INDIA Law and Practice Contributed by: Neeraj Tuli, Celia Jenkins and Rajat Taimni, Tuli & Co
Special Benches The CCA 2015 carves out special benches in all exist- ing civil courts to exclusively adjudicate commercial matters. Since the CCA 2015 recognised insurance disputes as commercial disputes, all insurance dis- putes valued above INR300,000 (approximately USD3,600) are now required to be filed before a com- mercial court with appropriate territorial jurisdiction at the district level or before the High Court having original jurisdiction if the dispute so qualifies and are no longer filed before civil courts. There are strict time- lines that all commercial courts need to follow and the CCA 2015 is meant to speed up the adjudication process. The CCA 2015 also provides for compulsory mediation for parties before filing a commercial suit, except where a party seeks urgent interim relief. Appeals against the orders of commercial courts of first instance lie before a commercial appellate court or a commercial appellate division of the High Court concerned (as the case may be). The CCA 2015 does not allow any further appeals against orders of either the commercial appellate court or the commercial appellate division of a High Court; only a Special Leave Petition can be filed before the Supreme Court of India. It is at the discretion of the Supreme Court of India to entertain such a petition, which it does spar- ingly. Indian litigation can often be time-consuming and potentially expensive. The number of reported pend- ing cases exceeds 50 million. Attempts to clear the backlog have not yielded the desired results, even though the inception of commercial courts has some- The Indian Code of Civil Procedure 1908 (CPC) lays down the procedure for the enforcement of Indian and foreign judgments. A judgment or decree passed by a court in India can be enforced either by the court that passed it or by the court to which it is sent for execution. With regard to the enforcement of a for- eign judgment or decree, the basic principle that is followed is to examine whether the foreign judgment or decree is a conclusive one in terms of Section 13 of the CPC, based on the merits of the case and passed by a superior court of a reciprocating territory what expedited the trial process. 9.4 Enforcement of Judgments
as notified by the Indian government. Furthermore, a foreign judgment can be enforced in India by filing an execution petition under Section 44-A of the CPC before an appropriate district court (as defined under the CPC); this also includes High Courts with original civil jurisdiction. A foreign judgment passed by a court in a non-recip- rocating territory is not directly enforceable in India and a fresh suit may be filed on the basis of the foreign judgment or decree. In such situations, the foreign judgment is considered of evidentiary value only under Section 88 of the Bharatiya Sakshya Adhiniyam, 2023. The process of enforcement of judgments can also prove to be slow in such cases. 9.5 Enforcement of Arbitration Clauses Domestic Arbitration Typically, Indian courts strictly enforce arbitration clauses. This position also holds true for insurance and reinsurance contracts. The courts will generally refer a dispute to arbitration after determining whether an arbitration agreement exists and will leave the arbitral tribunal to decide issues such as novation, settlement, arbitrability, and limitation. Additionally, the courts have held that a party that has approached a consumer commission cannot be forced to arbitrate the dispute (where such an agreement exists), as the Consumer Protection Act 2019 (the “Consumer Protection Act”) is a beneficial legislation and provides the consumer with an inde- pendent right of action. Furthermore, in many insurance agreements, the arbi- tration clause provides for a quantum-only arbitration (ie, if the insurer denies liability, the arbitration clause cannot be triggered). However, in cases where such denial is based on the execution of a discharge vouch- er or settlement agreement by an insured, the dispute will still be referred to arbitration, with the question of settlement being left open for the tribunal to decide. Form of Arbitration Agreement An arbitration agreement, as per the Arbitration and Conciliation Act 1996 (the “Arbitration Act”), must be in writing and signed by the parties. Although it is advisable to have an arbitration clause in the con-
207 CHAMBERS.COM
Powered by FlippingBook