Dispute Resolution in India
The Dispute Resolution process in
India mainly involves the following:
Litigation in India
The litigation process in
India is based on common law. It is largely based on English
common law because of the long period of British colonial
influence during the British Raj.
The Indian Courts are famous for arrears;
therefore arbitration is becoming more common.
There is a single hierarchy
of courts in India. Much of contemporary Indian law shows
substantial European and American influence. Various acts and
ordinances first introduced by the British are still in effect
in modified form today. During the drafting of the Indian
Constitution, laws from Ireland, the United States, Britain, and
France were all synthesized to get a refined set of Indian laws
as it currently stands. Indian laws also adhere to the United
Nations guidelines on human rights law and environmental law.
Certain international trade laws, such as those on intellectual
property, are also enforced in India.
Each state drafts it own
laws, however all the states have more or less the same laws.
Laws directed by the central government and the Supreme Court of
India via judicial precedent or general policy directives are
binding on all citizens of each state. Each state has its own
labor laws and taxation rates.
India's judicial system is
made up of the Supreme Court of India at the apex of the
hierarchy for the entire country and twenty-one High Courts at
the top of the hierarchy in each State. These courts have
jurisdiction over a state, a union territory or a group of
states and union territories. Below the High Courts are a
hierarchy of subordinate courts such as the civil courts, family
courts, criminal courts and various other district courts.
The High Courts are the principal civil courts of original
jurisdiction in the state, and can try all offences including
those punishable with death. However, the bulk of the work of
most High Courts consists of Appeals from lowers courts and writ
petitions in terms of Article 226 of the Constitution of India.
The precise jurisdiction of each High Court varies.
Each state is divided into
judicial districts presided over by a 'District and Sessions
Judge'. He is known as a District Judge when he presides over a
civil case, and a Sessions Judge when he presides over a
criminal case. He is the highest judicial authority below a High
Court judge. Below him, there are courts of civil jurisdiction,
known by different names in different states.
Arbitration in India
The Applicable Arbitration Law
The Indian Arbitration and Conciliation Act, 1996 the governing arbitration
statute in India. It is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985.
Previous statutory provisions on arbitration were contained in three different enactments, namely,
the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961.
The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 and also the Acts of 1937 and
Conventions on Arbitration
India is a party to the following conventions:
the Geneva Protocol on Arbitration Clauses of 1923
the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927; and
the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.
It became a party to the 1958 Convention on 10th June, 1958 and ratified it on 13th July, 1961.
There are no bilateral Conventions between India and any other country concerning arbitration.
The Types of Arbitrations
The Indian Arbitration and Conciliation Act, 1996 applies to both
domestic arbitration in India and to international arbitration. Section 2(1)(f) of the
Act defines "International Commercial Arbitration" as arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India where at least one of the parties is:
an individual who is a national of, or habitually resident in any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country.
Requirements of an Arbitration
Section 7(3) of the Act requires that the arbitration agreement must be in writing.
Section 7(2) provides that it may be in the form of an arbitration clause in a contract or it may be in the form of a separate agreement.
Under Section 7(4), an arbitration agreement is in writing, if it is contained in : (a) a document signed by the parties, (b) an exchange of letters, telex, telegrams or other means of telecommunication, providing a record of agreement, (c) or an exchange of claims and
defense in which the existence of the agreement is alleged by one party and not denied by the other.
In section 7(5), it is provided that a document containing an arbitration clause may be adopted by "reference", by a contract in writing.
Services Offered by Us
Madaan & Co. is
recognized for its excellent Litigation and Arbitration Practice. The Firm regularly provides services for all types of
litigation in all Courts, Tribunals, Commissions, Forums and
other Authorities. The Firm's experience in
litigation extends to all types of litigation instituted and
prosecuted within the country and abroad, including Recovery
Suits, Property Disputes, Commercial Disputes, Product
Liability, Infringement of Intellectual Property Rights,
Constitutional Matters, Matrimonial Disputes, Custody Claims,
Service Matters, Banking Claims, Insolvency and other disputes.
The Firm has
successfully conducted handled arbitration for its clients both
within the USA, Europe and India. We have handled arbitrations
related to Commercial Contracts, Collaboration Disputes,
Contractual Disputes, Construction Agreements, Service
Agreements, Operation and Maintenance Dispute under the
provisions of Arbitration and Conciliation Act, 1996 and various
international arbitration rules including ICC, ICA, AAA, LCA and
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Litigation in India
Arbitration in India
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Business in India
Incorporating in a company in India
Joint Ventures in India
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subsidiary in India
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Our lawyers include those admitted to bar in the United States of America. They have
undertaken legal maters in the USA, India and Europe.
They understand the multi-cultural and the
multi-jurisdictional aspects of international business
in this age of globalization. They include those educated
at Harvard Law School, Harvard University in the
USA and premier universities in India.
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