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.

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

4. Overview of Indian
Commercial Disputes
Resolution
(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

9. Arbitrations
(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

14. Commercial Courts
(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

17. Special Tribunals
(c) Hasit Seth, 2023

18. Tribunals
♔ Specialist / Expert Members
♔ Oral Evidence Is Usually Absent
♔ Fewer Benches. / Branches than Courts
♔ Focussed workload of cases
(c) Hasit Seth, 2023

19. Tribunals
♔Some Commercial Dispute Tribunals
♕ Competition Commission of India (CCI)
♕ National Company Law Tribunal
♞ Corporate Law
♞ Insolvency & Bankruptcy
♕ Tax Tribunals
♕ Debt Recovery Tribunals
♕ Securities Appellate Tribunal
(c) Hasit Seth, 2023

20. Questions
(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

24. Bar Council of India’s New Rules
(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

31. Fees
(c) Hasit Seth, 2023

32. (c) Hasit Seth, 2023
THANK YOU
Happy To Keep in Touch Via LinkedIn.
You can follow my updates at:
https://www.linkedin.com/in/hbs/