In India, dispute resolution primarily occurs through litigation, arbitration, and mediation.

Litigation is the predominant method of resolving commercial disputes in India, with a court hierarchy that includes District Courts, High Courts, and the Supreme Court. Specialized courts and tribunals handle specific matters like company law, telecom and aviation disputes, environmental issues, debt recovery, insolvency, etc. For instance: Industrial Tribunals; Tax Tribunals; Securities Appellate Tribunal; Debt Recovery Tribunal; National Company Law Tribunals; Consumer Commissions; Central Administrative Tribunal; Labour Tribunals; National Green Tribunal; and Motor Accidents Claims Tribunals, etc.  These tribunals are creatures of statute and operate under their respective statutes. Appeals from tribunals may lie before an appellate authority under the statute or to a High Court and/or to the Supreme Court in terms of the Code of Civil Procedure, 1908 (“CPC”).

Arbitration, governed by the Arbitration and Conciliation Act, 1996 (“A&C Act”), caters to both domestic and international disputes and adheres to international conventions like the New York and Geneva Conventions. Notable arbitration institutions include the Indian Council of Arbitration (ICA), International Centre for Alternative Dispute Resolution, Delhi International Arbitration Centre and Mumbai Centre for International Arbitration. Conciliation, as a part of the Arbitration Act, allows settlement agreements to be enforceable as court decrees.

The Mediation Act of 2023 regulates mediation, promoting it as a cost-effective method, especially in government-related disputes. It mandates an initial attempt at mediation before litigation, with exceptions for urgent interim relief. The process should conclude within 120 days, and extendable up to 60 days with mutual consent. The Commercial Courts Act in particular, facilitates pre-litigation mediation. However, there’s legal ambiguity regarding the enforceability of mediation settlements.

Civil Courts in India operate under the CPC, which outlines the procedural framework. The Commercial Courts Act, 2015 (“CCA”), supplements this with specific provisions for commercial litigation, while the A&C Act supplements with specific provisions for both domestic and foreign arbitration. Additionally, the Indian Evidence Act, 1872 (to be replaced by the Bharatiya Sakshya Adhiniyam w.e.f 1^st July 2024), and the Limitation Act, 1963, provide further procedural guidance governing litigation.

Apart from the above, certain Courts are governed by their own set of rules & regulations pertaining to pleadings, filings, appearances including practice directions, such as rules specific to Arbitral Institutions, Supreme Court Practice Directions, 2013, NCLAT Rules, 2013, Bar Council of India Rules etc.

Supreme Court: The Supreme Court of India is the final court of appeal and possesses three distinct types of jurisdictions: original, appellate, and advisory. Its original jurisdiction is exclusive and encompasses disputes between the Central Government and one or more States, or inter-se conflicts between the States. Cases involving the enforcement of Fundamental Rights also lies within the original jurisdiction of the Supreme Court.

The appellate jurisdiction of the Supreme Court includes any final decision of the High Court in both civil and criminal matters that raise a significant constitutional or legal question; and can be invoked upon a certificate issued by such High Court in respect of any of its decision.

The Supreme Court’s appellate jurisdiction also extends to any decision passed by a Court or Tribunal in India by way of a Special Leave Petition but is limited to instances where there is a substantial legal question at stake or where there has been a gross miscarriage of justice. Additionally, the Supreme Court may grant special leave to appeal on critical legal issues from any court in India, even without a statutory right of appeal.

High Courts: High Courts in India are vested with jurisdiction over States and Union Territories within their respective regions. Currently, there are 25 High Courts in the country. Some High Courts, such as the Bombay High Court, Calcutta High Court, Guwahati High Court, High Court of Judicature at Hyderabad, Madras High Court, and Punjab and Haryana High Court, have jurisdiction that extends beyond a single State or Union Territory.

Generally, the High Courts exercise writ and appellate jurisdiction. However, certain High Courts possess original jurisdiction and are empowered to hear cases directly.

District Courts: Under the administration and judicial supervision of each High Court, are the District Courts. Each State is divided into judicial districts presided over by a District and Sessions Judge, which is the principal civil court of original jurisdiction and the highest judicial authority in a district. District Courts have courts of civil jurisdiction, presided over by judges known in different States as Munsifs, Sub-Judges, Civil Judges. Civil cases from District Courts can be appealed to the State’s High Court. In addition, there are various subordinate courts operating under the District Courts’ jurisdiction.

Subordinate Courts: In certain states, there exist subordinate Courts below the district level, known as Munsif Courts and Small Causes Courts. These courts possess original jurisdiction and are authorized to adjudicate cases involving claims up to a specified limit. Presidency Small Causes Courts are not empowered to hear cases where the claim amount surpasses Rs. 2,000/-. In contrast, some States have civil courts with no upper limit on the monetary value of cases they can hear.

Commercial Courts: Under the CCA, specialized courts have been established within High Courts across India known as Commercial Courts, Commercial Appellate Divisions and Commercial Divisions. These courts are dedicated to resolving “commercial disputes” involving monetary claims exceeding Rs. 3,00,000/-. The nature of these disputes includes inter alia a variety of commercial activities such as export/import, maritime operations, franchising, distribution and licensing agreements, consultancy services, joint ventures, intellectual property rights, insurance matters, and investment contracts as outlined under the Act. The procedural framework governing Commercial Courts is notably distinct and more stringent compared to the general civil litigation process.

Tribunals:  In India, Tribunals serve as specialized courts designed to deliver swift and efficient justice and to provide expert adjudication for specific types of disputes. For instance, Rent Controllers adjudicate tenancy disputes, Family Courts deal with matrimonial and child custody matters, Consumer Tribunals address consumer complaints, Industrial Tribunals and Courts resolve labour conflicts, and Tax Tribunals deal with taxation issues. The National Company Law Tribunal (“NCLT”) is specifically established to oversee company matters under the Companies Act, 2013 and insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (“IBC”).

The timeline for a civil trial depends on various factors, including the jurisdiction and the number of judges in such jurisdiction. In India, property disputes may go on for decades. As per the National Judicial Data Grid, out of the total pending civil cases, 65.09% have been pending for more than 1 (one) year.

The CPC allows for “Summary Suits” to ensure expedited hearings if an application for such a process is approved. This mechanism is designed to circumvent a full trial in certain cases, in cases such as where the defendant does not dispute a claimed debt. During summary proceedings, the defendant has the right to request for a “Leave to defend,”; which if granted, transforms the case to a standard trial.

The CCA prescribes stringent deadlines for proceedings and swift resolution of its disputes. The duration to reach trial in these disputes is significantly reduced, typically ranging from one to three years. The CCA also includes a provision for “Summary Judgment” at the request of a one party. The Act aims to streamline case management, limit appeals and revisions, and speed up procedures for evidence gathering and document production.

Notwithstanding, the parties always have the liberty to approach the High Court or the Supreme Court, seeking an expeditious trial.

In furtherance of the “open court dispensation of justice” principle, the hearings in India are typically open to public. This principle has also led to the introduction of virtual courts to address the concerns regarding infeasibility of physical access to Courts for all. Further, hybrid hearings have been mandated in all High Courts in India.

In matters relating to Constitutional questions of law, the Supreme Court provides for live streaming of the proceedings. However, in instances where a case involves sensitive or confidential matters, the involved party can request a private ‘in camera’ hearing.

Normally, the documents filed by the parties (including Court records) are not available to third parties. In fact, if a case requires confidentiality, the concerned party may ask the court to keep certain documents sealed. However, the Court may grant this request at its discretion. Access to the Court records may be granted to a third party upon presentation of an application, provided they justify the need for such access and demonstrate an interest in the case.

The limitation period for different classes of claims for bringing proceedings before civil courts is prescribed in the Limitation Act, 1963 unless a special statute governing a particular class of claims or subject matter provides otherwise.

The cause of action first accrues and is codified under the Schedule based on the description of the Suit. Ordinarily, in cases dealing with breaches of contract, accounts, declarations or decrees and instruments, the limitation period is three years, while for actions relating to possession of immovable property, the limitation period is twelve years. Suits for which no limitation period is prescribed, have a limitation period of three years. If a defendant is absent from India during the pendency of the Suit, then the period of absence is excluded from the computation of limitation period.

The period of limitation for filing an appeal is generally between thirty (30) to ninety (90) days. Under Indian law, limitation is generally regarded as procedural as its object is not to create or extinguish any right, but to bar remedy beyond the time prescribed.

If any special law prescribes a period of limitation for any suit, appeal or application which is different from the period prescribed under the Limitation Act, then such special statute will override the time period prescribed under the Limitation Act. Notably, a time-barred suit is liable to be dismissed in India, even if a plea of limitation had not been raised as a defense.

Before filing a commercial suit under the CCA, there are specific pre-action steps and statutory requirements to consider, such as mandatory mediation and settlement, unless urgent reliefs are being sought. The Mediation Act also provides for a voluntary option to parties to mediate any civil and commercial disputes before instituting any legal proceedings in court. Additionally, if the contract specifies that disputes must first be attempted to be resolved amicably, this step must be undertaken prior to initiating legal proceedings. Certain statutes also mandate compliance with specific notices and forms. Failure to adhere to these requirements can adversely affect the non-compliant party’s interests, potentially leading to the dismissal of the claim by the court, which may also impose costs. The CPC does not prescribe any pre-action conduct requirements pertaining to ordinary Civil Suits.

However, in cases involving suit against the Government of India or a Public officer acting in official capacity, no Suit can be filed without providing a Notice to the appropriate person before two (2) months. In case no Notice is given, the Court shall not grant any relief, whether interim or otherwise, before providing the Government or Public officer a reasonable opportunity to show cause.

Separately, a suit against a foreign State before a competent Court must be filed with consent from the Central Government in writing. No decree can be executed against the property of a foreign State, without obtaining the consent to sue by the Central Government.

Under the CPC, civil proceedings are initiated by instituting a suit by presenting a plaint accompanied by application(s) for interim reliefs or other procedural measures in the court of first instance. Once commenced, the court is required to issue summons to the defendants at the address provided by the plaintiff, which contains the following:

1. details of the Suit in which the summons have been issued;
2. seal of the court and the judge’s signature;
3. the date of appearance specified; and
4. copy of the plaint;

The court’s serving officer effects service of summons by either (a) registered post with acknowledgment due; (b) speed post; (c) approved courier; or (d) electronic means.

If the Court receives proof of receipt of summons or an endorsement that the defendant refused accepting the summons, it declares the service to be complete on the defendant(s) concerned. The defendant must appear on the date stipulated in the summons and file a written statement within 30 days from the date of service of summons extendable to ninety (90) days. The costs for service of summons are borne by the plaintiff.

The CPC also provides the scope for service of summons outside India. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965, to which India is a party, provides the procedure of service of summons to a defendant residing in a foreign jurisdiction (which is party to the Hague Convention), or when summons is being issued in such a foreign jurisdiction against a party in India.

The Supreme Court,¹ has allowed service of summons through email along with other modes. Further, courts in India have also recognised service through instant messaging applications and permitted service of summons through instant messaging applications, such as WhatsApp, Telegram and Signal.

Footnote(s):

¹ Central Electricity Regulatory Commission v National Hydroelectric Power Corporation Ltd. (2010) 10 SCC 280.

To determine if a Court has jurisdiction over a claim in India, several factors are considered. These include the nature of the case, the pecuniary value of the suit, and the territorial limits of the Court. Jurisdiction can be classified into three main types: subject-matter jurisdiction, territorial jurisdiction and pecuniary jurisdiction. Additionally, contracts may contain jurisdictional clauses specifying the court to hear disputes, but such clauses cannot confer jurisdiction where it does not legally exist.

As per Section 16 of the CPC, a Suit related to immovable property can be filed in the court within whose territorial jurisdiction the property is located or where the defendant resides, conducts business, or works. If the property spans multiple jurisdictions, the suit can be filed in any court within the jurisdiction of any part of the property. However, the court must be competent to handle the entire value of the claim.

Separately, a Court is said to have pecuniary jurisdiction over a dispute, if the claim falls within the prescribed pecuniary threshold. Such pecuniary threshold varies for different States; for instance, the pecuniary jurisdiction for the Delhi High Court, is INR 2 Crores and the Calcutta High Court is INR 10 Lakhs. In respect of the Bombay High Court, the pecuniary jurisdiction has been recently enhanced to INR 10 Crores.

To determine which law governs the claims, Courts consider several factors such as:- (a) jurisdiction and governing law clauses in Contracts; (b) cause of action arising out of the Suit; and (c) nature of contract (for instance, if it is an arbitrable dispute).

In cases involving foreign elements, principles of private international law may be applied to determine the applicable law. In arbitration matters, the identification of the applicable law similarly depends on the express and implied choice of the parties. Similarly, in matters of litigation, Courts rely on the common law doctrine of the ‘proper law of the contract’ to discern the applicable law while adjudicating such disputes on such obligations.

In India, claims can be disposed of without a full trial under several specific circumstances as outlined in the CPC. It provides for expedited trial procedures, also known as “summary procedures”.  Such procedure is in place to avoid a full-fledged trial in specific types of cases, such as where the debt is not denied by the defendant. In summary proceedings, the defendant can seek “leave to defend” and, if permitted, the summary proceeding is converted into an ordinary Suit. Here are some key provisions that allow for such disposals:

1. Order XII Rule 6 (Judgment on admissions): Under this rule, a court may pass a judgment based on admissions made by the parties either in the pleadings or otherwise. This is used when the admissions are clear and unequivocal, rendering a trial unnecessary.
2. Order XV (Disposal of Suit at first hearing): This order allows for the disposal of a suit at the first hearing if the defendant does not raise any issues that require a trial. It is typically used in straightforward cases where there is no substantive defense.
3. Order XXXVII (Summary Procedure): In cases of debt or liquidated demand arising on a written contract, bill of exchange, or promissory note, the plaintiff can apply for summary judgment. The defendant can only defend the suit if they can establish a substantial issue.

The CCA also provides for a “summary judgment” upon application by a party and contains provisions for expedited trial procedure with stricter timelines for various stages of the litigation. It makes provisions for efficient case management, the restriction of appellate and revisional remedies, expedited procedures for discovery, production of documents, etc.`

The main types of interim remedies available in India include status quo orders, attachment orders, interim injunctions, orders securing payment, interim directions, appointment of receivers etc. In commercial matters, seeking interim remedies such as restraining a party from invoking/encashing Bank are typical within the jurisdiction. However, the Court while passing an order granting interim relief, must be satisfied with the following conditions: (i) a prima facie case in favor of the party seeking the order; (ii) irreparable damage to the party seeking the order, which might defeating the very purpose of the suit that may be caused to the party if the relief is not granted; and (iii)  balance of convenience lying with the party seeking the order.

When a suit is commenced by a plaint, the defendant is required to file a “written statement” as a response to it. While the “written statement” may be filed within thirty (30) days (extendable up to ninety (90) days) from the date of receipt of summons by the defendant, for commercial matters the timeline is thirty (30) days (extendable up to one hundred and twenty (120) days). Any further delay beyond this time-period is required to be accompanied by a “condonation of delay” Application filed by the defendant showing sufficient cause for the delay. Apart from the above, the Plaintiff may file a “rejoinder” and the defendant may file a “sur-rejoinder” with the permission of the court.

A defendant may file an Application under Order VII Rule 11 for preliminary rejection of a plaint, if it does not disclose a cause of action, or is undervalued and the plaintiff fails to correct it, or is insufficiently stamped, or is barred by any law.

During the trial, all the documents relied upon or referred to by the parties must be brought on record for disclosure requirements. Once disclosure is complete, the court frames the issues to be determined in the suit. Subsequently, the Court directs the parties to lead evidence in the matter.  The parties get an opportunity to cross examine witnesses who appear in the proceedings. Once the evidence concludes the suit is listed for final arguments before the Court. On competition of arguments the Court may direct the parties to file written submissions. It is difficult to ascertain the exact timeline for the aforesaid procedures and it will depend on the Judge’s discretion.

Once a proceeding has been initiated, the process of disclosure is known as “discovery”. The rules governing discovery are codified under the CPC and CCA. Discovery is a pre-trial procedure which gives both parties an opportunity to obtain documents which may be used as evidence by opposite parties. In India, the entire set of documentary evidence relied upon by the parties, must be filed before the court as original sets.  There are various types of discoveries, namely:

1. interrogatories;
2. requests for production of documents and inspection;
3. requests for admissions; and
4. depositions, etc.

Discovery cannot be sought as a matter of right and may be denied if, in the court’s opinion, it is not necessary for a fair disposal of the case or for saving time and costs. The court may limit discovery to certain classes of documents deemed necessary and expedient. Discovery of documents pertaining to evidence of the opposite party cannot be ordered to be produced by the court. Discovery is typically not allowed in respect of documents protected by attorney-client privilege; in respect of documents concerning the affairs of the State which may be confidential; in respect of matters relating to conduct of judges; and in respect of communications made to a spouse etc. These serve as exceptions. However, exceptions pertaining to attorney-client privilege do not apply to in-house lawyers who are full time salaried employees of an organization.

The courts may also on an application by a party or suo motu, issue summons to non-parties to produce documents that are in their possession or power and are relevant to any question in controversy in the proceedings.  Government agencies as third parties are also bound to respond to queries of citizens under the Right to Information Act, 2005, so long as they relate to public interest and do not involve official secrets or privileged information.

Witness Evidence:

Generally, evidence is admissible if it is both relevant and reliable.  Relevance signifies which facts may be helpful to prove or disprove a disputed fact.  Reliability refers to the credibility of a source being used as evidence. The following points are relevant in respect of witness evidence:

1. Oral evidence is direct evidence and admissible if the person making the statement has himself seen or heard of the events stated in his statement.
2. Documentary evidence is any fact expressed or represented using letters, figures, or marks for the purpose of documentation, including floppy disks, CDs and memory sticks, which are admissible for inspection by the court.
3. Both primary and secondary evidence are admissible in court. However, secondary evidence is considered inferior to primary evidence.
4. Indian courts do not recognize hearsay evidence.

The Indian Evidence Act, 1872 also provides for certain exclusions; for example, no oral evidence is required to prove the contents or terms of a contract, and production of the document itself is sufficient. The procedure for recording witness testimony begins with an “examination in chief” by which the witness swears to the statements made in his/her written affidavit of evidence, followed by cross-examination by the other side. Re-examination of the witness is permissible under limited circumstances which relate to the questions arising directly out of the cross examination. Witnesses must testify under oath before the court and may be liable for the offence of perjury under the Indian Penal Code 1860 if a witness testifies falsely.

Depositions:

India is a party to the Hague Convention, thereby taking a U.S. Deposition of a voluntary witness can occur without prior approval from the Indian Central Authority. However, the CPC does not provide for gathering information using witness testimony during the stage of discovery.

Expert witness is permitted in India. The duty of the expert witness is towards the court, and such witness is required to provide the court its unbiased opinion to assist the court in forming an independent judgment before arriving at a conclusion. The unbiased opinion is in relation to special knowledge regarding any foreign laws, science, art, handwriting or finger impressions where such knowledge has been gained by practice, observation or proper studies for testing the accuracy of a report or observation to enable the court to form an independent judgment about such scientific observations. In order to curb inherent bias, evidence of two opposing experts may be taken concurrently in a technique called “hot-tubbing”. The Delhi High Court Rules have been amended to incorporate the technique of hot-tubbing in commercial suits.

The opinion of an expert only becomes admissible when he is examined and upon giving reasons for forming the opinion, and is verified by cross-examination, although in some cases scientific experts may be exempted from the process of examination.

Under the CPC, appeals can be preferred against a final decree or other specified orders unless precluded by a statute. As a rule, the CPC permits three rounds of appellate proceedings.

A first appeal lies from a decree (including an ex parte decree) passed by any court exercising original jurisdiction to the authorised appellate court, except where expressly prohibited (for example, against a consent decree).  All questions of facts and/or law can be raised in the first appeal.

A second appeal usually lies to the High Court having territorial jurisdiction, from a decree passed in the first appeal by a subordinate court. The second appeal may be preferred only on substantial questions of law that may arise in a case.

A further appeal may lie before the Supreme Court by seeking special leave to appeal. The Supreme Court exercises wide discretion in entertaining such appeal. The special leave to appeal can only be preferred in cases involving a substantial question of law of general importance.

Some specialised statutes also provide that an appeal of the decision of an appellate body constituted under such statute lies directly to the Supreme Court.

Unlike the final judgments/decrees, the interim orders are usually not appealable unless provided in the statute. There are other remedies such revision of the order, recall of the order etc before the same court. Further, where there is no appeal provision against interim orders, the litigants can seek exercise of the extra-ordinary jurisdiction of the High Courts under Article 227 of the Constitution of India or the jurisdiction of the Supreme Court of India under Article 136 of the Constitution of India.

The period to file an appeal is prescribed by the Limitation Act, 1963 or the concerned statutes. The period for appeal usually ranges between 30 days to 90 days, from the date of receipt of the order / decree being appealed.

The Government of India has notified certain countries as reciprocal territories and as such the judgments of the reciprocal countries are recognized and enforceable in India in the same manner as domestic judgments. However, the process of enforcing a judgment passed by non-reciprocal territory is different. The Court having territorial and pecuniary jurisdiction, proceeds with the enforcement of the foreign judgment subject to the exceptions of Section 13 of the CPC.

To be recognised in India, a foreign judgment from “reciprocating territories” must be conclusive and final.  Further, the foreign judgment must be: (i) rendered by a court of competent jurisdiction of the concerned territory; (ii) decides on the merits of the case; (iii) not prima facie appear to be founded on an incorrect view of international law or a refusal to recognize Indian law; (iv) not be violative of principles of natural justice; (v) not be obtained by fraud; and (vi) not sustain a claim founded on breach of Indian law.

A judgment by a reciprocal territory is executable in India without the requirement of instituting a suit, whereas a judgment rendered by a court of a non-reciprocal territory, requires institution of a suit in India. Pertinently, there is no provision for enforcement of interim orders passed by foreign courts as they do not conclusively determine the rights of the parties.

Initially, the parties bear their own costs.  However, courts may, at their discretion, award “reasonable” costs with the judgment.  The general rule is that costs “follow the event”; i.e., the loser bears the costs.  These may include expenses incurred on pre-litigation notices, lawyer’s fees, Court fees, expenses incurred in securing attendance of witnesses, etc.

The CPC indicates the categories of expenditure incurred by a litigant that may be awarded as costs, but the quantum is generally fixed at the discretion of the court.  Occasionally, courts levy exemplary costs for filing of false and/or vexatious claims.  Nominal costs may also be imposed during the interim stages for causing inordinate delay, etc.

Under Order 1 Rule 8 of the CPC, a group of plaintiffs can collectively bring a claim to court in a representative capacity for the benefit of a group or class of persons, with the permission of the court.  The concept of class action suits has permeated into various other legislative frameworks such as the Companies Act, 2013, the Consumer Protection Act, 2019, and the Competition Act 2002 in India.

Section 35 of the Consumer Protection Act, 2019 acknowledges consumer class actions, empowering registered consumer organizations and individual consumers to initiate class actions on behalf of the collective. Under this provision, one or more consumers, sharing a common interest or grievance, can initiate a class action on behalf of the affected group.

Under the Companies Act, 2013, both individual members and depositors of a company have the right to come together, either on their own or as a group, to seek justice and remedies from the National Company Law Tribunal. Section 245 of the Companies Act, 2013 also allows a member(s)/ depositor(s) to proceed against auditors, the audit firm, experts, advisors or consultants, for any fraudulent conduct on their part. This circumvents the rule of ‘privity of contract’ allowing members/ depositors to proceed against third parties for their acts done for the company.

Apart from the above, Section 37 of the Companies Act, in conjunction with sections 34-36, permits class action lawsuits concerning securities in cases involving misleading statements or the inclusion or omission of any information in the prospectus. Additionally, under Section 53N (4) of the Competition Act 2002, class action suits are permitted with the approval of the NCLAT (National Company Law Appellate Tribunal).

Similarly, the Insolvency and Bankruptcy Code, 2016 (“IBC”) allows for a class of creditors, i.e., homebuyers, to initiate action against the Corporate Debtor (pertaining to real estate builders/developers) as a collective redressal mechanism, in the capacity of “financial creditors”.

In India, the plaintiff is the dominus litis of the suit i.e., the plaintiff decides whom to make a party to the proceedings. In the event plaintiff fails to include a necessary or relevant party to the dispute, the said party can be added to the proceedings either upon their own request or upon the intervening application of any other party already arrayed in the suit, subject to court approval. If the court is satisfied that the presence of a particular person is necessary to effectively and completely adjudicate upon the disputes, it may, on application or suo motu, order any person to be added as a plaintiff or defendant. A third party may also apply to the court to be impleaded as a party, where it will have to satisfy the court as to how it is either a necessary or a proper party to the proceedings.

Additionally, when parties or the subject matter of multiple cases are identical or similar, these cases may be consolidated or tagged together. This consolidation allows for streamlined proceedings where all related cases are heard jointly, leading to the issuance of a common order encompassing all relevant matters and determining the rights of all the parties involved.

India does not currently have any law regulating third-party funding or restricting third parties (non-lawyers) from funding the litigation.  In 2018, Supreme Court, observed that there appears to be no restriction on third parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation. However, the Supreme Court categorically held that lawyers are prohibited from funding the litigation. India is yet to test the legality of arrangements entered by the third party funding the litigation, before a court of law.

Furthermore, amendments to the CPC in states such as Maharashtra, Gujarat, Madhya Pradesh, and Uttar Pradesh grant courts the authority to involve a third-party financier as a plaintiff in a lawsuit under certain conditions. However, such financiers may be required to furnish security for the payment of all costs incurred and anticipated by any defendant.

The COVID-19 pandemic initially had caused stagnation in the litigation due to the lockdown in the Country. However, within no time, the COVID 19 pandemic paved the way for technology to allow resumption of proceedings. The pandemic forced the courts to adapt to an online mode of dispute resolution.

Certain judicial pronouncements recently acknowledged the benefits of the use of modern technology, which not only help brought about paperless courts, but also reduce overcrowding of cases. Legal technology, a broad spectrum of tools and platforms designed to improve efficiency, accessibility, and cost-effectiveness within the legal system, became a lifeline for the justice system during this unprecedented time.

The COVID-19 pandemic acted as a catalyst in integrating technology in litigation. The Government and the judiciary have actively embraced technology tools in justice delivery processes. Justice delivery through virtual courts is likely to increase access to justice and result in an affordable and citizen friendly legal system.

Due to the infusion of technology, alternative dispute resolution mechanisms such e-negotiation, e-mediation, e-arbitration, Medola, Med-Arb, etc. are also being experimented in India.

Often the Parties to international commercial contracts opt for arbitration clauses, where the parties are free to choose the seat of the arbitration. In the event the Parties choose India as a seat or the jurisdiction to resolve their disputes, India offers affordable litigation as compared to other common law countries. Further, the basic tenets of the Indian law bends towards workability and enforceability of the commercial bargain entered by the parties and as such, the Parties have a great advantage to choose India as the jurisdiction. Amongst other benefits, the parties also enjoy flexibility to involve third parties and facilitate multi-party proceedings to ensure the fruitfulness of the proceedings.

Further, if the parties choose arbitration, the regulatory landscape (as evolved) ensures minimal interference in the proceedings and as such the parties can smoothly conduct the proceedings and resolve their disputes. However, at the same time, the arbitration regime allows for checks and balances to ensure proper disposal of the lis between the parties and if such adjudication falls short of fundamental tenets of the law, the same is also capable of appeal before the appellate courts.

One of significant drawback of litigating international commercial disputes in India is the length of the proceedings. The arbitration significantly reduces the length of the proceedings. But the traditional courts often take significant time to resolve and adjudicate the disputes finally. The other challenge faced by the litigants of the international commercial disputes is the enforcement of domestic judgments in foreign jurisdictions. To address this, countries have initiated and made efforts to facilitate the enforcement of judgments through agreements. Despite these efforts, enforcement can still prove complex and uncertain in some cases.

India has steadily reformed its alternative dispute resolution (ADR) regime in the past decade to transform itself into a global hub for international commercial arbitration and to streamline the enforcement of contracts. To achieve this, a series of changes were introduced to the Arbitration and Conciliation Act of 1996 in 2015, 2019 and 2020.

The most likely growth area for commercial disputes in India over the next five years is the international commercial arbitration. The country has made significant strides in reducing judicial interference in the arbitration proceedings, streamlining the procedural aspects of the arbitration and adopting global best practices in the arbitration.

With supportive court judicial pronouncements and recent legislative changes, including amendments to the Arbitration and Conciliation Act and the approval of the Mediation Bill 2021, organized commercial mediation is also expected to gain traction. Additionally, the surge in foreign investment, driven by India’s rise as an attractive economy for investment globally and improvements in the Ease of Doing Business rank, could result in many legal reforms to aid the foreign investments including the streamlining of dispute resolution for the same.

Over the next five years, several sectors are poised to witness rapid growth in India, which include the following:

1. Technology and Digitalization: With India’s increasing digital penetration and advancements in technology, sectors such as e-commerce, fintech, healthtech, and edtech are expected to experience substantial growth is likely to drive innovation and transform the dispute resolution in India.
2. Renewable Energy: India’s commitment to renewable energy targets is likely to attract significant investments and cause the drive towards sustainable development to be bolstered.
3. Healthcare and Pharmaceuticals: The COVID-19 pandemic has underscored the importance of quality healthcare services and infrastructure. Investments in healthcare infrastructure, telemedicine, medical devices, and pharmaceutical R & D are expected to accelerate.
4. Infrastructure and Construction: Government initiatives such as the National Infrastructure Pipeline (NIP) and investments in urban and rural infrastructure are expected to drive growth in the construction and allied sectors.
5. Electric Vehicles (EVs) and Clean Mobility: Owing to the growing emphasis on sustainability, government incentives, favourable policies, and investments in EV manufacturing, charging infrastructure, and battery technology are likely to propel growth in this sector.

In the next five years, technology is set to significantly impact commercial litigation in our jurisdiction. Stakeholders, including prominent justices, have highlighted the advantages of technology in expediting and cost-effectively resolving disputes.

The advent of new technology, accelerated by the COVID-19 pandemic, is poised to revolutionize litigation in India. Courts have embraced online systems for filing pleadings, conducting hearings via video conferencing, and even live streaming proceedings to enhance accessibility. The introduction of live transcription using Artificial Intelligence tools by the Supreme Court in February 2023 marks a significant milestone.

This shift towards technology-driven litigation is expected to reduce costs and increase efficiency, fostering a greater reliance on legal tech and innovation. The historic problem of overburdened courts is likely to become better by the use of technology. However, challenges persist for ordinary litigants, hindered by financial and logistical barriers in adopting these technologies. The next phase of development lies in decentralizing technology to make it accessible to all, which could lead to unprecedented decentralization of justice and improved access to justice in India.