A review of commercial dispute resolution in India and rules for foreign lawyers to practice in India. The presentation was in a series called Jour Fixe and delivered to Clifford Chance, Germany members.
2023 Jour Fixe Clifford Chance, Germany - Hasit Seth's Presentation
1. Commercial Dispute Resolution
in India
Arbitrations and Commercial Courts
HASIT B. SETH
Jour Fixe
Clifford Chance, Germany
5th April 2023
(c) Hasit Seth, 2023
2. Introduction
♔Name: HASIT B. SETH
♔ I am a disputes lawyer in India. My practice focuses on
commercial dispute resolution covering IP, construction,
contracts in litigation and arbitrations
♔ I am licensed to practice law in New York and India
♔ You are welcome to connect at
https://www.linkedin.com/in/hbs and keep in touch
(c) Hasit Seth, 2023
3. Outline
♔ Overview of Indian Commercial Disputes Resolution
♔ Arbitrations
♔ Commercial Courts
♔ Special Tribunals
(c) Hasit Seth, 2023
5. The Indian Governance System
♔ Written Constitution
♔ Federal Country
♕ Union Government, State Government and District (City)
Municipality
♔ Unified Judiciary & Courts
♕ No separate courts for states and union laws (unlike e.g., USA)
(c) Hasit Seth, 2023
6. Indian Legal System
♔ Supreme Court
♕ Special Appeals / Appeals
♕ Disputes between States or States & Union
♕ Fundamental Rights & Constitution
(c) Hasit Seth, 2023
7. Indian Legal System
♔High Courts for a State (or multiple states / union
territories)
♕ Appeals from District Courts
♕ Fundamental Rights & Constitution
♕ Five High Courts – Original Trial Jurisdiction
♕Bombay High Court (picture)
(c) Hasit Seth, 2023
8. Indian Legal System
♔District Courts
♕ Appeals & Special Trials
♕ My home town Jalgaon’s District Court in Maharashtra State
♔ Trial Courts
♕ Trials
(c) Hasit Seth, 2023
10. Federal Law
♔ Arbitration & Conciliation Act, 1996
♕ UNCITRAL Model Law based
♔ Part I – Domestic Arbitration & India seated International
Arbitrations
♔ Part II – Enforcement of International Awards (New York
Convention Awards)
(c) Hasit Seth, 2023
11. Features
♔ Civil Procedure Code and Evidence Law
♕ Not strictly applicable
♔ Institutional Arbitration
♔ Domestic Arbitrations – 6 months (pleadings) + 18
months (max.)
♔ Interim Relief from Courts / Arbitral Tribunal
(c) Hasit Seth, 2023
12. Features
♔Limited Grounds for Setting Aside the Award
♔ Costs
♔ Flexible Procedure / Party Autonomy
♔ Arbitrator Appointment by Consent or Courts
(c) Hasit Seth, 2023
13. Enforcement of Awards
♔ By regular civil courts
♔ Civil Procedure Code, 1908 applies to enforcement
(c) Hasit Seth, 2023
15. New 2015 Law
♔ Commercial Courts Act, 2015
♔ Long name: The Commercial Courts, Commercial Division
And Commercial Appellate Division Of High Courts Act,
2015
♔ New Jurisdiction for same courts
♔ A modified Civil Procedure Code, 1908 applies to
Commercial Courts
(c) Hasit Seth, 2023
16. Features of Commercial Courts
♔ Time limits for written statements of defendants
♔ Applies only to specific commercial matters
♕ Examples: trade contracts, arbitrations, intellectual property, etc.
♔ Of Specified Value (Varies across High Courts & States)
(c) Hasit Seth, 2023
21. Foreign Lawyers In India
HASIT B. SETH
Jour Fixe
Clifford Chance, Germany
5th April 2023
(c) Hasit Seth, 2023
22. Bar Council’s Previous Position
♔ Advocates Act, 1961
♔ To be an advocate in India one has to be a citizen of India
apart from other requirements of education, age, etc.
♔ But there was a reciprocity provision too in the same law
for foreigners, but this had not been tested much.
(c) Hasit Seth, 2023
23. Bar Council’s Previous Position
♔Indian law degree or a foreign law degree had to from the
approved list was a requirement.
♔ Courts liberalised this situation by allowing “Fly In, Fly
Out” practice by foreign lawyers for international
commercial arbitrations and foreign law advisory.
(c) Hasit Seth, 2023
25. Main Features
♔ Registration of Foreign Lawyers & Law firms with BCI
♕ Exception - Fly-in, Fly-out for 60 days within 12 months for
advice related to foreign law and international issues.
♔ Foreign lawyer must have a right to practice foreign law
in the foreign country of primary qualification is a must.
(c) Hasit Seth, 2023
26. Procedural Requirement
♔ Fees: Registration, Process + security deposit
♔ Government’s Certificate about an effective legal system
in applicant’s country & no objection
♔ Foreign law’s regulatory body’s certificate of right to
practice law
♔ Certificate of reciprocal right to practice for Indian
lawyer’s in the foreign jurisdiction similar to these
permissions
(c) Hasit Seth, 2023
27. Procedural Requirement
♔Good standing certificate; no professional misconduct
pending; no objection to practice in India from the foreign
bar authority
♔ Declarations: no conviction, no adverse disciplinary
ruling, permitting background checks, understanding that
Indian legal practice rules apply as applicable
♔ 5 year validity of registration. Renewable.
(c) Hasit Seth, 2023
28. Permitted Practice of Law
♔ Can do –
♕ Non-litigation matters
♕ Transactional work /corporate work such as joint ventures,
mergers and acquisitions
♕ Intellectual property matters
♕ Drafting of contracts and other related matters on reciprocal
basis.
♕ work, transacting business, giving advice and opinion
concerning the laws of the country of the primary qualification
♕ Appear as a lawyer in international arbitration for an foreign
entity for an India seated arbitration, may or may not involve
foreign law
♕ Appear in forums not authorised to take evidence on oath but
on foreign law issues
♕ Foreign law advisory except preparing documents for court
(c) Hasit Seth, 2023
29. Permitted Practice of Law
♔ Can do –
♕ Open Offices
♕ Engage and procure legal service of Indian registered lawyers
♕ Foreign lawyers / firms can partner with other foreign lawyers /
firms
(c) Hasit Seth, 2023
30. Permitted Practice of Law
♔Cannot do –
♕ Appearance before Indian courts, tribunals or regulatory
authorities. No litigation work.
♕ Conveyancing of property, Title investigation or other similar
works
♕ India registered lawyer or partner in foreign law firm can advise
on foreign law, cannot appear in Indian courts and cannot
practice Indian law
(c) Hasit Seth, 2023