India: Litigation & Dispute Resolution 2016

1 LITIGATION - Preliminaries

1.1 What type of legal system has your jurisdiction got? Are there any rules that govern civil procedure in your jurisdiction?

The Constitution of India is the supreme law of the land and forms the basis of Indian law and the parliamentary system of government – the Indian judiciary is independent of the executive and legislative branches of government.

India follows a common law system, largely derived from English common law, and being so, Indian court proceedings are adversarial in nature. India follows the doctrine of precedents and the law declared by the Supreme Court is binding on all other courts in India.

Civil procedure is governed by the Code of Civil Procedure, 1908 ("CPC"). The High Courts and Supreme Court have the power to frame their own rules of procedure.

1.2 How is the civil court system in your jurisdiction structured? What are the various levels of appeal and are there any specialist courts?

The civil court system:

The jurisdiction of courts in India is separate for civil and criminal cases, and other cases which may be required to be referred to specific statutorily set up tribunals, based on subject matter/specific statue.

The Supreme Court of India is the highest judicial forum and final court of appeal. Its role is that of a federal court and guardian of the Constitution. The Supreme Court has superintendence over all courts and tribunals in India. High Courts have superintendence over the lower courts in their respective states. The court of the first instance is the district court, except in the cases of the High Courts of Bombay, Madras, Calcutta and Delhi, which exercise original jurisdiction.

Appeals:

An appeal lies against every original decree unless precluded by statute and also against certain original orders as specified in the CPC. A first appeal, which is a matter of right, may be both on questions of fact and law. A second appeal lies to the High Court (unless precluded by statute), only on substantial questions of law. An appeal may be preferred to the Supreme Court against the judgment of a High Court if the High Court certifies that the case involves a substantial question of law of general importance or needs to be decided by the Supreme Court. Where no appeal lies, the Supreme Court may grant special leave to appeal from any order of any Indian court or tribunal where a substantial question of law arises which should be determined by the Supreme Court.

Specialist courts and tribunals:

Certain statutes exclude ordinary civil court jurisdiction and confer exclusive jurisdiction on statutory tribunals. Illustratively, the Debt Recovery Tribunal has jurisdiction over monetary claims by banks and financial institutions; the Company Law Board has exclusive jurisdiction in certain company matters (jurisdiction of which is to be transferred to the National Law Tribunal, once set up); and the Securities & Exchange Board of India (SEBI), and Securities Appellate Tribunal (SAT) have been set to protect interests of investors in securities and to promote the development of and to regulate the securities market.

Recently, the Government passed the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 ("Commercial Courts Act"), under which 'commercial disputes' of specified value (above Rs. 10 million), will be heard by specially constituted commercial courts.

1.3 What are the main stages in civil proceedings in your jurisdiction? What is their underlying timeframe?

A suit is commenced by filing a plaint in a court of competent territorial and pecuniary jurisdiction. The plaint must, inter alia, contain a brief statement of facts constituting the cause of action and the reliefs claimed.

After the filing of the plaint, the court issues a writ of summons calling upon the defendant asking him to appear before it and file a reply (written statement) to the claim. The defendant may also file a counter-claim or claim set-off of amounts claimed by the plaintiff. Thereafter, there occurs a formal discovery and disclosure process, pursuant to which the court frames issues for determination between the parties.

Ordinarily the plaintiff has the right to begin, and the other parties reply in turn. Evidence is presented by way of affidavits of evidence in chief, and the parties have the right to cross-examine witnesses. Thereafter, the parties make their closing arguments.

The courts have extensive powers to grant interim reliefs to parties at any time during the proceedings.

Litigating in India is known to be slow. A suit can take anything from five to ten years to reach trial, though interim relief can be obtained in a matter of days.

1.4 What is your jurisdiction's local judiciary's approach to exclusive jurisdiction clauses?

Indian courts recognise and give effect to exclusive jurisdiction clauses, subject to the condition that parties by contract cannot confer jurisdiction upon a court which is otherwise not competent to try the case. With respect to clauses conferring exclusive jurisdiction on foreign courts, the position is not so clear, and in most cases Indian courts do not completely give up their jurisdiction and may refuse to do so on the grounds of balance of convenience, the interests of justice and like circumstances.

1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs?Are there any rules on costs budgeting?

In India a court fee is levied for filing suits (dependent on the value of the claim), and other proceedings.

The principle that costs follow the event and that the losing party should pay costs to the successful party is recognised. However, costs are awarded at the discretion of the courts and in practice, the costs awarded are nominal. The new Commercial Courts Act amends provisions of the CPC to mandate that costs should follow the event and sets out the basis of awarding costs.

There are no rules on cost budgeting in India.

1.6 Are there any particular rules about funding litigation in your jurisdiction? Are contingency fee/conditional fee arrangements permissible? What are the rules pertaining to security for costs?

There is no law or regulation regarding litigation funding in India. Any contract to fund litigation would be covered by the Indian Contract Act, 1872, and would have to fulfil the criteria of a valid contract. Agreements to champerty or maintenance can be considered to be void if, according to their terms, they are held to be injurious to the litigant concerned and so against public policy.

Contingency fee/conditional fee arrangements with lawyers are not permitted under the Advocates Act, 1961.

A court may order security for costs to ensure satisfaction of any decree or order passed against a litigant if it appears that the defendant is likely to alienate his assets so as to defeat any decree or order that may be passed against him, or alienate the subject matter of the suit.

1.7 Are there any constraints to assigning a claim or cause of action in your jurisdiction? Is it permissible for a non-party to litigation proceedings to finance those proceedings?

While Indian law prohibits a mere transfer of a right to sue, as a general rule, transfer of actionable claims under a contract is permitted.

For the second part, refer to the question 1.6 above.

2 BEFORE COMMENCING PROCEEDINGS

2.1 Is there any particular formality with which you must comply before you initiate proceedings?

As a general rule there are no pre-trial formalities. In some courts/tribunals, an applicant is not permitted to move the court ex parte for reliefs, and must give notice to the respondent.

Where a suit is being filed against the Government or a public officer, the plaintiff is required to give two months' prior notice to the Government or the public officer in writing.

2.2 What limitation periods apply to different classes of claim for the bringing of proceedings before your civil courts? How are they calculated? Are time limits treated as a substantive or procedural law issue?

The law of limitation is governed by the Limitation Act, 1963. The period of limitation varies with the type of claim. Typically for civil actions, the limitation is three years; for claims on tortuous liability one year; and for suits by or on behalf of the Government, 30 years.

The period of limitation is calculated from the date on which the cause of action arises. In case of a continuing cause of action, it is computed from each day on which it accrues. Limitation may be extended in certain cases, such as admission or part payment of a debt by a debtor and proceeding bona fide in a court without jurisdiction.

The law of limitation is a procedural law and it does not create any substantive rights in the parties. Courts do not have the power to extend limitation; a suit filed after expiry of the period of limitation is bound to be dismissed even if limitation has not been taken up as a defence. However, delay in filing an appeal may be condoned for sufficient cause.

3 COMMENCING PROCEEDINGS

3.1 How are civil proceedings commenced (issued and served) in your jurisdiction? What various means of service are there? What is the deemed date of service? How is service effected outside your jurisdiction? Is there a preferred method of service of foreign proceedings in your jurisdiction?

A suit is instituted by filing a plaint. [See question 1.3 above.] Unless the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim, the plaint must be served on the defendant with a writ of summons and accompanied by a copy of the plaint within 30 days.

The summons may be served by hand delivery, registered post acknowledgment due, speed post, courier service or transmission (including by fax or electronic mail service), as approved by the court.

If service is attempted but refused by the defendant, the summons is deemed to be served. If the defendant is not available at his residence and it appears that he may not be found within a reasonable time, service may be made on any adult member of the family residing with the defendant. If it is still not possible to effect service, the serving officer may affix a copy of the summons on the exterior of the house, or apply to the court for substituted service by issuing an advertisement in the local newspaper.

Where the defendant resides out of India and has no agent in India empowered to accept service, the summons must be sent to the defendant at the place where he is residing and sent to him by hand delivery, post, fax or email. Channels for service have also been established through the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965, under which the originating process summons of a foreign court may be forwarded from the relevant court/judicial authorityto the Ministry of Law and Justice, Department of Legal Affairs, Judicial Section, Government of India. The Department of Legal Affairs then forwards the process to the relevant High Court having jurisdiction over the location where the defendant resides/carries on business.

3.2 Are any pre-action interim remedies available in your jurisdiction? How do you apply for them? What are the main criteria for obtaining these?

Indian courts have extensive powers to grant interim relief as a measure of protection to preserve some property or the rights of a party pending the final disposal of a suit. Interim relief can, however, only be sought as an aid to final relief and the initiation of a substantive action is a pre-requisite to applying for interim relief.

A party seeking interim relief should satisfy the court of the following three conditions:

1. there is a prima facie case in favour of the party seeking the order;
2. irreparable damage defeating the very purpose of the suit may be caused to the party if the relief is not granted; and
3. the balance of convenience lies with the party requesting the order.

In cases of urgency, a court may grant an interim order ex parte, without issuing a notice to the defendant.

In the case of arbitration, in cases of urgency, interim relief may be sought from the court prior to invoking arbitration (subject to the intention to invoke arbitration being clearly made out), and prior to constitution of the arbitral tribunal. Under the amended Arbitration & Conciliation Act, once interim relief is granted by a court the applicant must commence arbitration within 90 days of the order granting relief.

3.3 What are the main elements of the claimant's pleadings?

A suit is commenced by the filing of a plaint accompanied by an affidavit of the plaintiff attesting to the veracity of the facts mentioned therein, in a court of competent jurisdiction. The plaint must contain the following particulars:

1. name of the court;
2. name, description and address of the plaintiff(s) and the defendant(s);
3. the cause of action;
4. facts showing that the court has jurisdiction;
5. facts showing that the suit is filed within the period of limitation;
6. the relief claimed;
7. amounts and particulars of any set-off or relinquishment of a part of the claim, if any;
8. the value of the subject matter of the suit for the purposes of jurisdiction and of court fees; and
9. a list of documents referred to and/or relied upon by the plaintiff, which are relevant to the dispute and the claim.

3.4 Can the pleadings be amended? If so, are there any restrictions?

Pleadings can be amended at any stage of the proceedings, if allowed by the court. However, if the trial has commenced, no amendment will be permitted unless the applicant proves that in spite of due diligence, it did not have knowledge of the facts in respect of which amendment is sought and/or could not have raised the matter before the commencement of trial. Entirely new causes of action, inconsistent with the original claim, are not permitted.

4 DEFENDING A CLAIM

4.1 What are the main elements of a statement of defence? Can the defendant bring counterclaims/claim or defence of set-off?

The defendant has to file a written statement (his defence) containing a statement of the material facts but not the evidence by which they are to be proved. All facts which show that the suit is not maintainable or that the transaction is void or voidable, and all grounds of defence, must be pleaded.

The defendant must deny allegation of fact, failing which it may be taken to be admitted. Every ground of defence, set-off or counterclaim should be stated distinctly.

A defendant may set up by way of a counterclaim any right or claim in respect of a cause of action accruing to the defendant against the plaintiff, provided such counter claim does not exceed the pecuniary jurisdiction of the court.

4.2 What is the time limit within which the statement of defence has to be served?

The defendant must file his written statement within 30 days of service of summons, which is extendable by the court to 90 days, on sufficient cause being shown. Typically, the court may condone delay and grant further extensions, either with or without payments of costs.

4.3 Is there a mechanism in your civil justice system whereby a defendant can pass on or share liability by bringing an action against a third party?

A defendant may initiate third party proceedings against a non-defendant third party against whom the defendant has an indemnity claim or any other claim in respect of the subject matter of the suit. In such a case, the third party is effectively a party to the suit with the same rights of defence as a defendant and may put in a formal defence to the claim made by the joining defendant. If a third party is made a party to a suit, this third party may claim against any successive third parties in a manner similar to that which the defendant adopted to make him a party. Even if the plaintiff withdraws his suit, the defendant may nevertheless continue the proceedings against the third party.

4.4 What happens if the defendant does not defend the claim?

If the defendant does not enter an appearance or defend the claim, the court may strike out his defence and proceed ex parte as if it were an undefended suit. The defendant may, however, apply to set aside an ex parte decree if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing. The court may set aside the decree and fix the suit for re-hearing upon such terms as the court may deem fit, including payment of costs.

4.5 Can the defendant dispute the court's jurisdiction?

Yes, jurisdiction may be disputed on the grounds of territorial or pecuniary jurisdiction, or in relation to the subject matter of the claim (for instance if the claim should have been filed in a specially constituted court/tribunal). A defendant can also apply for rejection of a plaint if it discloses no cause of action or is barred by law.

5 JOINDER & CONSOLIDATION

5.1 Is there a mechanism in your civil justice system whereby a third party can be joined into ongoing proceedings in appropriate circumstances? If so, what are those circumstances?

Yes, at any stage of the proceedings, either upon application by a party or suo moto, the court can order a person to be joined in a proceeding as the plaintiff or the defendant. Joinder may be permitted if such person is a necessary party, i.e. one in whose absence no effective decree could be passed at all, or a proper party, i.e. one who ought to have been joined to enable the court to completely adjudicate upon all the questions involved in the suit.

If a person is neither a necessary or proper party, he cannot be joined to a suit and if wrongly joined, the suit can be dismissed as against him.

5.2 Does your civil justice system allow for the consolidation of two sets of proceedings in appropriate circumstances? If so, what are those circumstances?

There are no formal rules for consolidation of separately filed proceedings, though a court may hear them as a group and pass a common order in respect thereof.

5.3 Do you have split trials/bifurcation of proceedings?

In cases where the joinder of causes of action or defendant/plaintiff in one suit may embarrass or delay the trial or otherwise become inconvenient, the Court may order separate trials for all those causes of action.

6. DUTIES & POWERS OF THE COURTS

6.1 Is there any particular case allocation system before the civil courts in your jurisdiction? How are cases allocated?

The cases are allocated according to their respective pecuniary and territorial jurisdiction (each High Court has a different pecuniary jurisdiction).

The Chief Justice of every High Court decides the allocation of types of cases amongst the other judges while the Chief Justice of India decides the same for the Supreme Court judges.

The Commercial Courts Act provides for the formation of Commercial Courts which will exercise jurisdiction over "commercial disputes" having a value of at least INR 10 million.

6.2 Do the courts in your jurisdiction have any particular case management powers? What interim applications can the parties make? What are the cost consequences?

Courts have broad management powers and the power to frame specific rules of procedure (subject to the overall purview of the CPC). No specific rules for case management are mandated.

Indian courts have wide power to award interim reliefs, which would include applications for:

• arrest and attachment before judgment,
• injunction;
• appointment of a receiver; and
• security for costs.

Though, as mentioned above, it is recognised that costs should follow the event, it is unusual for costs to be awarded against a party who obtained interim relief which is subsequently vacated, for example obtaining an ex parte injunction which is subsequently set aside. Even if awarded, costs in such a case are likely to be nominal.

6.3 What sanctions are the courts in your jurisdiction empowered to impose on a party that disobeys the court's orders or directions?

The Contempt of Courts Act permits a court to sanction a party for disobeying its orders and directions, with simple imprisonment (up to six months and/or a fine up to Rs. 2000). Civil contempt is the wilful disobedience of any order of a court or wilful breach of an undertaking given to a court, while criminal contempt means the publication (whether by words, spoken or written) of any matter or the doing of any other act which scandalises, prejudices or interferes with court action.

6.4 Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? If so, in what circumstances?

Yes. A plaint can be rejected if it fails to disclose a cause of action, or if it is barred by law, or for undervaluation/non-stamping of the plaint. A suit can be dismissed for non-prosecution if the plaintiff fails to have issued or served a writ of summons for an unduly long period of time, or otherwise fails to proceed with his case. Where fraud is pleaded without any basis or particulars, a court can strike out those portions of the pleadings relating to the alleged fraud.

6.5 Can the civil courts in your jurisdiction enter summary judgment?

Yes. Summary proceedings may be filed by a plaintiff for monetary claims upon negotiable instruments, or for recovery of debt, or liquidated demand arising on a written contract, or on a guarantee.

Where a suit is instituted as a summary suit, the defendant is not entitled to defend as a right, but must apply to the court for leave to defend, and while so applying, be able to establish a prima facie defence in his favour. If he establishes a defence to the satisfaction of the court, the defendant is granted leave to defend and the summary suit is transferred to the list of commercial causes to be tried as an ordinary suit. Leave to defend may be unconditional, or conditional upon deposit by the defendant of the whole, or part of the claim amount. If no defence is made out, the court may pass summary judgment on the suit.

6.6 Do the courts in your jurisdiction have any powers to discontinue or stay the proceedings? If so, in what circumstances?

Yes, for sufficient cause, a court may stay a suit, if the subject matter in issue is pending before any other court in India between the same parties. Anti-suit injunctions may also be granted against parties restraining them from proceeding with specific suits or legal proceedings.

7 DISCLOSURE

7.1 What are the basic rules of disclosure in civil proceedings in your jurisdiction? Is it possible to obtain disclosure pre-action? Are there any classes of documents that do not require disclosure?Are there any special rules concerning the disclosure of electronic documents?

Each party is required to disclose such documents as they refer to and rely upon them in the proceedings. Parties can ask for discovery and inspection of documents and also put specific questions to another part in the form of interrogatories.

Documents which "of themselves evidence exclusively the party's own case or title", confidential communications between a client and his legal adviser and public office records relating to affairs of the state, if their production would be injurious to public interest, are treated as privileged.

The Evidence Act provides for evidence in relation to electronic records. [See question 8.2 below.]

7.2 What are the rules on privilege in civil proceedings in your jurisdiction?

The Evidence Act recognises legal professional privilege and no party can be compelled to disclose correspondence or documents exchanged between him and his legal professional advisor. Documents exchanged with a party's in-house counsel are not covered by privilege.

7.3 What are the rules in your jurisdiction with respect to disclosure by third parties?

Only parties to the proceedings can be compelled to make disclosure. A court may, however, on an application by a party, call upon a third party to produce documents/correspondence exchanged with the applicant.

7.4 What is the court's role in disclosure in civil proceedings in your jurisdiction?

The court has the power to direct production and disclosure of documents, to provide further and better particulars of any allegation made in a party's pleading and to answer interrogatories.

7.5 Are there any restrictions on the use of documents obtained by disclosure in your jurisdiction?

Documents disclosed can only be used to ascertain the nature of a party's case and the facts in issue. Deliberate non-disclosure/non-production of a document by a party can lead to an adverse inference being drawn against such a party.

8 EVIDENCE

8.1 What are the basic rules of evidence in your jurisdiction?

The burden of proof of a fact lies on the person who asserts that such a fact exists. A party is obliged to produce the best evidence in proof of a fact. A document should be proved by primary evidence, i.e. production of the document itself. Secondary evidence, such as a copy of a document or contents thereof, may be relied upon if the primary evidence is not available but some person with personal knowledge of it gives evidence in that regard.

8.2 What types of evidence are admissible, which ones are not? What about expert evidence in particular?

Evidence may be documentary (digital records and email communications are also admissible), or oral, through witness testimony. Oral evidence through witness testimony must be direct and hearsay evidence is inadmissible, except where the person concerned is dead, cannot be found, is incapable of deposing or cannot be produced without inordinate cost or delay.

8.3 Are there any particular rules regarding the calling of witnesses of fact? The making of witness statements or depositions?

A witness may be produced voluntarily by a party or, by way of a summons from the court, pursuant to an application made in this regard. The court may also ask a witness to give evidence or produce a document without a summons by giving reasons for doing so.

Evidence in chief of witnesses of fact is normally led by affidavit except in criminal cases. However, the court may, for reasons recorded in writing, allow evidence in chief to be led by examination in open court. Evidence in chief is followed by cross-examination unless cross-examination is waived. Re-examination of witnesses is permissible only under limited circumstances.

8.4 Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? Does the expert owe his/her duties to the client or to the court?

Expert evidence is admissible, provided that the expert must be qualified in that discipline and the evidence must be based on reliable principles. Where one party files an expert opinion, the other party has the right to file an expert opinion in rebuttal. The Court also has the power to suo moto appoint an expert for an opinion.

An expert's competence can be assailed in cross-examination.

An expert owes duty to the court – to assist the court in coming to the correct conclusion, regardless of which party calls him.

9 JUDGMENTS & ORDERS

9.1 What different types of judgments and orders are the civil courts in your jurisdiction empowered to issue and in what circumstances?

Civil courts in India have wide powers to pass such orders and judgments as would do justice between the parties. These may be for grant of monetary claims, including damages, ruling/declarations on the rights and obligations of parties, reliefs in terms of specific performance of a contract, declaratory reliefs for property, assets and rights of parties, mandatory and perpetual injunctions, costs, etc. Judgments may be passed upon the plaintiff proving its case in trial or on admission of a defendant.

9.2 What powers do your local courts have to make rulings on damages/interests/costs of the litigation?

The CPC empowers the court to award costs to the successful party in a litigation. [See question 1.5 above.]

The court is also empowered to award interest on the principal sum claimed in relation to a monetary decree from the date of filing the suit, or from the date of the cause of action if the contract provides for interest/interest is claimed by the plaintiff.

Punitive costs may be awarded in extreme cases, for instance when the proceedings have been filed fraudulently, or on a case that is false to the knowledge of the plaintiff.

9.3 How can a domestic/foreign judgment be recognised and enforced?

A domestic decree is enforceable immediately, either by the court to which passed it, or by any Court to which it is transferred for execution. A decree may be executed on the application of the decree holder by: (i) delivery of any property specifically decreed; (ii) attachment and sale of any property; (iii) arrest and detention of the judgment-debtor; (iv) appointment of a receiver; or (v) such other manner as the nature of the relief may require.

Foreign judgments which are issued by superior courts of a country notified as reciprocating territory (which includes the United Kingdom and Singapore), and for a sum of money, not being money payable in respect of taxes or other charges of a like nature, is payable, may be enforced in India between the parties, as a judgment of an Indian court. The judgment will be enforced and executed unless it:

1. has not been pronounced by a court of competent jurisdiction; or
2. is not on merits; or
3. is founded on an incorrect view of international law, or a refusal to recognise Indian law where applicable; or
4. was obtained in proceedings opposed to natural justice, or obtained by fraud.

Other foreign judgments may be enforced by instituting a suit in India. Execution/enforcement may be refused if the judgment debtor proves any of the conditions mentioned above.

Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court.

There is no provision under Indian law for enforcement of interim orders of a foreign court.

9.4 What are the rules of appeal against a judgment of a civil court of your jurisdiction?

See question 1.2 above. Additionally:

Revision:

Where no appeal is provided for, the High Court has power by revision to examine the record of any case decided by a subordinate court and where there is a mistake, illegality, or material irregularity in the exercise of jurisdiction, pass such order as it deems fit.

Review:

Where either no appeal is provided for, or no appeal is preferred, the parties can apply to the court passing the decree to review its decision, if: (i) the aggrieved party has discovered a new and important matter of evidence which, after the exercise of due diligence, was not within their knowledge, or could not have been produced by them at the time when the decree was passed; (ii) there is some mistake, or error apparent on the face of record; or (iii) for other sufficient reason.

Enforcement is not suspended merely because an appeal, application for revision or review is pending, although the court concerned may, for sufficient cause, stay enforcement pending the appeal or application.

10 SETTLEMENT

10.1 Are there any formal mechanisms in your jurisdiction by which parties are encouraged to settle claims or which facilitate the settlement process?

Judges generally encourage parties to settle their disputes to avoid protracted litigation. Where a court believes that a settlement may be acceptable to the parties, the court may formulate the terms of settlement in consultation with the parties and can refer them to arbitration, conciliation, settlement through Lok Adalat or mediation. Each of these settlement procedures are governed by separate statute or guidelines. Court-supervised mediation cells are now set up in almost all High Courts in the country.

A compromise arrived at between the parties during the course of the trial can be decreed by the court in accordance with the terms of such compromise.

11 ALTERNATIVE DISPUTE RESOLUTION - Preliminaries

11.1 What methods of alternative dispute resolution are available and frequently used in your jurisdiction? Arbitration/Mediation/Expert Determination/Tribunals (or other specialist courts)/Ombudsman? (Please provide a brief overview of each available method.)

The main forms of alternative dispute resolution in India are:

i) Arbitration:

Governed by the Arbitration and Conciliation Act, 1996 (as amended from October 2015 (the "A&C Act"). Domestic and foreign arbitrations are governed by separate Parts:

• Part I, which contains provisions for the conduct of any arbitration with its seat in India and enforcement of awards thereunder. Part I is specific to arbitrations with their seat in India, including: (i) the law and procedures relating to conduct of arbitration proceedings; (ii) challenge to awards; and (iii) enforcement of awards.
• Part II covers foreign arbitration under the New York Convention and deals with referring parties to arbitration and enforcement of foreign awards.

ii) Conciliation:

Conciliation is covered by Part 3 of the A&C Act. An award passed pursuant to settlement by conciliation is enforceable in the same manner as an arbitral award.

iii) Mediation:

There is no specific statute that governs mediation, although there exist the Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2006, which refer to mediation. These are, however, applicable to mediation that is commenced pursuant to the filing of legal proceedings between parties. A settlement agreement arrived at though mediation is not enforceable as an award or decree and a suit would have to be filed on the agreement, unless if, as a consequence of mediation in legal proceedings, the court passes a decree in terms of the settlement.

iv) Lok Adalat:

The Lok Adalat or the 'People's Court', derives statutory validity under the Legal Services Authorities Act, 1987, and generally comprises a judicial officer and two other members (usually a lawyer and a social worker). The Lok Adalat facilitates a settlement of small claims and disputes and submission to its jurisdiction is voluntary.

11.2 What are the laws or rules governing the different methods of alternative dispute resolution?

See question 1.1 above.

11.3 Are there any areas of law in your jurisdiction that cannot use Arbitration/Mediation/Expert Determination/Tribunals/Ombudsman as a means of alternative dispute resolution?

Typically, determination of rights in rem are those that can be adjudicated through ADR. For example: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights or child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); (vi) tenancy matters governed by special statutes; and (vii) matters for which specialised tribunals have been set up, such as the Debt Recovery Tribunal for banks and financial institutions and the Company Law Board (now the National Company Law Tribunal), which deals with specific cases related to company law.

11.4 Can local courts provide any assistance to parties that wish to invoke the available methods of alternative dispute resolution? For example, will a court – pre or post the constitution of an arbitral tribunal – issue interim or provisional measures of protection (i.e. holding orders pending the final outcome) in support of arbitration proceedings, will the court force parties to arbitrate when they have so agreed, or will the court order parties to mediate or seek expert determination? Is there anything that is particular to your jurisdiction in this context?

Reference to arbitration:

If a judicial authority in India is seized of an action which is subject matter of an arbitration agreement and a party applies to refer the matter to arbitration, such judicial authority must refer the parties to arbitration. In case of an arbitration with a foreign seat, the judicial authority must first satisfy itself that the arbitration agreement is valid and binding on the parties and capable of being performed.

Interim relief:

Parties may approach a court for interim reliefs before or during arbitral proceedings, or at any time after making the arbitral award but before it is enforced. In case of arbitrations commenced after the amendments to the A&C Act have become effective (October 23, 2015), parties to a foreign arbitration may approach Indian courts for interim relief, subject to any agreement to the contrary.

Interim reliefs sought may include orders for:

1. the appointment of a guardian for a minor, or person of unsound mind, for the arbitration; and
2. an interim measure, or protection in respect of any of the following matters:
   
   
   1. preservation, interim custody, or sale of any goods which are the subject matter of the arbitration agreement;
   2. securing the amount in dispute in the arbitration;
   3. detention, preservation, or inspection of any property or thing which is the subject matter of the dispute in arbitration;
   4. interim injunction, or the appointment of a receiver; and
   5. such other interim measure of protection as may appear to the Court to be just and convenient.

11.5 How binding are the available methods of alternative dispute resolution in nature? For example, are there any rights of appeal from arbitration awards and expert determination decisions, are there any sanctions for refusing to mediate, and do settlement agreements reached at mediation need to be sanctioned by the court? Is there anything that is particular to your jurisdiction in this context?

An award in a domestic arbitration is final, binding and executable as if it were a decree of an Indian court. No merit-based challenge to an award will be entertained and an award may be set aside only on the following grounds:

1. the party challenging the award was under some incapacity;
2. the arbitration agreement was invalid;
3. the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present their case;
4. the award deals with a dispute or contains a decision on matters beyond the scope of the reference;
5. the arbitral tribunal or the procedure was not in accordance with the agreement of the parties;
6. the subject matter of the dispute was not capable of settlement under Indian law; and
7. the award conflicts with the public policy of India. An award may be considered to be in conflict with the public policy of India if it: (i) was induced by fraud or corruption or was in violation of Section 75 (confidentiality) or 81 (inadmissibility of without prejudice discussions); (ii) is in conflict with the fundamental policy of Indian Law; or (iii) is in conflict with basic notions of morality and justice.

The application for setting aside an award must be made within three months of the making of the award extendable by the court, for sufficient cause, for a further period of 30 days.

There is no provision for challenging a foreign award. Enforcement of a foreign award may, however, be refused on the grounds set out above (for setting aside an award), or if: (i) the award has been set aside or suspended; or (ii) the subject matter of the dispute cannot be settled by arbitration under Indian law.

For conciliation and mediation see question 1.1 above.

12 ALTERNATIVE DISPUTE RESOLUTION INSTITUTIONS

12.1 What are the major alternative dispute resolution institutions in your jurisdiction?

The various institutions include the Indian Council for Arbitration and the Indian Merchants Chamber; other Chambers of Commerce also provide institutional arbitration. Most Indian parties to domestic arbitrations seem to prefer non-institutional or ad hoc arbitration as it is cheaper (no specific rules of procedure apply and parties/the tribunal may tailor the procedure to the parties' requirements).

Arbitration centres have also been set up in various High Courts, such as in Delhi, Karnataka, Madras, etc.

Originally published by International Comparative Legal Guides.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.