Location is a critical factor in the success of dispute resolution proceedings. A wise choice of venue bodes well for the speed, quality and enforceability of the ruling. Alfred Romann reports
In his masterpiece Bleak House, Charles Dickens wrote of a seemingly perpetual lawsuit and its impact on various generations. The case of Jarndyce and Jarndyce dragged on for decades – to the point where no one even knew what it was about.
Dickens could have been writing about contemporary India: a country that has no lack of love for long and expensive litigation of a type that would make Bleak House more of a short story than a novel.
In one infamous example, a property suit filed in Calcutta on 16 September 1836 remains unresolved, with the contested property still in the custody of the local courts.
The situation is certainly improving, particularly in the commercial arena where specialist tribunals staffed by well-trained professionals are having a positive effect on the speed and quality of judgments. Many of the more traditional courts, notably Delhi High Court, have also made significant strides towards greater efficiency.
Lawyers with local insight can make the judicial process move faster still. Injunctive and temporary relief can be rendered quickly. Courts are increasingly willing to move fast to freeze any assets linked to pending litigation, and judges are showing a greater interest in expediting cases, sometimes even holding hearings on a daily basis.
Changes to the Code of Civil Procedure have brought additional improvements. The decision to allow written submissions, for example, means that witnesses need only be cross-examined on the basis of affidavits rather than appearing at every juncture. Written submissions have to be presented in less than 90 days, resulting in actions typically ending within three years, down from about 10 years previously.
But not everyone shares the goal of resolving disputes in a timely fashion. India’s complex legal system enables defendants to prolong cases or bypass substantive issues. And in many cases, obtaining a ruling is only half the battle. Winning a court case is not the same as collecting on one. The process of enforcing a court judgment or an arbitral award is often fraught with peril. It requires skills over and above the rhetorical prowess of “black-letter” law.
Location, location, location
Successful dispute resolution requires knowing the parties, the lawyers and the courts. The location of the forum is arguably the most important factor in determining how successfully any award, whether obtained through litigation or arbitration, can be enforced.
“Jurisdiction has become one of the most important matters argued before the court,” says Pravin Anand, managing partner of Delhi-based IP boutique Anand and Anand. He estimates that about a fifth of his time on each case is spent deciding which court will handle it. “That slows down the process of enforcement,” he says.
Anand believes that the qualitative difference between India’s courts is staggering. Just among the high courts (there are 21), he sees significant disparities.