between two or more parties without having to worry about any hassles. That is undoubtedly a crucial tool used in the current situation, which is full of uncertainties.

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BAR COUNCIL OF INDIA ISSUES CLARIFICATION TO AVOID MISAPPREHENSION AND MISINFORMATION

The Bar Council of India (“BCI”) on 10th March, 2023 had issued a notification whereby it allowed foreign lawyers and law firms to practice international law in India on a reciprocity basis. Since then, there has been a lot of confusion and misunderstanding related to the terms of the notification, and therefore, BCI has issued the current press release dated 19th March, 2023 as a clarification titled “True facts about BCI’s Rules regarding Entry, Rules and Regulations of Foreign Lawyers and Law Firms in India”.

The Bar Council reiterated that these rules would encourage multinational corporations and foreign commercial entities to use India as a venue for arbitration proceedings. 

Key considerations discussed in the current press release 

Following are the major points regarding which the press release has been issued so as to avoid any misapprehension and misinformation to the advocates and the general public in regards to the practice and scope of work of the foreign lawyers and law firms:

  1. They can advise clients on matters related to the foreign and international laws only;
  2. They can only perform advisory work;
  3. They can practice international law in the non-litigation area only and thus cannot appear before any court, tribunal, board or any other statutory or regulatory authority or forum except in arbitration cases where the foreign lawyer is permitted to appear for their client in international commercial arbitration;
  4. Entry is based on the principle of reciprocity, i.e., foreign lawyers of those country in which Indians can practice, can only advise in India.
  5. BCI looks to promote India as a venue for International Commercial Arbitration.

No effect on the Indian legal fraternity

The press release assures the Indian legal fraternity that the entry of foreign lawyers and law firms in India is not going to have an adverse effect on them and urges the Indian advocates to embrace the rules in the national interest. These rules emphasize on the importance of India becoming a preferred venue for the international arbitration proceedings and encourages that Indian advocates shall avoid resorting to London, Singapore, Paris, etc. as a venue to the arbitration proceedings.

The BCI Rules allowing foreign lawyers is limited in its scope to advice on foreign law and such advice can be given only to a person, firm, company, corporation, trust, society etc. who/which is having an address or principal office or head office in a foreign country.

Going forward

The notification dated 10th March, 2023 and the current clarification issued by BCI explicates that the rules have been issued in the backdrop of the BCI vs A K Balaji & Ors (Civil Appeal Nos.7875-7879 of 2015) wherein the Supreme Court has urged the government of India or the BCI to frame rules and regulations for the entry of foreign lawyers and law firms in India. Significantly, there has been hesitation from the legal fraternity in accepting these rules but the BCI has assured that it would no way affect the Indian advocates as the scope of work of the foreign lawyers and law firms is limited to advisory work.

Additionally, the rules also mention that foreign lawyers and law firms will only be able to represent their clients in international commercial arbitration. The rules framed and clarification issued thereafter have asserted on this, as through this, the BCI aims to enable India to be a preferred venue for international arbitration proceedings and thus become a hub for international commercial arbitration. Earlier, foreign parties to an arbitration were not allowed to bring foreign lawyers and law firms from their countries to India which made them prefer London, Singapore, and the likes as a venue.

The BCI said the rules were framed after the Supreme Court said in March 2018 that regulations should be put in place for the entry and management of foreign lawyers and law firms. The press release added that the BCI is “dedicated to defending the interests and well-being” of Indian lawyers.