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Dispute Resolution


Indian Judiciary

India has a well-established and independent judiciary system. Since India follows a common law system, judiciary plays a significant role for evolution of law of the land.

The Supreme Court of India in New Delhi is the highest Court of Appeal. Each State has a High Court along with subsidiary District Courts, which enforce the rule of law and ensure fundamental rights of citizens, guaranteed by the Constitution of India. India has a three-tier court system with a typical Indian litigation starting from a District Courts and reaching its logical conclusion in the Supreme Court of India. The High Courts along with the various State level forums, situated mostly in the State capitals, constitute the middle rung of this three-tier system.

District level courts are the courts of first instance in dispute resolution except in cases where they are prevented from being so by virtue of lack of pecuniary jurisdiction. Cases involving violation of fundamental rights are filed in respective High Court or Supreme Court. A civil, criminal or commercial dispute may be filed in the court having territorial jurisdiction and depending upon level of crime or pecuniary jurisdiction. The place of cause of action and the place of residence of the defendant are the necessary determinants of territorial jurisdiction.

A number of special courts and tribunals have been constituted in India to deal with specific disputes:
  • Various Tax Tribunals
  • Company Law Board
  • Securities Appellate Tribunal
  • Insurance Regulatory Authority of India
  • Debts Recovery Tribunals
  • Consumer Dispute Rederssal Forums
  • Industrial Tribunals
Under Article 141 of the Constitution of India, every judgment delivered by the Supreme Court becomes the Law of the Land to be followed by all the other lower courts.

Here are few links to judicial bodies in India:

Supreme Court of India – http-//supremecourtofindia.nic.in
All Indian Courts - http-//indiancourts.nic.in
All India Cause List - http-//indiancourts.nic.in
Income Tax Appellate Tribunal - http-//itat.nic.in
Excise, Service Tax and Customs Appellate Tribunal - http-//cestat.gov.in
Company Law Board - http-//clb.nic.in
Income Tax Authority for Advance Ruling - http-//aar.gov.in

Dispute Resolution

The awards and decrees of the Indian courts are sacrosanct. However, Section 13 of the Code of Civil Procedure 1908 (CPC) lays down that a foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in few cases.

Section 44A of the CPC provides for execution of decrees passed by courts in a reciprocating territory. It lays down that where a certified copy of decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as it has been passed by the District Court. Government of India has notified Singapore, Malaysia, UK, New Zealand, Hong Kong and Fiji as reciprocating territories. For other countries, a foreign decree may be executed in India by filing a suit in the District Court on the basis of the said decree praying inter-alia, for the execution of the decree passed by the foreign court.

Alternative Dispute Resolution

Arbitration and Conciliation Act 1996 based on the UNCITRAL model law provides for resolution of a commercial dispute expeditiously for:

International commercial arbitration, where the seat of arbitration is India and
Enforcement of international commercial arbitration agreements and awards under the New York Convention and Geneva Convention where the seat of arbitration is outside India.

The Arbitration and Conciliation Act, 1996 also provides for international commercial arbitration whether contractual or not, considered as commercial under Indian law and where at least one of the parties is a foreign national or incorporated in a foreign country.

The Supreme Court of India in the has held that “The foreign award is already stamped as a decree”. The party holding a foreign award can straightaway apply for the enforcement of the same and while enforcing the award, the Court has to proceed in accordance with Arbitration and Conciliation Act. Once the Court decides that the foreign award is enforceable, it can proceed to execute the same. A foreign award can be executed in India by filing an Execution Application after a foreign arbitration award is held to be enforceable by an Indian Court of competent jurisdiction. In view of the apex court in the above case, a foreign award is deemed and does not become a decree after decision of the court as regards its enforceability.

The domestic award is also enforced Arbitration and Conciliation Act which states that Arbitral Award shall be enforced under the Civil Procedure Code in the same manner as if it were a Decree of the Court.

Dispute Resolution by Investment Treaties

India has entered into bilateral investment treaties with a number of countries including Australia, France, Japan, Korea, UK, Germany, Russian Federation, The Netherlands, Malaysia, Denmark, OPIC of US. Each agreement makes provision for settlement of disputes between an investor of one contracting party and an investor of the other contracting party through negotiation, conciliation and arbitration.

India is a party to the Convention establishing the Multilateral Investment Guarantee Agency (MIGA), which provides for settlement of disputes between State parties to the Convention and MIGA through negotiation, conciliation and arbitration.