GAR Know-how: Litigation (Exclusive Contributor: India)
Overview1. Describe the general organisation of the court system for civil litigation.India follows a common law system where the civil court structure is defined and governed by the Code of Civil Procedure 1908 (CPC). The hierarchy of civil courts begins with the civil judge (Junior division)/Munsiff courts followed by a civil judge (Senior Division), district courts at the district level. The supervisory jurisdiction over all district courts in a state vests with the High Court having jurisdiction over such state. At the pinnacle, is the Supreme court of India – which is the country’s highest constitutional court.The Judiciary is independent from the executive and legislature as enshrined under articles 50, 121 and 122 of the Constitution of India. Articles 124(2), 217 and 233 of the Constitution outline the procedure of the appointment of judges to the Supreme Court, high courts and district courts respectively. As per article 141, the law declared by the Supreme Court shall be binding on all courts. India follows an integrated judicial system, with no separation between federal and state courts. Consequently, the decisions made by higher courts are binding on the lower courts. Jury trials were abolished following the landmark case of K.M. Nanavati v State of Maharashtra, AIR 1962 SC 605. 2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.The CPC lays down the framework regarding civil litigation in India, outlining the provisions revolving around each stage of the litigation (ie, the jurisdiction, institution of suit, pleadings, framing of issues, evidence, judgment and decree). The underlying principles include due process, the right to be heard, equal treatment and the application of relevant laws and evidence. 3. Describe the general organisation of the legal profession.The legal profession and admission to the bar are regulated by the Bar Council of India, which is a statutory body established under section 4 of the Advocates Act 1961. A person with a valid degree in law has to submit an application for enrolment in his or her respective state Bar and then subsequently has to appear for a bar examination conducted on a pan-India basis. This bar examination was introduced in 2010, prior to which bar enrolment was based on an interview. India does not formally follow a split legal profession where barristers and solicitors have distinct roles. In certain parts of the country, the traditional practice of solicitors continues mainly as a matter of professional custom rather than statutory recognition. That said, law firms and legal chambers across India routinely engage in consulting or legal advising, which are traditionally considered part of a solicitor’s domain in bifurcated legal systems. There are no specific rights of audience for separate courts nor any specialised plaintiff or defendant bars. 4. Give a brief overview of the political and social background as it relates to civil litigation.In India, civil litigation is shaped by its democratic values and wide social and economic differences. The public’s attitude towards litigation is mixed – while it is recognised as a legitimate remedy, it is also often viewed as time-consuming, costly and uncertain due to procedural delays and a backlog of cases. However, with the rise of literacy rates and awareness of laws, there has been an increase in the number of cases filed over a period of time.The government is constantly reforming the practice structure to reduce unnecessary litigation and has introduced reforms such as mandatory mediation for commercial and other disputes, digital courts, online filing of cases, and setting up special commercial courts to speed up the process. Still, courts in India remain overloaded with cases due to various factors, including the slow pace of judicial appointments, slow disposal rates, compounded by judges’ reluctance to impose costs on parties causing delays. Jurisdiction5. What are the sources of law and rules governing international jurisdiction in civil matters?In India, the sources and rules governing international jurisdiction in civil matters primarily stem from domestic legislation such as the CPC and the Indian Contract Act, along with international treaties and customary practices. The CPC outlines the jurisdiction of Indian courts, including provisions for recognising and enforcing foreign judgments. International law principles, such as customary international law and general principles of law, also play a role. 6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?The jurisdiction of a court for a civil matter is to be adjudged from three key perspectives: (i) monetary, (ii) territorial and (iii) subject matter. Section 15 of the CPC provides that a suit should be instituted in the court of the lowest grade competent to try it. The state-wise/central legislation provides for the monetary or pecuniary jurisdictions of each court and these must be checked prior to institution. In determining the venue of the competent court, sections 16–20 of the CPC provide useful guidance. As a rule of thumb, suits may be filed where the defendant (or any of them) actually and voluntarily resides, carries on business or personally works for gain; and where the whole or part of the cause of action arose. Parties may submit all disputes to courts of a particular location; however, such court should otherwise have jurisdiction. Unlike arbitration, parties cannot confer jurisdiction on a court that otherwise would have no jurisdiction in the matter. 7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?Due to increased globalization and cross-border transactions and commercial contracts, Indian courts regularly deal with the disputes that have a nexus with other jurisdictions. However, Indian courts recognise and adhere to the principle of ‘forum non conveniens’ and would refuse to exercise jurisdiction (even if it could) on the basis that a more appropriate forum exists.8. How will a court treat a request to hear a dispute that is already pending before another forum?As per section 10 of the CPC, if a dispute is already pending before another forum, another court cannot entertain a parallel suit if it involves the same parties, the same cause of action, the same subject matter, and seek the same relief. In international matters, courts will duly consider whether they are the appropriate forum or court to adjudicate the dispute. Indian courts may refuse jurisdiction if a more appropriate foreign forum exists, taking into account various factors including the jurisdiction clause agreed to between the parties, stage and nature of the foreign proceedings and the existence of anti-suit injunction, before deciding whether to proceed with the matter. 9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?If a dispute could be subject to an arbitration agreement, the civil courts are mandated to refer the parties to arbitration as per section 8 of the Arbitration and Conciliation Act 1996 (Arbitration Act) on an application made to it. Such an application is required to be made by a party to the arbitration agreement or any person claiming through or under it, not later than the date of submitting its first statement of substance of the dispute. This provision has been enacted to ensure that an alternate dispute resolution mechanism, such as arbitration, is duly complied with at the earliest. Thus, even in interim proceedings, if an arbitration agreement exists, it must be brought to the judicial authority’s attention at the earliest.10. May courts in your country review arbitral awards on jurisdiction?The finding of an arbitral tribunal on its jurisdiction may be challenged at two stages – first, immediately after the tribunal rules that it does not have jurisdiction over a dispute (or part of it); and second, when a party’s challenge to the jurisdiction of the tribunal is unsuccessful, then, as part of the process for setting aside an award. In the first category, a statutory appeal is provided under section 37 of the Arbitration & Conciliation Act 1996. This jurisdiction is narrow and premised on the same grounds as those available for the setting aside of awards.In the second category, the party whose challenge has been unsuccessful has to await the outcome of the arbitration proceedings and may challenge the finding on jurisdiction along with the award. An award in India may be set aside only on the limited grounds listed under section 34 of the Arbitration Act. Further, in the case of international arbitrations to which Part I of the Arbitration Act applies, the ground of patent illegality is not available for setting aside the award. 11. Are anti-suit injunctions available?Indian courts have the power to grant an anti-suit injunction (ie, they can restrain a person or party from continuing a case in a foreign court). However, such injunctions are not routinely granted and the party seeking the injunction must demonstrate that the foreign proceedings are unjust. In Modi Entertainment Network v WSG Cricket Pte. Ltd (2003) 4 SCC 341, the Supreme Court laid down key principles to be applied by the courts to decide whether to grant an anti-suit injunction. Such an injunction may be issued when the defendant has submitted to the jurisdiction of the Indian court, and allowing the foreign proceedings to continue would cause injustice. While the courts must respect the authority of foreign courts, they can intervene if the foreign proceedings are oppressive or being pursued in an inconvenient forum. The existence of a jurisdiction clause, whether exclusive or not, is relevant, but not a deciding factor. The court will consider the broader content, including the true intention of the parties. Where the parties have agreed to a neutral foreign court, injunctions are generally not granted unless exceptional circumstances are shown. 12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity? IndiaThe principle of sovereign immunity is codified partially in section 86 of the CPC which provides that a foreign state cannot be sued in Indian courts without the prior consent of the central government. The immunity is not absolute. Such consent may be granted if the central government determines that the foreign state: has instituted a suit in the court against the person desiring to sue;by itself or another trades within the local limits of the court’s jurisdiction; or is in possession of immovable property situate within the court’s jurisdiction and is to be sued with reference to such property or money charged thereon; or has expressly or impliedly waived the privilege accorded to it by section 86. Further, a state’s assets are generally immune from execution by courts of another state. However, there are two exceptions (1) when the state waives immunity; and (2) when assets against which execution is sought are used for a commercial purpose. In India, to enforce a decree against the property of any foreign state, the written consent of the central government is essential. The immunity granted under section 86 of the CPC is also applicable to the ruler of a foreign state, any ambassador or envoy of a foreign state, any high commissioner of a Commonwealth country and any such member of the staff in the embassy/high commission as may be specified by the central government. Procedure13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?Section 26–35B of the CPC and Orders I to XX of the CPC deal with the procedure relating to the initiation of suit and proceedings thereafter. The court largely acts as a neutral adjudicator and relies on the parties to present their pleadings, lead evidence and advance arguments. While the onus of prosecution lies on the parties, the court ensures procedural discipline and a fair trial.14. What are the requirements for filing a claim? What is the pleading standard?As per the CPC, a plaint must state the material facts that are essential to the party’s claim. It is not necessary to plead the evidence; however, the plaint must be accompanied by the documents on which the party seeks to rely. In cases where the claimant relies on any misrepresentation, fraud, breach of trust, wilful default, undue influence and other circumstances, the claimant must state the full particulars. 15. What are the requirements for answering claims? What is the pleading standard? IndiaOrder VIII Rule 2 of the CPC outlines that a defendant must state in its written statement all the material facts showcasing that the suit is not maintainable, or that the underlying transaction is void or voidable in law. It also mandates disclosure of any specific defences such as fraud, limitation, payment or illegality, that may catch the other party by surprise or introduce new facts not mentioned in the plaint. The defendant must specifically deny all statements of fact (except damages) that it wishes to dispute. The courts usually frown upon generic or vague denials. 16. What are the rules regarding further briefs and submissions?Typically, after the filing of the plaint and written statements, pleadings are treated as completed. However, in practice and in accordance with the rules of the respective high courts, a plaintiff may be permitted to file a replication to address any new factual or other averments in a written statement. There is a growing practice of filing written submissions at the conclusion of trial in most of the metropolitan cities in India. Order VI Rule 17 of the CPC allows the parties to amend or alter their respective pleadings in a manner that is fair and necessary for effectively resolving the disputes between the parties. Generally, no amendment of pleadings is permissible after the trial has commenced (ie, once the witnesses have filed their witness statements). The only exception to this is if the civil court concludes that the party could not have raised the issue despite due diligence. Thus, this may include instances of subsequent facts that have a bearing on the claim or its defence. 17. To what degree are civil proceedings made public?Unless statutorily barred, proceedings are open to the public, meaning anyone can join the proceedings through video conference or one can go to the court and attend the hearing even if they are not the party to the matter. However, no tv cameras or photographers are allowed inside the courtroom. It is pertinent to note that the Supreme Court of India live broadcasts its proceedings on YouTube, ensuring wide public access. Further, daily orders and judgments of courts are also available through the internet, except in cases where the court specifically directs non-disclosure. Pretrial settlement and ADR18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?Indian courts refrain from rendering any assessment at the interim stage about any factual or legal issues in a dispute. However, when parties seek an injunction or stay in the matter to avoid the creation of any third-party rights, the court intervenes to prevent any irreversible damage caused to the rights of a party and decide by indulging themselves in the facts and legal issues of the dispute. Such injunctions are based on a prima facie view of the matter and do not or should not affect the final outcome. Under section 89 of the CPC, the courts are entrusted with the responsibility of encouraging parties to settle through out-of-court discussions and using ADR, especially when there exist elements of a settlement. Further, in commercial disputes, pre-litigation mediation is mandatory under section 12A of the Commercial Courts Act 2015 before initiating a commercial suit of specified value (ie, 300,000 Indian rupees). A party requiring urgent interim relief may seek exemption from the court for this requirement. Parliament has also enacted the Mediation Act 2023 (not yet fully in force), which also encourages the use of mediation prior to and during litigation. 19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?Yes, it is. In commercial disputes, pre-litigation mediation is mandatory under section 12A of the Commercial Courts Act 2015 provides for compulsory mediation before initiating a commercial suit of Specified Value (ie, 300,000 Indian rupees).Further, the Indian Parliament has enacted the Mediation Act 2023. Many of the provisions of this law are not yet in force. However, section 5 of the Mediation Act 2023 provides for voluntary mediation before the institution of any civil or commercial suit.Interim Relief20. What are the forms of emergency or interim relief?The courts have a wide power to grant interim relief. Such relief usually takes the form of temporary injunctions, including their specific types such as John Doe orders, Mareva and Anton Pillar orders/ injunctions. The court may pass an injunction to restrain a particular act or pass orders for staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff. Similarly, the courts also have the power to order attachment before judgment or require the defendant to deposit the amount in dispute. Other kinds of orders include orders for detention, preservation, inspection, etc, of the subject matter of the suit under Order XXXIX Rule 7 of the CPC. 21. What must a petitioner show to obtain interim relief?A petitioner must show that: (1) it has a prima facie case; (2) balance of convenience must be in its favour; and (3) the refusal of interim relief must lead to irreparable loss, to successfully obtain interim relief from the court. In addition, in specific cases such as an injunction against encashment of bank guarantees, the petitioner must also demonstrate that there has been a fraud of an egregious nature that vitiates the entire transaction or there is a case of special equities. Decisions22. What types of decisions (other than interim relief) may a court render in civil matters?Apart from orders on applications filed by a party (which are not for interim relief), a civil court would generally pass a decree, which conclusively determines the rights and liabilities of parties in relation to the subject matter of the suit. A court may pass preliminary decrees, final decrees and partly preliminary and partly final decrees. The key difference between these is that a final decree conclusively determines the controversy involved in a suit and disposes of the suit completely. However, a preliminary decree partly decides the right of parties to a suit without completely disposing of the same.23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?After conclusion of pleadings and taking into consideration relevant evidence and examinations conducted by both parties, courts may render a decision or judgment. It is common for a defendant to file a motion to dismiss under Order VII Rule 11 of the CPC. The grounds on which such a motion may be granted are:where the suit does not disclose a cause of action;where the relief claimed is undervalued, or the plaintiff fails to correct the valuation within the time fixed by the court; where the plaint is returned upon insufficiently stamped paper and the plaintiff fails to supply the requisite stamp-paper within the time fixed by court; andwhere the suit is barred by law. The CPC provides for (i) summary judgment (in the case of commercial disputes only) under Order XIII-A; and (ii) summary suits under Order XXXVII, which are primarily for the purpose of recovery of money based on an agreement, or bills of exchange, promissory notes, etc, and significantly curtail the defendant’s right to defence. 24. Under which circumstances will a default judgment be rendered?Order IX Rule 6 of the CPC provides that where a defendant fails to appear before the court despite being duly served, the court may order that the suit be heard ex parte. If the plaintiff is successful in establishing a prima facie case, the court may pass a decree in favour of the plaintiff. On the contrary, if such prima facie case is not made out, the court may dismiss the suit.25. How long does it typically take a court of first instance to render a decision?The duration of proceedings, depending on jurisdiction, can vary significantly based on the complexity of the case. With a view to improving India’s standing in Ease of Doing Business, various initiatives have been taken to curtail the time taken for the disposal of a suit. As per data made available by the Department of Justice in the Law Ministry for 2021, a court of first instance would render its decision on a commercial dispute on an average of 424 days in Delhi and 306 days in Mumbai. Parties26. How can third parties become involved in proceedings?The plaintiff is considered to be the dominus litus in India. Hence, it is the plaintiff’s choice as to who to sue for a particular cause of action. This said, under Order I Rule 10 of the CPC, the court is also entitled to add or delete parties. The failure to join a necessary party may lead to dismissal of a suit, because, in such an event, the dispute cannot be fully adjudicated. However, the courts generally tend to allow parties to also add such parties later. Fact-Finding and Evidence27. Describe the rules of fact-finding in your jurisdiction.India follows the adversarial system of justice where courts act as a neutral arbiter and adjudicate disputes based on relevant evidence presented by parties. The rules of fact-finding are contained in the CPC and the Bharatiya Sakshya Adhiniyam 2023 (ie, the erstwhile Indian Evidence Act 1872). Both parties are entitled to produce evidence in support of the disputed questions of fact. Such evidence may be in the form of witness statements, documentary records, tangible items and expert analyses. However, the determination of whether such evidence is relevant and admissible is a matter of law, to be decided by the court in accordance with the applicable rules of evidence. The court is responsible for assessing the weight to be given to each piece of evidence, considering factors such as its nature, credibility, internal consistency and corroboration with other presented evidence.28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?Indian courts primarily follow an adversarial system of justice where they determine the issues based on evidence and proof supplied to them by both parties. It is extremely rare that courts in India initiate any procedures for evidence. Indian courts follow a set procedure for trial as laid down under the CPC, which involves the recording of evidence from both parties. The parties are entitled to produce evidence in support of the disputed questions of fact. Such evidence may be in the form of witness statements, documentary records, tangible items and expert analyses. The court is responsible for assessing the relevancy and admissibility of evidence presented before it. Further, it will also determine the weight to be given to each piece of evidence, considering factors such as its nature, credibility, internal consistency and corroboration with other presented evidence.Having said that, it is important to showcase that the High Court of Delhi Intellectual Property Rights Division Rules, 2022 provide for a panel of experts to be maintained. The High Court’s Intellectual Property Division is empowered to seek the assistance of such experts in technical matters such as infringement analysis and patent claims. Generally, such experts would be appointed with the consent of the parties.29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?The Commercial Courts Act 2015 has amended the CPC insofar as it applies to commercial disputes to provide a continuous duty of document disclosure on the parties. In commercial disputes, a party is obliged to file all documents in its possession, possession and control pertaining to the suit. Additionally, both plaintiff and defendant are required to furnish a declaration on oath that all documents in its power, possession, control or custody of the defendant, pertaining to the facts and circumstances of the proceedings have been disclosed and copies thereof annexed and that such party does not have in its power, possession, control or custody or any other documents.In non-commercial disputes, the party is obliged to file the documents on which it seeks to place reliance. It may also seek discovery and production of documents in the power, possession and control of a counterparty and/or third parties. In the event that relevant evidence is withheld by a party, a court may draw an adverse inference in accordance with the principles laid down in the Bharatiya Sakshya Adhiniyam 2023.30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?The examination in chief of a witness is generally conducted in writing in the form of a sworn affidavit. This may be supplemented by further questions in examination-in-chief, followed by a cross-examination and questions from the court. Before giving evidence, witnesses are required to take an oath or affirmation to speak the truth. The examination of witnesses follows a structured process. Examination-in-chief is conducted by the party calling the witness, which is followed by a cross-examination by the opposing party, and re-examination (if necessary) by the calling party to address matters arising during the cross-examination. Witness evidence can be direct (eyewitness accounts of the event) or circumstantial (evidence of facts from which the event can be inferred). In cases requiring specialised knowledge, expert witnesses are called upon to provide opinions on specific issues, such as medical professionals, forensic scientists and technical experts. A party may request a witness to be declared hostile if their testimony contradicts their previous statements or otherwise harms the calling party’s case. This declaration allows the party to cross-examine their own witness. Indian courts have time and again made it clear that witness coaching is impermissible, which adversely affects the accuracy of the evidence. 31. Who appoints expert witnesses? What is the role of experts?Parties are free to present expert witnesses before the court. Expert witnesses may be appointed by the court in cases where this special knowledge of the expert may aid the courts in delivering the ends of justice and determining the issues framed. In cases where a court has to form an opinion as to a point in foreign law, science or art or questions as to the identification of handwriting, it may call for the opinion of an expert. The expert is required to provide testimony on the subject matter of their expertise in the form of a report. 32. Can parties to proceedings (or a party's directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party's failure to testify or act as a witness?Yes, parties to proceedings or their directors and officers can act as witnesses. In Indian law, there are no preclusions as to who a competent witness can be. Section 124 of the Bharatiya Sakshya Adhiniyam 2023 states that all persons shall be competent to testify unless the court feels that the person is not able to understand the questions put to them. If a witness fails to assist the court with their testimony, the court may consider all the available circumstances to draw an adverse inference. 33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?Foreign judgments are not binding on Indian courts but hold persuasive value. Thus, Indian courts may consider foreign judgments to gain insight into the interpretation and application of foreign law but will prioritise Indian statutes and judicial precedent for this purpose. Foreign-language documentation can be introduced into court proceedings by providing a certified translation. Once translated, such document is subject to the same rules of admissibility as any other document under the Bharatiya Sakshya Adhiniyam 2023. These include considerations of relevancy, authenticity and best evidence rule.34. What standard of proof applies in civil litigation? Are there different standards for different issues?Generally, the standard of proof in civil litigation in India is of ‘preponderance of probabilities’, which requires a party asserting a fact to demonstrate evidence that is more likely to be true than not. The standard adopted is that of a prudent person. Therefore, the court must either believe a fact to exist or in light of the evidence presented, consider its existence so probable that any prudent person, in any other transaction, would act upon the assumption that it exists. In other words, the court weighs the evidence before it and rules in favour of the party whose version of events is more probable. The standard of a prudent person remains static in cases of any kind. Thus, the degree of proof required to establish more serious allegations of fraud, forgery, corruption and gross misconduct would also demand a greater degree of certainty than ‘preponderance of probabilities' but falls short of the ‘beyond reasonable doubt’ standard applicable in criminal cases. Appeals35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?There are two statutory appeals for civil proceedings under the CPC (ie, first appeal and the second appeal). While in a first appeal, the appellate court may revisit any aspect, including factual aspects, a second appeal is restricted to substantial questions of law. Order XL of the CPC contains the rules and procedures of first appeals and second appeals. Besides the above, the Constitution of India provides the remedy of a Special Leave Petition to the Supreme Court of India. This is routinely used by parties in litigation. Besides appeals, the civil courts also have the power of review and revision in respect of their judgments. 36. What aspects of a lower court's decisions will an appeals court review and by what standards?As per the CPC, the court in a first appeal may examine questions of facts as well as law, whereas while hearing a second appeal the appellate court may only look at substantial questions of law and accordingly checks if the lower court(s) have correctly applied the said law into the facts of the case. It is upon the court in an appeal to take into consideration the correct interpretation of the law as per applicable precedent and then apply the same into the merits of the case. 37. How long does it usually take to obtain an appellate decision?Although the CPC prescribes a 60-day time limit for disposal of an appeal from the date when the memorandum of appeal is filed, such time-lines are directory and not mandatory. Similarly, for commercial disputes, the Commercial Courts Act 2015 states that the appellate division should endeavour to dispose of appeals within a period of six months from filing. The anecdotal experience would indicate that Indian courts may take substantial time taking consideration the jurisdiction, the type of case and the complexity of the legal issues. Role of Domestic Courts In Arbitration Matters38. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations? IndiaThe domestic law of arbitration viz the Arbitration & Conciliation Act 1996 (1996 Act) applies when parties have specifically agreed (through an arbitrational agreement) for the resolution of disputes through arbitration governed by Indian law. However, the 1996 Act does not equally apply to international arbitrations. The seat of arbitration determines the law applicable. For instance, if the seat is in India, Part I of the 1996 Act would entirely apply, but if the seat is outside India, only certain provisions, namely, sections 9 (interim measures), 27 (court assistance in taking evidence), 37(1)(a) and 37(3) (both relating to appealable orders) of the 1996 Act will apply unless the parties agree otherwise. The High Court of Delhi in Union of India v Vodafone Group Plc United Kingdom and Another (2018) SCC OnLine Del 8842 has held that the 1996 Act is not applicable to investor-state arbitrations. This has led to uncertainty in the minds of investors. 39. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.The legislative policy is that of minimal court interference and the courts have generally adopted a hands-off approach. However, Indian courts may play a role in the following instances prior to, during and after an arbitration – if Part I of the Arbitration Act applies: section 11: provides for the appointment of the arbitrator/ tribunal on the failure of the agreed procedure; section 9: interim measures ;section 29a: for extending the time-limit for making an award; section 34: seeking the setting aside of an award; andsection 36: enforcement of an award. In so far as the arbitrations seated outside India are concerned, the parties may be able to approach courts in India for obtaining interim relief, unless the parties expressly exclude the application of Part I of the Arbitration Act. 40. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?Enforcement of a domestic awardSection 36 of the Arbitration Act provides for direct enforcement of an arbitral award without converting it into a rule of the court. Thus, an award becomes enforceable as soon as the limitation period under section 34 expires. Further, through legislative amendments to the Arbitration Act in 2015, the Indian Parliament has clarified that the filing of an application for setting aside of an award would not automatically stay the enforcement of the award. As a result of this amendment, one routinely sees that the party challenging the award is required to deposit the sum under challenge before the court and the same may be withdrawn by the counterparty on furnishing adequate security. Enforcement of a foreign awardSection 48 of the Arbitration Act lays down conditions for refusing the enforcement of a foreign award, on the request of a party if it establishes any of the following:the parties, under the law applicable to them, are under some incapacity (example: a party was minor or of unsound mind or did not consent to the contract freely);the arbitration agreement is invalid under the law that the parties have subjected it to or, in the absence of such agreement, under the law of the place of arbitration;the party did not receive proper notice of the appointment of arbitrator(s) or arbitral proceedings or was unable to present its case;the dispute between the parties was beyond the scope of reference to arbitration;the composition of the arbitral tribunal was not in accordance with the parties’ agreement, or in the absence of such agreement, the law of the place of arbitration;the award is not yet binding on the parties or has been set aside or has been suspended by a competent authority of the country, or under the law of which the award was passed;the subject matter of the dispute was not arbitrable; andthe enforcement of the award is opposed to public policy, where the scope of public policy is restricted to the making of the award induced or affected by fraud or corruption.Extent of substantive reviewAlthough courts under section 34 of the Arbitration Act do not undertake an appellate review of the award, they can review it on merits and set it aside to the limited extent of it being contrary to India’s public policy. While jurisprudence on the scope of public policy continues to evolve, the ground of public policy can be invoked on the following substantive grounds:Circumstances where the award is affected by fraud or corruption;Circumstances where the award goes against the notions of justice or morality.Patent Illegality, ie, where an award is based on an incorrect interpretation of law, or fact and the error is apparent on the face of the record. For example: The reasoning for the award is based on irrelevant or inadequate evidence such that no reasonable person could have arrived at those findings leading to perversity or irrationality; or where the arbitrator has construed the contract unreasonably or arbitrarily. Special proceedings41. Are class actions available?Section 245 of the Companies Act, 2013 provides the framework for a class action lawsuit by minority shareholders of a company if the company's affairs are being conducted in a manner prejudicial to the interests of the company or its stakeholders. In the past few months, there have been heightened discussions regarding such actions as the National Company Law Tribunal has admitted a class action titled Ankit Jain v Jindal Poly Films Limited, rejecting the arguments against the admissibility of such an action. An appeal before the National Company Appellate Law Tribunal has also been rejected.42. Are derivative actions available?Derivative action in India comes from two types of causes of actions – (1) an action to compel the corporation to sue; and (2) an action brought forth by the shareholder on behalf of the corporation. Derivative actions are available in corporate and bankruptcy proceedings before the National Company Law Tribunal and the National Company Law Appellate Tribunal. 43. Are fast-track proceedings available?Fast-track proceedings are available in domestic arbitration under Section 29B of the Arbitration & Conciliation Act, 1996. These proceedings require the consent of parties to appoint a sole arbitrator, dispense with oral submissions (and thus, be documents only). Similarly, summary suits under the CPC are intended to be fast-track proceedings.In India, fast-track courts (FTC) have been set up to tackle judicial backlog in civil and criminal matters that have been pending for over five years. Over time, the focus moved from long-drawn out civil and criminal cases to heinous crimes such as rape and sexual assault. Fast Track Special Courts, a special category of FTCs, were set up primarily to expedite trials related to sexual offences against women and children.44. Is it possible to conduct proceedings in a foreign language?No, court proceedings cannot be conducted in any foreign language. Article 348(1) of the Indian Constitution provides that all proceedings before the Supreme Court and all high courts in India shall be in English. However, article 3482(2) provides that the governor of a state may, with the prior consent of the President, authorise the use of Hindi or any other regional language that may be used for any official purposes of the state, in the proceedings before the high court. Further, section 137 of the CPC empowers the state government to determine the language of district courts, in view of the regional linguistic diversity across India.Effects of judgment and enforcement45. What legal effects does a judgment have?A judgment or decree conclusively determines the controversy involved in a suit and disposes of the suit completely. Typically, only the parties to a suit are bound by judgment; however, where the decree involves issues such as declaration of a party’s title to certain property, such a decree may also be binding on third parties. Under section 11 of the CPC, once a matter is finally decided by a competent court, no party can be permitted to re-open it in a subsequent litigation. The principle of res judicata (section 11) makes the decree or judgment final and binding whether on a question of fact or question or law as between the parties to the suit. 46. What are the procedures and options for enforcing a domestic judgment?A domestic decree can be enforced by filing an execution petition under Order XXI of the CPC before courts of competent jurisdiction. The courts shall then ask the judgment debtor to show cause as to why the decree should not be executed. If no reasonable cause is shown, the courts will recognise and enforce the decree. Section 51 of the CPC provides various methods of executing a decree: attachment and sale of assets, delivery of assets, arrest and detention, appointment of a receiver, issuance of garnishee orders or any other manner. The limitation period for executing a decree is generally 12 years from the date of judgment.47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?A foreign judgment can be enforced in India under specific circumstances outlined in section 13 and 44A of the CPC. As per section 44, enforcement depends primarily on whether the judgment originates from a reciprocating territory or not. Judgments from reciprocating territories are directly enforceable through execution proceedings, while judgments from non-reciprocating territories require filing a fresh suit in India. In such a suit, the foreign decree would be a relevant piece of evidence. Crucially, all foreign judgments must meet the conditions of section 13 to be considered conclusive and enforceable, meaning they must be from a competent court, decided on merits, not violate international or Indian law, comply with natural justice, not be obtained by fraud, and not sustain a claim based on a breach of Indian law. Costs and Funding48. Will the successful party's costs be borne by the opponent?The general principle for recovery of costs is that the losing party shall indemnify the successful party for the expenses incurred by it in defending its rights. However, this is not an absolute rule. Section 35 of the CPC grants courts the discretion to determine who shall pay the costs, out of what property they shall be paid and to what extent. If the court deviates from the general rule and does not order the losing party to pay, it must record reasons in writing. 49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?Article 39A of the Indian Constitution provides that the state shall secure equal access to justice for all citizens by providing free legal aid through suitable legislation or schemes. The National Legal Services Authority and the State Legal Services Authority are responsible for formulating policies and overseeing their implementation at the national and state levels, respectively. A party (which meets the criterion) can avail free legal aid under the Legal Services Authorities Act 1987. The Supreme Court Legal Services Authority, various high court Legal Services Authorities and District Legal Services Authorities provide free legal aid across courts at all levels to eligible applicants. A party may also seek the permission of the court to sue as an indigent person and claim exemption from filing of court fees. Other options to avail funding include third-party funding agreements and crowd-funding campaigns. 50. Are contingency fee arrangements permissible? Are they commonly used?Rule 20 of the Bar Council of India Rules on Professional Conduct prohibits advocates from charging a fee contingent on the outcome of litigation from a client. This is essentially to prevent advocates from acting for financial gain, and is premised on the construct that such arrangements are not in the public interest.51. Is third-party funding allowed in your jurisdiction?There is no prohibition on third-party funding in litigation in India, except that an advocate is prohibited from funding a client’s litigation. In the absence of legislative frameworks to govern third-party funding, parties would be bound by the terms of their contract. Courts have allowed third-party funding agreements as long as they are not extortionate or violate public policy or shock the court’s conscience. Some domestic arbitral institutions, such as the Mumbai Centre for International Arbitration, have introduced rules for the disclosure of third-party funding in arbitrations.52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?Although the Second Schedule under the Supreme Court Rules 2013 and various high court Rules, such as Rules 1, 1A, 2, 2A and 2B of Chapter 16 of the Delhi High Court Rules, provide an upper limit of fee payable to advocates in different suits, the same are not strictly enforceable. Thus, there are no mandatory fee scales that lawyers in India must follow. Authored by : Akshat Goyal, Garima Sharma and Mani GuptaArticle published at https://globalarbitrationreview.com/insight/know-how/litigation/report/india#E9E7F5E9C61F10ED85C1D61EFE787C3F0886C531
