Francisco A. Laguna
Today, we continue our India Update, focusing on the recent reorganization of the judiciary. The reforms included in The Commercial Courts Commercial Division & Commercial Appellate Division of High Courts Act, 2015 (Act) form part of India’s efforts to ease doing business in the country, build confidence and attract foreign direct investment.
Jurisdiction in Arbitration Proceedings
All matters currently pending under Part I of the Arbitration & Conciliation Act, 1996 (Arbitration Act) will be transferred to the Commercial Courts or Divisions.
International commercial arbitrations, defined as controversies involving at least one non-Indian party with proceedings in India, will be under the jurisdiction of the Commercial Divisions of the High Courts. The one exception is applications for the designation of arbitrators, which are currently the responsibility of the Supreme Court.
This has created a conflict between the Act, which prescribes that arbitration proceedings would be heard by the Commercial Appellate Divisions, and the Arbitration Act, including the fact that the Commercial Divisions of the Mumbai High Court do not include arbitration proceedings within their jurisdiction. This is expected to be modified in the near future.
Decisions issued by the Commercial Courts and Divisions are no longer subject to appellate review by the High Courts. These appeals will be heard, exclusively, by the Commercial Appellate Division of the High Court that heard the case in first instance. Appeals must be filed within 60 days of the date of the order, and more importantly from the foreign investor perspective, must be decided within a period of 6 months. The time it takes for appeals to be heard and resolved has been a major criticism of foreign companies doing business in India.
Procedure & Timelines
To address concerns of the time required to litigate in the Indian courts, the Code of Civil Procedure has been revised to include the following provisions, some taken directly from procedures followed by US courts:
- Commercial Courts / Divisions shall have case management hearings to discuss the issues in controversy and set timelines.
- Parties may move for summary judgment solely on the written pleadings.
- Every pleading must be attested by an affidavit; otherwise, it cannot be relied upon.
In addition, the following deadlines have been incorporated into the Code:
- Written statements must be filed within 120 days of the date of service of process.
- Document Inspection must be completed within 30 days of filing of the written statement.
- Initial case management hearing will be within 4 weeks from admission or denial of documents by all parties.
- Written arguments must be submitted within 4 weeks of commencement of oral arguments. The court has the discretion to permit revised written arguments to be filed within 1 week of oral arguments.
- Oral arguments must be concluded within 6 months from the first case management hearing.
- The Commercial Court or Division must issue its ruling within 90 days of the conclusion of oral arguments.
These deadlines, if indeed followed and enforced, will greatly streamline court proceedings.
The Act clearly stipulates that pending commercial disputes with the required Specified Value, including those pending under the Arbitration Act, will be transferred to the Commercial Courts or Divisions. Not surprisingly, however, the Delhi High Court has adopted another position, ruling that the civil courts will continue to retain jurisdiction of cases where hearings have concluded and judgment is reserved.
From the practical perspective, Commercial Courts have yet to be established. Only the Delhi and Bombay High Courts have Commercial Divisions and Commercial Appellate Divisions. Moreover, the establishment of new divisions or courts does not resolve the fact that the judiciary is over-burdened.
Contact TransLegal with your questions concerning court and arbitration proceedings in India.