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Judiciary
India has a well-established and independent judiciary system.
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: -
1. Various Tax Tribunals
2. Consumer Dispute Rederssal Forums
3. Insurance Regulatory Authority of India
4. Industrial Tribunals
5. Debts Recovery Tribunals
6. Company Law Board
7. Motor Accidents Claims Tribunals
An appeal can be filed against an order of the civil or criminal
judge before the Court of District and Sessions Judge. Next
appeal can be preferred before the High Court and after that to
the Supreme Court.
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.
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. In addition, the CPC
provides for a summary procedure for faster recovery of a debt
or liquidated money in demand under Order 37 of the CPC. In
summary suit, defendant is not, as in an ordinary suit, entitled
as of right to defend the suit.
Arbitration and Conciliation
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 Act 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.
Execution Procedure
The Supreme Court of India in the matter of M/s Furest Day
Lawson Ltd. Vs. Jindal Exports Ltd 2000(4) AD(SC) 433 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 Sections 47-49 of the
Arbitration 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 enforced as per Section 36 of the
Arbitration Act, which states that where the time for making an
application to set aside the Arbitral Award under Section 34 has
expired, or such application having been made, it has been
refused, the Award shall be enforced under the CPC in the same
manner as if it were a Decree of the Court.
New Dispute Resolution Opportunities offered 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.
Under Indian Law, the following types of differences cannot be
settled by arbitration, and therefore, must be settled only
through civil suits: -
- Matters of public rights
- Proceedings under the Foreign Exchange Management Act (FEMA)
which are quasi-criminal in nature
- Validity of intellectual property rights granted by statutory
authorities
- Taxation matters beyond the will of the parties
- Winding up under the Companies Act, 1956
- Disputes involving insolvency proceedings
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Important Economic Laws in India
Reserve Bank of India Act 1934 :
http://www.indialawinfo.com/bareacts/RBI.html
Insurance Act , 1938 : www.irdaindia.org
Industries (Development and Regulation) Act, 1951 :
http://siadipp.nic.in/publicat/ip/ipact01.htm
Industrial Disputes Act, 1947 :
http://www.indialawinfo.com/bareacts/ida.html
Environment (Protection) Act, 1986 :
http://envfor.nic.in/legis/env/env1.html
Foreign Trade (Development and Regulation) Act, 1992 : Please click to visit the website
Income-tax Act , 1961 : http://law.incometaxindia.gov.in/TaxmannDit/DisplayPage/dpage1.aspx
Foreign Exchange Management Act , 1999 : http://indiacode.nic.in/fullact1.asp?tfnm=199942
Customs Act, 1962 : http://www.cbec.gov.in/customs/cs-act/cs-act-idx.htm
Customs Tariff Act 1975:http://www.cbec.gov.in/customs/cst-0708/cst-main.htm
Central Excise Act, 1944 : http://www.cbec.gov.in/excise/cx-act/cx-act-idx.htm
Central Excise Tariff Act, 1985, 1986 : http://www.cbec.gov.in/excise/cx-tariff0708/cxt0708-idx.htm
Companies Act , 1956 :
Please click to visit the website
Patents Act , 1970 :
http://ipindia.nic.in/ipr/patent/patents.htm
Copyright Act 1957 : http://indiacode.nic.in/fullact1.asp?tfnm=195714
Trade Marks Act , 1999 :
http://did.nic.in/ipr/trademark/tmmain.htm
Securities and Exchange Board of India Act 1992 :
Please click to visit the website
Indian Penal Code 1860 :
http://www.indialawinfo.com/bareacts/ipc.html
Indian Evidence Act 1872 :
http://www.indialawinfo.com/bareacts/evi.html
Central Electricity Act 2003:
Please click to visit the website
Information Technology Act 2000 : http://mit.gov.in/default.aspx?id=321
Constitution of India :
http://indiacode.nic.in/coiweb/welcome.html
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