Litigation and enforcement in India: overview

A Q&A guide to dispute resolution law in India.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.

This Q&A is part of the global guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-guide.

Sameer Parekh, Parekh & Co.
Contents

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to resolve large commercial disputes?

The main disputes resolution methods in India are court litigation and arbitration. Most large commercial contracts (particularly in the field of infrastructure, financial transactions and trading) contain arbitration clauses. However, many large contracts do not contain an arbitration clause, and the parties must use the courts for the resolution of their disputes. Commercial disputes in India are referred to the Commercial Courts.

India has a common law system. Therefore, the system is adversarial and both parties must prove their case. The standard of proof in civil matters is on a "preponderance of probabilities", while the criminal courts apply a standard of proof "beyond reasonable doubt".

Additionally, various alternative disputes resolution methods are used within arbitration/court proceedings, such as conciliation, mediation, dispute adjudication board, and so on.

 

Court litigation

Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?

The Indian federal law which sets out limitation periods is the Limitation Act 1963. Different limitation periods apply to various types of actions. Limitation periods range from one year to three years. A residuary/default limitation period of three years applies to all disputes that are not specifically provided for in the Limitation Act. However, certain tribunals/forums (such as the Consumer Courts) have their own limitation periods.

Limitation periods run from the date when the cause of action arises (that is, the date when the claimant becomes entitled to its claim). A mere exchange of correspondence does not extend the limitation period.

Court structure

3. What is the structure of the court where large commercial disputes are usually brought? Are certain types of dispute allocated to particular divisions of this court?

India has a unitary court system. The Supreme Court of India is the highest court for all disputes relating to both state laws and federal laws, and also decides on constitutional law issues.

Each state has a High Court, which is the highest court in the state (a few states also share a High Court). High Courts have certain original powers. Writ petitions relating to legal and constitutional rights can be filed directly before a High Court.

In addition, there are High Courts that were originally set up by a Charter (before India's independence) and continue to have original jurisdiction over civil disputes of a value exceeding a certain amount. The value of the claims must be above certain amount to be filed directly with chartered High Courts.

The subordinate judiciary (both civil and criminal) is below the High Court. Their structure varies depending on the state. Typically, there are district courts, munsif courts and other small causes courts below the High Court. High Courts hear appeals from both civil and criminal courts.

Commercial disputes are brought before the Commercial Courts. In accordance with the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015, Commercial Courts are constituted both at the level of the High Courts and the District Courts. Commercial claims must be filed before the appropriate Commercial Court, except where chartered High Courts have exclusive jurisdiction. Arbitration petitions that must be filed in the High Court are heard by a two-member bench.

The Commercial Courts must comply with strict timelines, including:

  • 30 to 120 days for filing a written statement.

  • 30 days for inspection of documents.

  • 15 days for admission/denial of documents.

Thereafter, the first case management meeting must be held within four weeks from the filing of affidavit of admission/denial of documents. In this meeting, a further schedule will be fixed so that arguments are completed within a period of six months and the judgment is then pronounced within 90 days.

There are also many specialised tribunals, including the:

  • National Company Law Tribunal.

  • Competition Commission and Competition Appellate Tribunal, for anti-trust/competition issues.

  • Telecom Regulatory Authority and Telecom Dispute Settlement and Appellate Tribunal, for telecom and broadcasting issues.

  • Copyright Board, for certain copyright issues.

  • Consumer Disputes Commission, for consumer issues including claims relating to insurance matters.

  • National Green Tribunal, for environmental matters.

  • Board for Industrial and Financial Reconstruction and Appellate Authority for Industrial and Financial Reconstruction.

  • Debt Recovery Tribunal and Debt Recovery Appellate Tribunal.

A number of large commercial disputes are submitted to these specialised tribunals.

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? What requirements must they meet? Can foreign lawyers conduct cases in these courts?

Rights of audience/requirements

Lawyers who are registered with the Bar Council of any Indian state have the right to appear before any court or tribunal in India. There are only a few rare cases where lawyers are not entitled to appear, for example in an enquiry for sexual harassment. However, in certain High Courts, only solicitors can file claims and petitions (although this rule has now been relaxed). Similarly, only advocates on record can file appeals and petitions with the Supreme Court of India, but any lawyer can appear before the Court if he is instructed by an advocate on record.

Foreign lawyers

Foreign lawyers cannot practise law in India. However, in certain cases, foreign lawyers have been allowed to argue a case with the permission of the High Court. It is not entirely clear whether a foreign lawyer can appear in arbitration proceedings or advise on commercial matters. However, there are many instances where foreign lawyers have been appearing in arbitration proceedings.

 

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?

Fees charged by lawyers are not fixed by statute or the courts, but by agreement between the lawyer and its clients. Contingency fees are prohibited and illegal in India. Any sharing of decree or award of damages with a lawyer is prohibited. Lawyers charge on the basis of either task-based billing or hourly rates. In litigation, the majority of lawyers use task-based billing, although hourly-based billing is used for foreign clients.

Courts and arbitrators can award costs. Arbitrators can award actual costs, but the courts can only award lawyers' costs on the basis of schedules maintained by the relevant High Court (see Question 22).

 
6. How is litigation usually funded? Can third parties fund it? Is insurance available for litigation costs?

Funding

Litigation is funded by the parties. Third parties that do not have an interest in the litigation or its outcome cannot fund litigation. Champerty and maintenance are illegal in India.

Insurance

To date, insurers in India do not offer insurance for litigation costs.

 

Court proceedings

Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any information kept confidential in certain circumstances?

Court proceedings are not confidential. Judgments or orders passed by the courts are public documents that are available on their websites. However, court proceedings are confidential in certain cases in order to protect the identity of the victim and/or the accused (for example, rape cases). Certain matrimonial cases are also heard in private. The publication of certain proceedings is not allowed under section 7 of the Contempt of Courts Act 1971, for which the court can hold in camera proceedings. Otherwise, all proceedings are open to the public.

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are there penalties for failing to comply?

The Indian Code of Civil Procedure 1908 contains detailed provisions on the pre-trial process, but these are rarely used. This process must be initiated by the parties. If an order is passed on an application by a party, then penalties can be imposed for non-compliance. However, it is not usual for penalties to be imposed in these cases. Typically, courts draw adverse inferences if parties do not comply with any order.

Main stages

9. What are the main stages of typical court proceedings?

Starting proceedings

Under the Indian Code of Civil Procedure 1908, a claimant starts proceedings by filing a plaint (the claim). The claimant must also pay the requisite court fees (unless they file a petition as a pauper). The court will then issue summons to the defendant.

Notice to the defendant and defence

When the suit is instituted, the court will normally issue summons to the defendant to appear and answer the claim, and to file a written statement of defence. Every summons is accompanied with a copy of the plaint. The summons is served either by an Officer of Court or by registered post with acknowledgement due. In the case of refusal to accept the summons, alternative methods of service of notice are available (including publication by pasting on the wall or newspaper publication).

Subsequent stages

The parties must file supporting documents along with the pleadings (that is, claim, written statement, counterclaim (if any) and replies). The documents that must be filed are documents on which the claim is based (for example, deed of lease, bill of exchange, letter of credit and so on). All other documents relied on in evidence must also be filed.

Parties can also file applications for various purposes (for example, interim relief, production of documents, service of interrogatories and so on). The second stage in proceedings is the hearing of these applications.

After the application stage, the matter proceeds to trial, which consists of the following stages:

  • Admission/denial of documents.

  • Oral evidence by way of affidavit.

  • Cross-examination.

  • Final hearing.

Summary proceedings are also available in certain cases (for example, where a debt is admitted).

 

Interim remedies

10. What actions can a party bring for a case to be dismissed before a full trial? On what grounds must such a claim be brought? What is the applicable procedure?

A case can be dismissed before a full trial in the following cases:

  • The case is barred by a statute of limitation.

  • The claimant has failed to pay the court fees.

  • The claimant has failed to disclose/show a cause of action.

  • The claim is barred by the law or a statute.

  • The parties are governed by an arbitration clause.

The defendant can file an application under the appropriate provisions for dismissal of the suit for failure to disclose a cause of action or on any other preliminary grounds (such as statute of limitation or res judicata). When the defendant is seeking dismissal on these preliminary grounds, the court can decide on this application at the initial stage or at the time of hearing final arguments, if evidence is required for deciding on the application. However, an application for dismissal based on the failure to disclose a cause of action is always decided at the initial stage, and for this matter, all facts stated in the claim are considered correct (demurrer). In certain states, such as Maharashtra, preliminary issues must be decided from the outset.

 
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes, on what grounds?

At any stage of the proceedings, the court can order the claimant to provide security for the payment of all costs incurred or likely to be incurred by the defendant, on its own initiative or on the defendant's application (Order XXV, Code of Civil Procedure 1908).

The court can order security for costs in cases where it appears that the claimant(s) are residing out of India and that they do not possess sufficient immovable property within India other than the property in suit. However, applications for security for costs are very rare.

 
12. What are the rules concerning interim injunctions granted before a full trial?

Availability and grounds

In deciding whether to grant interim relief, the court will consider the following factors:

  • Whether there is a prima facie case.

  • The balance of convenience.

  • Whether irreparable injury will be caused if interim relief is not granted.

Additionally, where appropriate, parties must show a danger that property will be destroyed, damaged or alienated.

In cases relating to injunction against a bank guarantee, other grounds must be made out, including fraud or irretrievable injustice.

Prior notice/same-day

Without notice interim injunctions are available if the court is convinced that an irretrievable and irreparable damage will be caused in the case the injunction is not granted. However, there are judgments ruling that no without notice interim injunction or stay can be ordered with respect to public and economic projects and schemes.

After an order for an interim injunction is passed, there are stringent provisions regulating the notice of the injunction to the respondent.

Mandatory injunctions

Both mandatory and prohibitory interim injunctions are available in India.

Rights of appeal

Interim orders are appealable under Order XLIII, rule 1 of the Code of Civil Procedure. An appeal can be made at any stage within the specified period of limitation. However, the appeal courts do not normally interfere with without notice and interim orders, and will normally hear these appeals after an interim order is confirmed or rejected, after hearing both sides.

 
13. What are the rules relating to interim attachment orders to preserve assets pending judgment or a final order (or equivalent)?

Availability and grounds

Interim attachment orders and other orders to preserve assets are available, including orders restraining the transfer of property.

Orders restraining the sale, transfer or alienation of property are governed by the general rules on interim remedies. Orders for attachment can be made where the defendant:

  • Does not provide security.

  • Is absconding or is likely to abscond.

  • May remove the property out of the court's jurisdiction.

The power of the court to pass interim attachment orders is discretionary.

Prior notice/same-day

Usually, courts give notice to the defendant before granting interim orders of attachment. However, the courts can grant interim relief without prior notice to the defendant if it appears that the object of granting the order would be defeated by the delay. Attachment orders are not usually passed without giving notice to the defendant to provide the necessary security.

Main proceedings

Interim attachment orders cannot be granted in support of a proceeding taking place in another country. However, interim orders can be sought with respect to arbitration proceedings taking place outside India.

Preferential right or lien

An attachment order is a temporary injunction relating to the disposal of property by the owner. The attachment order does not take away proprietary rights from the owner, but limit these rights. The order suspends the proprietary rights of the owners, for example, the right to alienate or sell the property, which cannot be exercised by the owner without the permission of the court. Therefore, attachment does not create any preferential right or lien in favour of the claimant over the attached assets.

Damages as a result

If attachment is obtained on valid and sufficient grounds, the claimant is not liable for any damages suffered as a result, as no person can be made liable for the acts of the courts. However, if the order was sought in bad faith, then appropriate orders can always be passed by the court to put the defendant in the position he would have been in but for the interim order.

Security

Generally, the claimant is not required to provide security, although the court can request the claimant to do so.

 
14. Are any other interim remedies commonly available and obtained?

Interim orders are sought by the parties in most commercial proceedings. Interim remedies vary depending on the nature of the dispute. Typically, interim remedies relate to preventing the defendant/respondent from:

  • Alienating or damaging property.

  • Infringing certain rights (for example, intellectual property rights) during the pendency of the proceedings.

 

Final remedies

15. What remedies are available at the full trial stage? Are damages just compensatory or can they also be punitive?

After the full trial, the court has the power to award the following remedies:

  • Money decree.

  • Specific performance.

  • Damages.

  • Permanent (prohibitory) and mandatory injunctions.

  • Various other statutory remedies.

In India, damages are compensatory and punitive damages (in terrorem damages) are prohibited by law.

Generally, the person claiming damages must prove the loss claimed. However, where contracts provide for liquidated damages that are genuine pre-estimates of the likely loss, these are awarded unless the party in breach shows that no loss was actually caused.

 

Evidence

Disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?

The parties must disclose all the documents that are under their control and in their possession which are relevant to the issue, in order to substantiate their claim or reject the claim of the other party. If disclosure is not sufficient, the other party can seek production of these documents. As India has an adversarial litigation system, parties must prove their own cases, and discovery and production orders are not commonly used. Order for the discovery and production of documents can be sought before and, in certain cases, after the trial starts.

Generally, in the event of non-disclosure, courts can draw adverse inferences.

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules allowing a party not to disclose a document?

Privileged documents

Under section 126 of the Indian Evidence Act 1872, all communications between a lawyer (including barristers and attorneys) and his client cannot be disclosed by the lawyer except with the client's express consent. However, a communication is not privileged if it furthers any illegal purpose or relates to any facts observed by the lawyer in the course of his employment which show that a crime or fraud was committed since the commencement of his employment.

Many communications are covered by "without prejudice" privilege, in particular offers made in an attempt to settle a dispute. These offers do not bind the parties that make the proposal. The parties can also agree that communications will not be produced before the courts. Privilege also covers certain information in the case of conciliation.

Other non-disclosure situations

There are certain other situations in which a person cannot be asked to give evidence (for example, in their relationship as husband and wife). Further, parties can agree that certain information is confidential. Confidentiality agreements can be enforced in court. Confidentiality can also be required during pre-contract negotiations or negotiations to settle a dispute.

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Oral evidence

Under recent amendments to the Code of Civil Procedure 1908, examination-in-chief is conducted by way of affidavits, while cross-examination is conducted orally.

Right to cross-examine

Once a witness has submitted his/her evidence by way of affidavit, counsel of the other party has the right to cross-examine this witness with respect to his/her affidavit. However, there is no procedure for cross-examination of witnesses before the trial or at the disclosure stage. Cross-examination can be conducted in court or before a local commissioner appointed by the court.

Third party experts

 
19. What are the rules in relation to third party experts?

Appointment procedure

Expert witnesses can be appointed by the parties or by the court, either on the request of the parties or on its own initiative.

There is no obligation on the parties to disclose expert witnesses at the disclosure stage. However, parties must file a list of witnesses after the admission/denial of documents.

Role of experts

Under the Evidence Act 1872, the opinions of experts are considered as relevant facts when a court must form an opinion on:

  • A point of foreign law or a point of science or art.

  • The identification of handwriting.

Under the Code of Civil Procedure 1908, the court can also commission any person it thinks fit to research and report on issues involving scientific investigations. The expert witness must give an independent testimony. However, in most cases, witnesses are appointed by the parties.

Right of reply

Court-appointed and party-appointed experts are subject to cross-examination. There is no right to cross-examine the expert at the disclosure stage or after the cross-examination is closed. However, the court can recall any witness if it considers this necessary in the interest of justice.

Fees

Usually, the party that appoints an expert bears the expert's fees. If the expert is appointed by a court, the fees are paid in accordance with an order of the court.

 

Appeals

20. What are the rules concerning appeals of first instance judgments in large commercial disputes?

Which courts

Under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance 2015, large commercial disputes are tried either by the Commercial Division of the High Court or a Commercial Court. The decisions of either court can be appealed before the Commercial Appellate Division of High Courts (comprising of two judges).

Grounds for appeal

A first appeal can be both on questions of law and facts. Further appeals are limited to questions of law, particularly appeals to the Supreme Court, which can usually only be filed after seeking permission to file appeal.

Time limit

An appeal must be made within 60 days from the date of the judgment or order (Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance 2015). A special leave petition can be filed before the Supreme Court within 90 days from the date of the judgment.

 

Class actions

21. Are there any mechanisms available for collective redress or class actions?

Class action suits can be filed when numerous individuals have a common interest in the same suit. Class actions are regulated by Order I, rule 8 of the Code of Civil Procedure 1908.

Class actions have been introduced by recent amendments to the Code of Civil Procedure and Companies Law. There have not been many legal developments in this regard.

 

Costs

22. Does the unsuccessful party have to pay the successful party's costs and how does the court usually calculate any costs award? What factors does the court consider when awarding costs?

Courts have a discretionary power to award costs. However, costs must be determined based on the schedule of fees fixed by the relevant court, and are not usually based on actual costs. Under amendments to the Code of Civil Procedure 1908, in commercial disputes, the court can determine and grant reasonable costs that are not covered by its schedule. These amendments also provide that the unsuccessful party must generally pay the successful party's costs. However, the court can deviate from the general rule for reasons that must be recorded in writing.

 
23. Is interest awarded on costs? If yes, how is it calculated?

No interest is awarded on costs.

 

Enforcement of a local judgment

24. What are the procedures to enforce a local judgment in the local courts?

Judgments can either be enforced by the:

  • Court of first instance under section 36 of the Code of Civil Procedure 1908 (CPC).

  • Courts executing the judgment under section 38 of the CPC (that is, in cases where the court of first instance lacks jurisdiction).

The powers of the court executing the judgment are set out in section 47 of the CPC.

 

Cross-border litigation

25. Do local courts respect the choice of governing law in a contract? If yes, are there any areas of law in your jurisdiction that apply to the contract despite the choice of law?

Indian courts respect the choice of governing law in a contract provided that it is not contrary to existing statutes or Indian public policy.

 
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?

Indian courts respect the choice of jurisdiction in a contract.

However, even if a contract provides that a foreign court has exclusive jurisdiction, Indian courts have jurisdiction to entertain a suit if the cause of action arises wholly or in part within the limits of its jurisdiction (section 20(c), Code of Civil Procedure 1908 (CPC)). Additionally, Indian courts have jurisdiction to try all cases of a civil nature, unless they are expressly or impliedly barred from doing so (section 9, CPC). Further, any agreement that absolutely restricts any party from enforcing its rights through recourse to the usual legal proceedings in the ordinary tribunals is void (section 28, Indian Contract Act 1872).

The Indian courts will respect an exclusive jurisdiction clause under the doctrine of forum non conveniens. However, there are cases where, on the facts, the courts will find that such a clause should not be enforced for good reasons.

If two or more courts have jurisdiction over the subject matter, an agreement of the parties that the disputes will be subject to one of these courts is valid, as it does not amount to an absolute ouster of jurisdiction. If an action relating to a contract with an Indian company which is governed by a foreign law is brought before an Indian court, the foreign law will have to be pleaded as an ordinary fact and proved by experts. There have been many cases relating to whether Indian courts have jurisdiction with respect to arbitrations conducted outside India. However, the recent amendment to the Arbitration Act has clarified that Indian courts have no jurisdiction over arbitrations with a seat outside India.

 
27. If a foreign party obtains permission from its local courts to serve proceedings on a party in your jurisdiction, what is the procedure to effect service in your jurisdiction? Is your jurisdiction party to any international agreements affecting this process?

India is not a signatory to any international agreement on service of process. However, India does not prohibit foreign parties from serving notices within India. In addition, notice of proceedings can be served on an Indian party through letters rogatory.

 
28. What is the procedure to take evidence from a witness in your jurisdiction for use in proceedings in another jurisdiction? Is your jurisdiction party to an international convention on this issue?

India is a party to the Hague Convention on the taking of Evidence Abroad in Civil or Commercial Matters 1965 (Hague Service Convention), which sets out methods by which evidence taken abroad can be used in other jurisdictions in civil and commercial matters. India has ratified the Hague Service Convention on 7 February 2007. However, no central authority appears to have been appointed and as such, the Convention has not been put into effect. Letters rogatory can still be used for seeking evidence from a witness on behalf of a foreign court.

Enforcement of a foreign judgment

29. What are the procedures to enforce a foreign judgment in the local courts?

Judgments from reciprocating countries

A reciprocating country means any country or territory outside India which the central government can, by notification in the official gazette, declare to be a reciprocating territory for the purpose of section 44A of the Code of Civil Procedure 1908. Under this section, judgments from reciprocating countries can be executed directly by Indian courts, and Indian judgments can be enforced directly in these countries. For example, the UK is a reciprocating country.

Judgments from non-reciprocating countries

The countries that are not on the list of reciprocating countries are non-reciprocating countries. Judgments passed in these countries are not enforceable in India. For the execution of these judgments, the party must initiate a fresh civil action based on the foreign judgment or on the underlying cause of action in the Indian domestic court that is competent to hear the matter. For example, the US is not a reciprocating country.

 

Alternative dispute resolution

30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction to settle large commercial disputes? Is ADR used more in certain industries? What proportion of large commercial disputes is settled through ADR?

ADR methods include:

  • Lok Adalat (people's court) (see below).

  • Arbitration.

  • Conciliation.

  • Mediation.

The parties usually opt for these ADR methods to avoid long trial proceedings before the courts.

Arbitration is the most popular and effective method for resolving large commercial disputes. In practice, a substantial number of commercial disputes are settled by way of arbitration. Arbitration is mostly used in construction disputes (for example, relating to the construction and operation of highways or hydro-electric power projects). Arbitration awards are binding on the parties unless set aside under section 34 of the Arbitration and Conciliation Act 1996.

Lok Adalat is a unique Indian system for resolving disputes. It is based on the traditional system of dispute settlement where a neutral person suggests a fair settlement. Once the parties agree to settle the dispute, the Lok Adalat passes an award which is binding in the same way as a court decree. The Lok Adalats are presided by a serving or retired judicial officer. They are set up under the Legal Services Act 1987.

Parties can also opt for conciliation, which is regulated by the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure 1908. Conciliation is not binding on the parties. Only a settlement agreement following conciliation is binding on the parties.

Parties usually consider mediation for commercial disputes, family disputes, land disputes and matrimonial disputes. Meditation is more or less similar to conciliation. There is no separate provision for mediation under the Arbitration and Conciliation Act 1996.

 
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can courts compel the use of ADR?

ADR does not form part of court proceedings. However, if a court considers that a dispute between parties can be resolved expeditiously through ADR methods, then the court can direct the parties to use ADR, provided that the parties agree.

The use of ADR is encouraged by section 89 of the Code of Civil Procedure 1908, which was inserted by section 7 of the Code of Civil Procedure (Amendment) Act 1999. The courts also encourage the parties to use ADR procedures in appropriate cases. The governments, including the Central Government, are committed to settle their legal disputes out of court through ADR methods whenever the other party agrees to it. In comparison to adversarial litigation, ADR is more simple, cheaper, quicker and less stressful for all parties.

Lok Adalats (people's courts), which are created by statute, can settle certain types of disputes (see Question 30).

Commercial arbitration is based on a contract under which the parties have specifically agreed to resolve their disputes by way of conciliation at first instance followed by arbitration, or by opting for arbitration directly.

 
32. How is evidence given in ADR? Can documents produced or admissions made during (or for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR confidential?

Under section 19(1) of the Arbitration and Conciliation Act 1996, arbitral tribunals are not bound by the Indian Code of Civil Procedure Court 1908 and the Indian Evidence Act 1872. Therefore, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. If the parties fail to agree on a procedure, the arbitral tribunal can conduct the proceedings in the manner it considers appropriate.

Generally, in arbitration proceedings, evidence is given by witnesses by way of written statements (affidavits). After the submission of affidavits, witnesses are cross-examined.

The Arbitration and Conciliation Act 1996 is silent on confidentiality in arbitral proceedings. However, the parties can agree to keep the proceedings and documents that are not in the public domain confidential.

Conciliation is governed by the Arbitration and Conciliation Act 1996 and proceedings are generally confidential. The conciliator and the parties must keep all matters relating to the conciliation proceedings confidential (section 75, Arbitration and Conciliation Act 1996). Confidentiality also extends to the settlement agreement, except where its disclosure is necessary for the purpose of enforcement. The court's assistance can be requested in recording evidence.

The information above also applies to commercial arbitration.

 
33. How are costs dealt with in ADR?

In the case of institutional arbitration, costs are dealt with in accordance with the rules of the institution. Arbitrators have discretion to award costs to the successful parties. In the case of domestic arbitration with seat in India, recent amendments have given states the powers to impose fees. This applies to commercial arbitration.

With respect to conciliation, the conciliator fixes the costs of the conciliation on termination of the conciliation proceedings (section 78, Arbitration and Conciliation Act 1996). The "costs" include reasonable costs relating to:

  • The fees and expenses of the conciliator and witnesses.

  • Any expert advice requested by the conciliator.

  • Any other expenses incurred in connection with the conciliation proceedings and the settlement agreement.

 
34. What are the main bodies that offer ADR services in your jurisdiction?

The main bodies that offer ADR services in India are the:

  • Lok Adalats (people's courts). Lok Adalats provide a summary procedure for helping parties to settle their disputes. Lok Adalats are set up under the Legal Services Act 1987. They are presided by retired or serving judicial officers. Once the parties settle their dispute before a Lok Adalat, the decision becomes final and binding. For more information, visit: www.legalserviceindia.com.

  • Indian Council of Arbitration (ICA). The ICA is a national specialised arbitral body under the initiatives of the Government of India and apex business organisations (such as the Federation of Indian Chambers of Commerce and Industry). The ICA promotes the amicable, quick and inexpensive settlement of commercial disputes by means of arbitration and conciliation, regardless of location. It also provides the commercial world with unrivalled and time-tested maritime arbitration services and provides education and training in ADR mechanisms. For more information, visit: www.icaindia.co.in.

  • Delhi International Arbitration Centre (DAC). The DAC ensures the effective settlement of disputes through arbitration. It was founded by the High Court of Delhi to secure an independent, transparent and professional institution. The Rules of the DAC encourage the quick and expeditious disposal of claims referred to the Centre. The emergency arbitration services cater the urgent needs of the parties by providing interim and conservatory measures. For more information, visit: www.dacdelhi.org.

  • India International Chamber of Commerce (ICC) - International Court of Arbitration. The International Court of Arbitration is the world's leading body for the resolution of international disputes through arbitration. The Court is one of the world's most experienced and renowned international arbitration institutions. Working closely with its Secretariat, the Court's primary role is to administer ICC arbitrations. It performs the functions entrusted to it under the ICC Rules of Arbitration and continually strives to assist parties and arbitrators to overcome any procedural obstacles that arise. For more information, visit: www.iccwbo.org.

  • London Court of International Arbitration (LCIA) India. LCIA India is the first independent subsidiary of the LCIA. Drawing upon the experience and expertise of the LCIA, one of the longest-established arbitral institutions in the world, it offers all the services offered by the LCIA in the UK, to ensure the expeditious, cost-effective and totally neutral administration of arbitration and other forms of ADR conducted under its auspices, whether according to the LCIA India's own rules, the UNCITRAL rules, or any other procedures agreed by the parties. For more information, visit: www.lcia-india.org.

 

Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to come into force?

Two acts have recently been passed with effect from 23 October 2015 (preceded by Ordinances), which are likely to have a major impact on the speedy settlement of commercial disputes in India. These are:

  • The Arbitration and Conciliation (Amendment) Act 2015, which includes amendments to the Arbitration and Conciliation Act 1996.

  • The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015, which provides for the creation of:

    • Commercial Courts; and

    • Commercial Divisions and Commercial Appellate Division of High Courts, for commercial disputes of a specific value.

These Acts have considerably speeded up Arbitration proceedings and also court matters in some cases.

Apart from this, there are other laws which have also undergone change recently. The company law tribunals are now functional. The laws relating to insolvency and bankruptcy have been codified.

 

Online resources

India Code, Legislative Department

W www.indiacode.nic.in

Description. This website provides access to Indian legislation.

Cases Status in Indian Courts

W www.courtnic.nic.in

Description. This website provides information on the latest status of cases either pending or disposed by the Supreme Court or any other High Court in India.

Lower House of Parliament (Lok Sabha)

W www.loksabha.nic.in

Description. Official website of the Lower House of Parliament.



Contributor profile

Sameer Parekh, Managing Partner

Parekh & Co.

T +91 9811 045775
F +01 1233 18315
E sameeer.parekh@parekhco.com

Professional qualifications. Advocate on Record, Supreme Court of India; Admitted to practice, India and New York, US

Areas of practice. Commercial litigation and arbitration; construction law; competition law.

Non-professional qualifications. BA (Hons); LLM, University of Pennsylvania

Languages. English, Hindi, Gujarati, Spanish


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