The United Nations Commission on International Trade Law, which is known as the, “UNCITRAL”[1]  can be deemed to be regarded as a primary organ of the United Nations when it comes to the United Nations dealing with matters pertaining to international trade and laws mandating the trade between countries. The UNCITRAL is mandated by the United Nations General Assembly which aims to foster growth and development in international trade law and at the same time aims to harmonize the relations that persist between nations that are involved in trade. Under the scope of the framework which is established by the UNCITRAL, there are innumerable instruments which deal with aspects pertaining to Alternative Dispute Resolution methods. UNCITRAL primarily deals with rules pertaining to arbitration and there are rules which have been enumerated within the UNCITRAL model which are specifically applicable to ad hoc arbitrations, which come handy to various arbitration institutions. At the same time, it also enumerates upon the model laws of international commercial arbitration which have been incorporated and are adhered to by many States within their domestic legislations.

Indian Arbitration Act, 1996

The Arbitration and Conciliation Act, which was enacted by Parliament in the year 1996[2] is primarily drafted in consonance to the UNCITRAL Model Laws which enumerate upon the rules that an organization or a State may adapt or adhere to. This Act was passed since India signed the UNCITRAL treaty pertaining to Arbitration.

The primary focus here is to understand as to how the UNCITRAL model laws help countries in understanding the way in which they need to formulate their laws and at the same time how crucial it is to adopt the UNCITRAL rules dealing with Arbitration. It is imperative to understand that India partially adopted the UNCITRAL Model Laws as it specifically adopted its provisions pertaining to International Commercial Arbitration from the UNCITRAL model.

UNCITRAL and International Arbitration

With support from its working groups and an Arbitration and Conciliation/Dispute Settlement Working Group, UNCITRAL aimed to draft several instruments which could in turn help individuals and organizations in facilitating the settlement of their disputes while relying to Alternative Methods, instead of approaching a matter in the traditional way, i.e. by approaching a Court and filing for litigation. The UNCITRAL came up with the UNCITRAL Arbitration Rules, the UNCITRAL Model Law and the UNCITRAL transparency provisions.

1)      UNCITRAL Arbitration Rules: The UNCITRAL Arbitration Rules were primarily adopted by the UNCITRAL in the year 1976.[3]  The rules enumerated under the UNCITRAL Arbitration Rules majorly focus upon procedural rules which may aid the parties while dealing with their disputes. These rules basically enumerate the procedural aspects which the parties may agree when it comes to conducting an arbitral proceeding. These rules can be adhered to by the parties during the commencement of their arbitral proceedings as the same is a proceeding which arises as a result of their prevalent commercial relationship and these rules could be adhered to while carrying out ad hoc as well as institutional arbitration. These rules deal with all the stages in an arbitration proceeding right from the making of the arbitration agreement, to the composition and at the same time it also takes under its ambit the jurisdictional powers which have been conferred upon the arbitral tribunals. Lastly, it also takes under its scope the various aspects revolving around the arbitral proceedings and the form and the effect in which the award is to be passed by the arbitrator presiding over the arbitral tribunal.[4]

2)      UNCITRAL Model Law: In the year 1985, the UNCITRAL assumed the Model Law pertaining to International Commercial Arbitration, which was revised later on in the year 2006.[5] The Model law is not a piece which can be deemed to be regarded as binding, however, individual states are open to incorporate the various provisions of these model laws in their domestic legislations. It is imperative to note that Australia incorporated certain provisions from the UNCITRAL Model law in their domestic piece of legislation which is the, “International Arbitration Act, 1974”, this was after it was amended.

3)      UNCITRAL Transparency Provisions: Apart from establishing a model piece of legislation known as the UNCITRAL Model Laws, UNCITRAL also aimed to adopt a Convention on Transparency in Treaty-based Investor-State Arbitration in the year 2014.[6] The Convention particularly, can be deemed to be regarded as a piece of instrument which enables the Parties to an investment treaty, which is concluded before the 1^st Day of April, 2014, to show their consent with regards to the application of the UNCITRAL Rules pertaining to Transparency in Treaty-based Investor-State Arbitration.[7]

Advantages and Disadvantages of adhering to the UNCITRAL Arbitration Rules

The way in which the UNCITRAL Rules have been drafted, make it easier for the designating authorities to appoint arbitrators, however, these rules have been made much more comprehensive which has thereby strengthened the roles conferred upon the designating authorities, and these rules no longer are limited solely with the appointment of an arbitrator or the challenges that an organization may face when it comes to appointing an arbitrator. However, these rules also take under its ambit the relevant procedures which an arbitral institution may be required to follow when it comes to the proper supervision over arbitration proceedings in general. Therefore, if the arbitral institution or the arbitrators fail to adhere to the rules enumerated, or fail to perform any of the tasks enumerated under the rules, then under such circumstances, it could be replaced at the request of one of the parties to the proceedings.[8]

The Arbitration Rules could be deemed to be regarded as a set of rules which majorly focuses its aim towards strengthening the framework when it comes to dealing with ad hoc arbitration.[9], wherein limitations arise with regards to the deadlock that the parties may face when they find it difficult to come to a mutual ground in terms of settling the dispute during the pendency of the arbitration proceedings.

It is imperative to understand that the rules pertaining to arbitration as enumerated under the UNCITRAL have been drafted in such a way which aims to modernize the arbitration regime and in particular aims to taken into consideration the many issues surrounding the voids that have been left open either for interpretation or have not been adequately dealt with. Therefore, with the making of specific set of rules, which thereby deal with the process of transparency, the UNCITRAL seeks to change the arbitration regime or the arbitration practice.[10]

Conclusion

In a nutshell, it is imperative to understand that unlike the ICSID or the rules made by the ICC pertaining to arbitration, the UNCITRAL Rules on Arbitration, do not take into consideration the issues pertaining to enforcement per se. However, the award which is passed in favour of one of the parties to the dispute, which is made under the provisions of the UNCITRAL Rules, can be deemed to be regarded as something which will be enforced in consonance to the latter, which can be deemed to be regarded in accordance to the provisions on international rules of recognition and enforcement of arbitral awards, which may also include the New York Convention or the domestic laws of a nation if they are more in consonance when it comes to the aspects dealing with enforcement.[11]

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Synopsis

A single-judge bench of the Gujarat High Court passed a decision on the 3^rd day of November 2020, pertaining to the case related to the parties GE Power Conversion Pvt. Ltd. v. PASL Wind Solutions Ltd^[1]., (“Power Conversion”) which was presided by Honourable Mr. Justice Biren Vaishnav under Order XXI, Rule 11 of the Code of Civil Procedure^[2] read with the provisions of Section 47 of the Arbitration and Conciliation Act, 1996^[3] and read with the provisions of Section 2(1)(c), 7 and Section 10(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court’s Act, 2015. In this case, the court was of the opinion that a company which is incorporated within the territorial limits of India can opt to choose any other foreign country, not within the territorial limits of India as its seat for conducting arbitration proceedings. The Court further elucidated upon how the award passed by a foreign seated arbitration can be enforced in India or within the territorial jurisdiction of India according to the provisions enumerated in Section 48 of the Arbitration and Conciliation Act, 1996.^[4]  This judgement can be deemed to be regarded as one of the top judgements passed in the year 2020 and the decision laid down in this judgement can be deemed to be regarded as a judgement which would have a significant impact on the arbitration regime in India.

Background of the Case

The petitioner in the present case, GE Power Conversion (“GE”), and the respondent, PASL Wind Solutions (“PASL”), are two companies which are deemed to have been incorporated under the provisions of the Companies Act, 1956. The facts of the case are that the petitioner placed an order and issued three purchase orders to the respondent ordering converters which could be used in wind turbines. The parties came down to a settlement wherein an issue had arisen with regards to the quantity of goods which the respondent had supplied to the petitioner. It is imperative to understand that this settlement agreement consisted of a clause pertaining to dispute resolution, if at all the settlement between the parties lapsed. One of essential tenets of this clause consisted that if at all a dispute was to arise between the parties to the agreement, then such matter should be resolved by conducting an “Arbitration Proceeding in Zurich”, by adhering to the institutional rules made by the International Chamber of Commerce (hereinafter referred to as, “ICC”). Furthermore, it is imperative to understand that the agreement which the parties had entered into was made under the provisions of the Indian Contract Act, 1872. The parties to the settlement agreement could not amicably settle their disputes and therefore, PASL went ahead and filed for the initiation of an arbitration proceeding on the grounds that the GE Power Conversion is not adhering to the provisions of the settlement agreement. Thereafter, the seat for arbitration was decided as Mumbai, India. During the pendency of the arbitral proceedings, the petitioner was of the opinion that the ICC Tribunal has no jurisdiction when it comes to determining the proceedings and two Indian corporations or two Indian parties cannot determine a foreign seat for arbitration. However, the Tribunal did not agree with the view contended by the Petitioner and rejected the claim made by the Petitioner. However, in consonance to this award, the petitioner filed for interim measures before the Honourable Gujarat High Court in order to enforce the award passed by the Tribunal under the provisions of Section 48 of the Arbitration and Conciliation Act, 1996 and under the provisions of Section 9 of the Arbitration and Conciliation Act, 1996^[5] which enumerates on the provisions dealing with Interim Measures.

Issues Raised

The issues which were raised before the Gujarat High Court are as follows:

• Whether the impugned Award can be deemed to be regarded as a Foreign Award?
• Whether the impugned Award being an Award, be enforced within the territorial jurisdiction of India and can it be enforced by the Courts in India?
• Whether a petition filed under the provisions of Section 9 of the Arbitration and Conciliation Act, 1996 is maintainable before the Gujarat High Court?

Decision of the Court

The Gujarat High Court was of the view that the provisions of the law pertaining to domestic arbitration and the International Commercial Arbitration are enumerated in Part I of the Act, however, Part II of the Act specifically deals with the provisions pertaining to the “enforcement of foreign awards.” Therefore, the Court was of the opinion that the underlying principle of the Act shows a clear demarcation between Parts I and II, which can therefore be applied when it comes to the different fields. Apart from this, the Gujarat HC reiterated that when it comes to analysing an arbitral award and deeming such an award as a foreign award, due regards need to be given to the provisions enumerated under Section 44 of the Arbitration and Conciliation Act, 1996, which portrays an exhaustive definition of a “foreign award”, and the provisions enumerated in Part I have no basis when it comes to the determination of such an Award. The Gujarat High Court further noted that the origin of the parties to the dispute has no standing when it comes to the application of Part II of the Act. The Court further opined that for an impugned Award to fall under the scope and the ambit of Section 44, the requirements could be determined only when the seat of the award and the applicability of the New York Convention is in line with the provisions of the agreement.

With regards to understanding the seat of arbitration, the Gujarat HC enumerated that it was clearly stated in the settlement agreement that if at all the parties cannot adhere to the provisions of the settlement agreement, then they can refer such matter for Arbitration and an Arbitration Clause was very well inserted which clearly stated that the parties wanted the Arbitration to be a foreign seated arbitration, which would be held in Zurich. This Gujarat High Court relied upon the decision passed by the Supreme Court in the case of BGS Soma v. NHPC ^[6], wherein the Honourable Supreme Court came up with a test in order to understand when a chosen venue for Arbitration can be deemed to be regarded as a seat of Arbitration. In this case, it was held that, “The use of the phrase, “arbitration proceedings “ or”venue “ when it comes to understanding a place signified that the entire arbitration proceeding can be conducted or carried on the place which has been decided. However, in this case, the venue is the seat of the arbitration. However, if the arbitration agreement states that, “tribunals are to meet or have witness, experts, or parties” at a particular place, then it indicates that the hearings shall only be conducted at the venue which has been specified and in such a case, such a venue cannot be deemed to be regarded as the seat. If the arbitration agreement elucidates upon arbitration proceedings per se, then the proceedings “shall be held” at a particular venue and the indication is that the arbitration proceedings are anchored at the said place and the choice of the venue is also the seat of arbitration. However, the above tests are subject to there being no other “significant contrary indicia” which shows that the said place can simply be deemed to be regarded as a venue and not as a seat for arbitration.” ^[7]   The Gujarat HC was of the view that the Order for the Jurisdiction of the Arbitrator, which could be deemed to be regarded as a seat of Arbitration was Zurich, however, this was never a moot point and was never challenged by either parties to the dispute. Apart from this, the transcripts and the correspondence which took place during the pendency of the Arbitration Proceedings were submitted in the Court and the Court came to the conclusion that the Arbitrator and the parties to the dispute were clear with regards to the fact that the seat of arbitration was Zurich, and that Mumbai was simply chosen as a “venue” which was convenient for both the parties to the dispute.

The Gujarat High Court was of the opinion that the juridical seat with regards to the arbitration proceeding was in fact, Zurich. The Court also threw light upon the fact that the Central Government had pronounced Switzerland as a territory to which the New York Convention applied and the ingredients provided for were enumerated in Section 44 of the Act. Therefore, the High Court came to the conclusion that in the present case, the impugned Award was in fact, a foreign Award as per the provisions of Part II of the Act.

After the Court proved that the said Award was a foreign award, the Gujarat High Court delved into the aspect of enforceability of such an Award. In order to understand the aspects pertaining to enforceability, the Court delved into the various provisions of Section 47 of the Act and checked whether the Award fell within the ambit of Section 47.^[8] The Gujarat HC opined that since the assets which were owned by the Respondents, fell within the jurisdiction, the said Award had the jurisdiction to be enforced and the Court also had the power and the jurisdiction to hear such an Enforcement Petition. The Gujarat High Court relied upon the judgement passed by the Supreme Court in the case of Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc.^[9] (“BALCO” Case).

The Gujarat High Court then focused upon whether the Respondent company had raised any grounds with regards to the provisions of Section 48 of the Act for the Court to deny the enforcement of the said Award. The Court analysed that the provisions of Section 48 of the Arbitration and Conciliation Act, 1996, have quite a narrow scope. The argument which was put forth by the Respondent Company’s counsels was that the provisions of Section 48 of the Act, were restricted only to two Indian parties to an arbitration proceeding providing the seat of arbitration to be outside the territorial jurisdiction of India, which would be deemed to be regarded in contravention of the provisions enumerated under Section 28^[10], read along with the provisions of Section 23^[11] of the Indian Contract Act, 1872. The Counsels for the Respondent relied upon the case of TDM Infrastructure^[12] and contended that such an agreement could be deemed to be regarded as ultra vires to the public policy of India. It is imperative to throw light upon the provision of Section 28 of the Indian Contract Act, 1872. Section 28 of the Contract Act deals with Agreements in restraint of legal proceedings and how these agreements could be deemed to be regarded as void. Basically, Section 28 delves into agreements wherein parties are restricted to enforce his/her legal rights as they may be deemed to be regarded as void to that extent. However, the Gujarat High Court noted that the Explanation 1 to the provisions of Section 28 does not take into its ambit, the application of the various provisions pertaining to arbitration agreements. The Gujarat HC further enumerated upon the fact that it is extremely clear to the parties to the contract that they may resolve their disputes amicably in a foreign court which could be deemed to be regarded as a “neutral court”. The Court opined that Section 28 of the Contract Act deems that Indian parties are prohibited from designating a foreign court and vesting it with exclusive jurisdiction to supervise their arbitration proceedings.^[13]  The Court then came to the conclusion that the said Award in question can be deemed to be regarded as an award which is enforceable in India.

Another imperative aspect which was brought forth by way of this judgement was with regards to the provisions of Section 9 of the Arbitration and Conciliation Act, 1996, which deals with Interim Measures. The issue which was raised before the Court was regarding whether a petition can be maintained before the Court under the provisions of Section 9 of the Arbitration Act. The Court was of the view that since the seat of arbitration was pre-decided by the parties as Zurich, therefore, it cannot be further deliberated that the said Award was a result of a domestic arbitration which fell under the ambit of Part I of the Act. Section 2(2) of the Act, enumerates that the provisions of Section 9 are applicable to an ICA, however, there are certain prerequisites which need to be followed, i.e. whether there exists any contract or agreement between the parties. However, the Court was of the opinion that such an agreement did not matter since in the present case, neither parties to the dispute were incorporated outside the territorial jurisdiction of India. The Petitioner contended that “international commercial arbitration” as elucidated in Section 2(2) of the Act is a misnomer and the petitioner therefore opined that in the case of Trammo DMCC v. Nagarjuna Fertilisers and Chemicals Limited^[14]The Bombay High Court had given an interpretation of the provisions enumerated in Section 2(1)(e)(ii) of the Act, and had reiterated upon the words, “international commercial arbitration.”. However, the Gujarat High Court reiterated that, on a bare reading of the provisions of Section 2(2), it can clearly be understood that the provisions of Section 9 of the Arbitration and Conciliation Act, 1996, are perfectly application to an international commercial arbitration proceeding. The Gujarat High Court did not accept the view put forth by the Petitioner with regards to the use of the term, “international commercial arbitration” being a misnomer. The Court held that such an interpretation of the said term would not be in consonance to the principles of statutory interpretation, wherein the purpose of the law is found from the words that are used in order to draft it. The Gujarat High Court enumerated that a petition under Section 9 of the Act could not be maintained.

Conclusion

Two Indian parties choosing an international seat of arbitration has always been thoroughly deliberated upon, however, in the present case, the Gujarat High Court has clarified the said issue by strictly adhering to a textual interpretation of the provisions of the piece of legislation governing the Arbitration regime in India. Vide this judgement, it has been made clear that two Indian parties can choose another country as a seat for conducting their arbitration proceeding, however, the parties need to be aware of the fact that they would not be able to take any action when it comes to the enforcement of such a foreign award and this is in consonance to the view taken by the Gujarat High Court in the present case.

^[1] R/Petn. Under Arbitration Act No. 131 of 2019 with R/Petn. Under Arbitration Act No. 134 of 2019.

^[2] Rule XXI, Rule 11- Oral Application-Where a decree for the payment of money the court may, on oral application of the decree holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgement debtor, prior to the preparation of a warrant if he is within the precincts of the Court.

^[3] Section 47-Evidence, The Arbitration and Conciliation Act, 1996.

^[4] Section 48- Conditions for enforcement of foreign awards, The Arbitration and Conciliation Act, 1996.

^[5] Section 9-Interim Measures, etc. by Court, The Arbitration and Conciliation Act, 1996.

^[6] Civil Appeal No. 9307 of 2019 arising out of SLP (Civil) No. 25618 of 2018.

^[7] BGS Soma v. NHPC, Civil Appeal No. 9307 of 2019 arising out of SLP (Civil) No. 25618 of 2018.

^[8] Section 47-Evidence, The Arbitration and Conciliation Act, 1996.

^[9] (2012) 9 SCC 552.

^[10] Section 28- Agreements in Restraint of Legal Proceedings, void., The Indian Contract Act, 1872.

^[11] Section 23- What considerations and objects are lawful, and whatnot, The Indian Contract Act, 1872.

^[12] TDM Infrastructure (P) Ltd. v. UE Development India (P) Ltd., (2008) 14 SCC 271.

^[13] ELP Arbitration: Update, https://elplaw.in/wp-content/uploads/2020/11/ELP-Arbitration-weekly-update-GE-Power-Conversion-India-v.-PASL-Wind-Solutions-.pdf.

^[14] 2017 SCC Online Bom 8676.

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We, at Legal Desire, got the opportunity to have an interaction with Adv. Jharna Jagtiani and she gladly shared her insights with us with regards to how Alternative Dispute Resolution Regime in India and how it could be deemed to be regarded as a significant and a much easier way to resolve disputes in the future.

Advocate Jharna Jagtiani shared her views on how she decided to get into the legal field and how her life was at her law college and one can find her responses here:

Could you tell us something about how you decided to get into the legal field and how was your life at your law college? 

Advocate Jharna Jagtiani: To be very honest with you, nothing was planned. During my high school days, if anyone would have asked me what I wanted to do, I would have said- ‘I have no clue’. Although, one factor that might have contributed to having so many career paths and changes thereafter, is that I absolutely love indulging myself, especially in learning new things, to be more precise- subjects. I have always had this feeling that no matter how much I am reading, that’s just a drop in the ocean. It is imperative to read, is what I feel, because the more you read, the more you tend to learn and understand things better and reading is something which is extremely necessary for an individual in the legal field.  There was always some or the other book that I lined up for myself before I was finished with the previous one. Nothing really motivated me to change the career line, nor was anything planned. I wanted to go with the flow and see where I end up! My life in college was exactly how I described it previously. It was just me trying to figure out and learn more things and see where it led me and how it would shape me into a better person that I am today.

Could you tell us something about your career and the role you play, i.e. you are an Advocate, and you are also an Arbitrator and a Mediation coach, so could you tell something about how you got onto this journey and chose Arbitration and Mediation as an option? 

Advocate Jharna Jagtiani: Alternative dispute techniques really work in settling disputes as compared to the traditional court proceedings that go on for years together. 

There are two-fold roles in mediation. If you’re the mediator, it is the duty of the mediator to see that there is free flow of information sharing, without conceiving any material facts and at the same time ensuring that the parties are continuing dialogue. It is pertinent to make sure they move forward in the discussion and proceedings rather than their dialogue coming to a halt. Now understand this, if you represent a party in mediation, then your job is to have a clearer picture of the need of your client while looking for a mutual settlement. 

In case of arbitration as well, the roles are quite similar. The one distinction is that the arbitrator has to give an award called an ‘arbitral award’ which is equivalent to a decree passed by a court and is binding on the parties to the dispute. Therefore, in case of arbitration, the arbitrator has to be sure and precise while giving an award. 

In other words, I do believe in the work that I do to earn a living and I hope, till the time I am in this profession, I would never be partial or biased to any party. 

According to you, what is ADR and at present, what do you think is the situation of the ADR regime in India? 

Advocate Jharna Jagtiani: I believe with time, the alternative dispute resolution methods have become more mainstream than the traditional court proceedings in a few matters, especially in matters pertaining to contractual breaches, few matrimonial disputes involving judgement in persona, disputes arising of subordinate rights in matters pertaining to Intellectual Property Rights and at the same time ADR is referred to while dealing with certain specific labour disputes. The situation in our country right now is that not many people know and understand what ADR is. The following steps will definitely improve the ADR regime in our country- 

i. The main motive for ADR to solve more cases and make amends to their disputes. 

ii. More awareness amongst lawyers about benefits of ADR practice, as they do not encourage their clients to resolve their disputes using ADR mechanism. At the same time, I am also of the opinion that it is highly imperative for the lawyers to have relevant training.

iii. Empanelling trained mediators based on their merit and skills and on the basis of their advocacy practice.

According to you, how much significance does ADR have in today’s developing Indian Economy? 

Advocate Jharna Jagtiani: ADR is basically a faster mode of settling disputes. In a country like India, where there are so many people with so many problems and grievances, we require a time efficient mode of settlement. The problem of pending cases can be resolved quickly with ADR in the picture. India as a country requires this more than any other country. 

The Bar Council of India passed a notification stating that Mediation and Conciliation should be deemed to be regarded as a compulsory subject in the LLB Courses, what is your opinion on this? 

Advocate Jharna Jagtiani: I am of the opinion that this is a great step as ADR is not a subject that has been given prime importance in college. It’s not been treated as one of the core subjects which really does not help students in the long run, especially those who want to venture in the field of ADR. Hence, this step comes as a way forward in improving the ADR regime in India.

Do you think it is important for students to learn about ADR in the initial days? 

Advocate Jharna Jagtiani: Most certainly. However, that depends on the education system of our country. The onus is on them to understand the importance of the subject and introduce it in the initial stages so that students get the opportunity to have in depth knowledge about the subject. The sooner they get to learn; the more exposure they get.

In other countries, arbitration training is given to law students which opens innumerable opportunities for them and makes venturing into arbitration a viable career option for them, do you think the same will happen in India? 

Over time, yes, it will happen. There is still so much in the field of ADR that students and even advocates sometimes are unaware about. With time, the importance of ADR will be known and understood. The onus is on us to shed light on the importance and usefulness of ADR. I think having a theoretical and practical approach for law students in universities will definitely help them and I think this change is slowly happening. 

In India, ADR hasn’t gained as much momentum as it has in other countries and jurisdictions and India cannot still be deemed to be regarded as an arbitration friendly jurisdiction, do you think this would change? 

Advocate Jharna Jagtiani:  Yes, most certainly. I feel ADR is still a very unexplored field or it could be said that the ADR regime in India is still in its nascent stages. People may know about it, however, it has not reached its full potential yet. I think over time; people will get used to the idea of ADR in India. It is only a matter of time. 

Could you tell us a little about what you do as a Mediation Coach? 

Advocate Jharna Jagtiani: Mediation coaching is a form of conflict coaching.  The coach assists one of the parties who wants help with matters that are beyond the usual scope of the mediator’s role. The role of a coach in terms of preparing and supporting a party for mediation is also quite different from a client’s advocate, who may take a more adversarial approach that would focus majorly on strategy and result. 

My role as a mediation coach varies of course, depending on the circumstances and client’s objectives. For instance, as a mediation coach I help the client anticipate possible reactions from the other side and engage him or her to practice effective ways to respond. Coaches act as “the opposite or other side” and provide feedback that helps the person in his/her efforts to respond to a challenging interaction.

Lastly, would you like to give some advice to our young readers who are probably pursuing law and wish to make a career in ADR? 

Advocate Jharna Jagtiani: Being a lawyer myself, I find these unprecedented times very challenging. To be always aware and updated about the changes around you is really important as we are moving faster to the world of electronics and the internet. If someone had asked me whether I believe that one day the courts would be operating online, I would have probably brushed the thought of laughing but now, this is our reality. Always be open to new challenges, opportunities and learning something new because knowledge is something no one can take away from you.

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With the advancements in the field of Alternative Dispute Resolution, a lot of matters are referred to arbitration and the use of international arbitration is rising. There are a number of arbitral institutions which provide services when it comes resolving international disputes and with the advancements in technology and artificial intelligence, a lot of firms are resorting to unique ways when it comes to conducting Arbitration proceedings via the Internet. Due to the current pandemic situation, a lot of international arbitration proceedings were hindered, however, in the increasingly crowded market, innumerable efforts have been taken by arbitral institutions when it comes to understanding its party’s needs. A lot of arbitral institutions have issued their own arbitral rules which ensure that the international arbitration proceedings are conducted with utmost efficiency and transparency, thereby maintaining its fairness and legitimacy.

Issues Concerning Arbitral Rules

Arbitral Rules take under its ambit innumerable issues which deals with aspects pertaining to the appointment of arbitrators, the evidentiary powers conferred upon arbitrators and also deals with matters concerning to the final award passed by the arbitral tribunals. With regards to the arbitral rules pertaining to international arbitration, various institutions have their own sets of rules which they have concurred and enumerated upon after years of accumulated knowledge and experience whilst dealing with arbitration proceedings and it is interesting to note that a number of these institutions adhere to similar rules or there are striking resemblances between the rules that they follow. For instance, a lot of arbitral rules enumerate that parties can, at their own conjecture, select the applicable “rules of law”. This can be deemed to be regarded as a formula that allows the parties the flexibility to choose the applicable law as per their choice and it also includes soft law instruments like the UNIDROIT Principles.[1] If a party to the dispute is not present, then under such circumstances, the consent with regards to the application of laws lies in the hands of the arbitrators who have enough powers conferred upon them to adhere and apply the provisions of law that they consider “appropriate”. The arbitrators are thereby under no obligation to adhere to a strict analysis of any applicable conflict of laws.

Unique Features of the Arbitral Rules

Certain arbitral rules have features which can certainly be deemed to be regarded as unique in nature. Some of these features are specifically aimed towards providing fair solutions to complicated procedural questions that may pop up during the pendency of an arbitral proceeding. It is imperative to highlight that the International Cent for Dispute Resolution rules have certain unique provisions enumerated under Article 22.[2]  The provisions of Article 22 enumerate that if the case at hand deals with different rules pertaining to the legal privileges granted to the parties, their counsel, or the documents filed by them, then under such circumstances the arbitrator presiding over the matter should adhere to and apply to the highest level of protection. This basically means that, “The arbitral tribunal shall take into account applicable principles of privilege, such as those involving the confidentiality of communications between a lawyer and client. When the parties, their counsel, or their documents would be subject under applicable law to different rules, the tribunal should, to the extent possible, apply the same rule to all parties, giving preference to the rule that provides the highest level of protection.” [3]  However, under other occasions, it is imperative as per provided under the rules that the arbitrators need to consider the balance that they wish to maintain between maintaining the efficiency of the proceedings or whether they wish to adhere and protect the autonomy of the parties to the dispute. In fact, certain arbitral institutions have also made innovations when it comes to implementing rules pertaining to the number of arbitrators that need to be appointed in cases which have been expedited. In certain cases, the agreements between the parties do require the appointment of three arbitrators, however, certain arbitral institutions have come up with rules wherein the institutions have the power with regards to the appointment of the number of arbitrators who need to be assigned to a particular case.

Perception of the Parties to the Dispute

The changes which certain arbitral institutions have made with regards to the rules that they adhere to, could be deemed to be regarded as a way forward, however, whether these rules and changes will be proven to be successful depends upon the parties’ perception of them. If these changes are welcomed with open arms, then they could be adhered to and applied by other arbitral institutions as well. It is imperative to understand that the idea of the appointment of an emergency arbitrator is one such successful idea which has been incorporated in the laws of a lot of countries as well. The International Centre for Dispute Resolution was the first organization to adopt the provisions pertaining to the appointment of an emergency arbitrator in the year 2006, which did not require an express opt-in by the parties to the dispute. It is imperative to note that the provisions pertaining to the appointment of an emergency arbitrator was surely a way forward and in fact a lot of arbitral institutions have been incorporating these provisions in their rules.

Conclusion

In a nutshell, it is imperative for arbitral institutions to constantly make an attempt in order to adjust their rules and incorporate new ideas with regards to how it could conduct arbitral proceedings in swiftly thereby maintaining its fairness and transparency. A lot of parties prefer Alternative Dispute Resolution as a way to resolve their disputes expeditiously and the entire scenario revolving around institutional arbitration is thoroughly changing and evolving. Therefore, for an arbitral institution which majorly presides over International Arbitration proceedings, needs to make rules and regulations which could prove to be an upper edge for such institutions in the long run.

References

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Section 9 of the Arbitration and Conciliation Act, 1996 deals with the Interim measures which a party to an arbitral proceeding may ask for before the commencement or during the pendency of an arbitral proceeding or at a particular time to the adjudicating authority. The adjudicating authority or the court may then pass an interim measure which is in line with the provisions provided under Section 36 of the Arbitration and Conciliation Act. This section provides the court the power to invoke interim measures of protection. The provisions under Section 9 provide a complete list of protections which the court can offer while deliberating an arbitral proceeding or before the commencement of an arbitral proceeding. Section 9 can be deemed to be regarded as one of the most important provisions falling under the scope and the ambit of the Arbitration and Conciliation Act, 1996. In fact, this is one of the provisions of the act which is invoked majorly by the law courts.

The interim measures which are laid down under the scope of Section 9 can be deemed to be regarded as those provisions which are extremely crucial to avoid the occurrence of a damage or to prevent the loss from the focus of attention of the dispute or from the subject-matter of the dispute or the case in the interim period, that is, before the matter is concluded or adjudicated by an arbitral tribunal.

Commonly, the provisions guaranteed under Section 9 can be deemed to be regarded as a relief which is quite imperative during the commencement of an arbitration proceeding and a lot of times, the matter can be simply be won when the court or the adjudicating authority provides a relief on the basis of the provisions laid down under this section.

Scope of Section 9

Under the scope of Section 9, the adjudicating authority or the arbitral tribunal has been conferred with a number of powers that enable it to provide interim measures as a means of protection as it deems fit to the court. It can confer interim measures such as providing interim custody or sale of goods which are the main focus of attention of the arbitration proceedings. It can also pass orders helping the parties to secure amounts in dispute. It can also grant an interim injunction stopping an activity and can also deal with the appointment of a receiver or a guardian. The following are the measures which the court can provide under the provisions guaranteed by Section 9.

Section 9- Interim measure, etc., by Court- “(1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a court-

i)                   For the appointment of a guardian for a minor or person of an unsound mind for the purposes of arbitral proceedings; or

ii)                 For an interim measure of protection in respect of any of the following matters, namely: –

a)      The preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

b)      Securing the amount in dispute in the arbitration;

c)      The detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

d)      Interim injunction or the appointment of a receiver;

e)      Such other interim measure of protection as may appear to the Court to be just and convenient,

And the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

(3) Once the arbitral tribunal has been constituted, the Court shall not entertain any application under sub-section (1), unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious.”[1]

The Delhi High Court in the case of Leighton India Contractors Private Ltd. v. DLF Ltd.[2]  provided that the ambit of Section 9 of the Arbitration and Conciliation Act, 1996 is quite huge and it can be deemed to be regarded as quite extensive. This provision under no circumstances limits the powers which have been conferred upon the adjudicating authorities. The adjudicating authorities have been conferred with a wide range of powers, however, its authority and its powers are quite well-recognized. In the case of Adhunik Steels Ltd v. Orissa Manganese and Minerals[3], the court held that despite the court having wide powers conferred upon them the authority of the court is not unbridled. The court further elucidated that the well-recognised principles which govern the court in the grant of interim orders apply to the various petitions filed by the parties under the provisions of Section 9.[4]

With regards to an injunction passed by the adjudicating authority against the calling of bank guarantees is concerned, the High Court of Delhi in the case of Halliburton Offshore Services Inc. v. Vedanta Limited[5], reiterated that, “if fraud, irretrievable injury or special equities are not proved, then under such circumstances an injunction cannot be granted.” [6]  Further, with regards to collecting the necessary amounts due, the Delhi High Court in the case of Goodwill Non-Woven (P) Limited v. Xcoal Energy & Resources LLC [7] passed a judgement on the 9^th day of June, 2020 and reiterated that simply because the petitioner is not in the position to invoke the arbitration proceedings in light of the Covid-19 pandemic does not mean that the case has no standing. The petitioner was, however, not able to convince the Court for the granting of the interim relief. The petitioner also relied upon the various tests which were laid down in the case of BMW India Private Limited v. Libra Automotives Private Limited & Ors.[8] stating the various tests which were laid down in this case for the granting of the interim relief, however, the court did not pass any relief in this case.

Section 9 in consonance to Section 17 of the Arbitration and Conciliation Act, 1996.

According to the 2015 amendment which was made to the Act, Section 9 of the Act was amended so that it could identify the powers provided under the scope of Section 17 (which was deemed to be at par with the provisions provided under Section 9) and this would help in reducing the work of the courts while granting interim protections once the adjudicating authority or the arbitral tribunal was setup. However, the 2015 Amendment neither curtailed the powers of the courts nor did it reduce the work of the courts. In fact, the powers conferred upon the courts to grant interim protection can still be deemed to be regarded of great significance. It is imperative to note that before a tribunal is constituted and after an award is passed, the power to provide an interim protection or an interim relief lies solely in the hands of the court. The amendment which was made in 2019, omitted the words and figures, “or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36” [9] from Section 17 of the Arbitration and Conciliation Act. It can be said that once an arbitral tribunal is set up in consonance to the provisions guaranteed under Section 9(3)[10] of the Act, then the adjudicating authority cannot deal with an application provided under the provisions of sub-section (1), unless it is of the opinion that the situation which exists may not deem the remedy provided under the provisions of Section 17 as efficacious. The Delhi High Court, in the case of Benara Bearing & Pistons Ltd v. Mahle Engine Component India Pvt. Ltd.[11] held that the provision guaranteed under Section 9(3) of the Act cannot be deemed to be regarded as a privative clause with regards to the powers which are conferred upon the court and the court’s jurisdiction which is provided under the provisions of Section 9 cannot be taken away. The court further reiterated that if an application falls under the scope of providing an efficacious remedy under Section 17 of the Act, then under such circumstances, an immediate interim relief shall be granted by the arbitral tribunal as was also provided in the case of Bid Services Division (Mauritius) Limited v. GVK Airport Holdings Pvt.Ltd & Ors.[12] which was also deliberated before the Delhi High Court.

However, there may be other circumstances too, under which it may not be advisable to obtain an efficacious remedy or an efficacious interim relief from the tribunal as was held in the case of Bhubaneshwar Expressway Pvt. Ltd. v. NHAI[13] , wherein the tribunal was setup, however the arbitration proceedings could not commence as one of the co-arbitrators was disqualified. The Delhi High Court then laid down that the remedy which is guaranteed under the scope and ambit of Section 17 cannot be deemed to be regarded as efficacious and it would be imperative for it to deal with the petition under the provisions of Section 9 of the Act. All in all, it is clear that under the provisions of Section 9 of the Act, it can be said that the adjudicating authority has the powers conferred in it to pass the necessary orders against the third parties as provided by the Delhi High Court in the judgement passed by it in the case of M/S Value Advisory Services V. M/S ZTE Corporation & Ors[14]. However, what is not clear is whether there are powers vested in the tribunal which enables the tribunal to pass various orders against a third party. Therefore, it is imperative to understand that in the cases wherein the interim relief is prayed for against a third party; the parties shall approach the court under the provisions of Section 9 of the Act.

It is imperative to understand the judgement passed by the Delhi High Court in the case of Hero Wind Energy Private Limited v. Inox Renewables Limited and Ors[15], wherein a petition was filed under the provisions of Section 9 of the Act before the Delhi High Court post the constitution of an arbitral tribunal. Amongst all the other grounds taken by the petitioner to prove the maintainability of the petition under the provisions of Section 9, it is necessary to understand one of the most important grounds taken by the petitioner. The petitioner prayed for a relief against a non-signatory or against a third party to the arbitration agreement. The Court, however, deliberated upon the same and rejected the contention put forth by the petitioner on the basis of the principles laid down in the judgement of Chloro Control India Pvt. Ltd v. Severn Trent Water Purification Inc. and Ors.[16]

Section 9 and Emergency Arbitrator.

A number of arbitration institutes based in India as well as abroad provide a provision for the availability of an Emergency Arbitrator. The main aim of this provision is to ensure that an adjudication procedure is carried out on an urgent interim relief which cannot perhaps wait until the setup or the constitution of a tribunal is done. Therefore, a petitioner, instead of making an application under the provisions guaranteed under Section 9 of the Act, can directly approach and get a relief by the Emergency Arbitrator. The passing of an order granting an interim relief can be passed or can be granted by Emergency Arbitrators. However, the question whether Emergency Arbitrators can grant an interim relief in arbitration proceedings which are majorly conducted in the foreign countries is still uncertain. At present, there are no provisions laid down in the Act which provide for the granting of an interim relief passed by an Emergency Arbitrator when the arbitration proceedings are conducted abroad. The provisions under Section 2(2) of the Arbitration and Conciliation Act, however provide the provisions for Domestic Arbitration or arbitration proceedings which are conducted in India, however it also provides that, “…subject to an agreement to the contrary, the provisions of sections 9, 27 and clause (a) of sub-section (1) and sub-section (3) of Section 37 shall apply to international commercial arbitration, even if the place of arbitration is outside India…”[17] This simply means that the provisions of Section 2(2) state that the provisions guaranteed under the ambit of Section 9 can very well be applied to arbitration proceedings which are seated in a foreign country, outside India. It is imperative to highlight the case of Raffles Design International India Pvt.Ltd. v. Educomp Professional Education Ltd.[18]. In this case, the parties reached out to the Emergency Arbitrator and filed a petition under the provisions of Section 9, demanding the same relief which they approached the Emergency Arbitrator with. The Delhi High Court, in this case, submitted that it can accept the petition filed under the provisions of Section 9 and reiterated that the parties are not disallowed from approaching the Emergency Arbitrator and at the same time approaching the Court seeking for the same relief under the provisions of Section 9. The High Court stated that it can deliberate upon such a petition and pass an interim relief on the said matter if it deems fit. A matter resembling the abovementioned case came up before the Delhi High Court recently. In the case of Mr. Ashwani Minda & Anr v. U-Shin Ltd & Anr.[19], wherein the parties approached the Emergency Arbitrator seeking relief, however, the Emergency Arbitrator did not grant any relief. The Emergency Arbitrator was appointed by the Japan Commercial Arbitration Association (JCAA). The petitioner later approached the High Court of Delhi and filed a petition under the provisions of Section 9 of the Act for the grant of an interim relief. The Delhi High Court, however provided that the petition could not be maintained as the parties had overlooked the provisions guaranteed under Part I of the Act, including the provisions guaranteed under Section 9. The court further elucidated that if a party approaches an Emergency Arbitrator, then the petitioner in such a dispute cannot further go on to approach the High Court for the redress of the same relief if no relief is granted by the Emergency Arbitrator; also, the court provided that the High Court is not a court of appeal which deals with the orders passed by an Emergency Arbitrator. The Delhi High Court, therefore, rejected the petition filed by the petitioner in this case. The Court passed the abovementioned judgement keeping in mind the judgement passed by it in the Raffles[20] case. The court elucidated that in the Raffles case, applicability of Section 9 of the Act was not excluded as there was no specific clause or provision which specially dealt with the exclusion of this provision. The next point which the court elucidated upon was that the rules under which the arbitration proceedings were seated in the Raffles case was under the SIAC Rules, which granted the parties to the proceedings to seek interim relief by approaching a court. However, in the case of Mr. Ashwani Minda & Anr v. U-Shin Ltd & Anr.[21], the parties to the dispute had not accepted the applicability of Section 9 of the Act and this rendered it impossible for them to seek a relief from the Court. The Court, after passing the judgement in the Ashwani Minda case[22], held that the parties who first approach the Emergency Arbitrator and then file a petition under the provisions of Section 9, even when there are no explicit provisions provided which render the provisions of Section 9 to be excluded, cannot be entertained by the Court. It is pertinent to note that in the case of Domestic Arbitration proceedings, there has been no solid precedent passed by the Court which specifically deals with these aspects concerning an Emergency Arbitrator.

Conclusion

In a nutshell, it can be stated that the provisions guaranteed under the scope and the ambit of Section 9 are very imperative to understand and these provisions can be deemed to be regarded as a crucial remedy while an arbitration proceeding is seated. The Courts and the legislative bodies are working towards ensuring that parties no longer adhere to the provisions of Section 9 and keep seeking interim relief under it, as the grant of an interim relief in itself means that one of the parties has partially won the matter. The Courts and the legislative bodies wish to ensure that the parties do not approach the court seeking an interim relief after an arbitral tribunal is constituted, however, this can only happen after the remedy provided under Section 17 of the Act becomes totally efficacious. The Courts have carefully scrutinized a number of such petitions filed before it and has exercised the powers of Section 9 to the bare minimum. The Courts are taking cognizance of these petitions carefully as India is slowly progressing towards becoming an arbitration friendly jurisdiction. Regardless of all this, the provisions guaranteed under Section 9 are very essential as a number of international arbitration institutes contend that the granting of an interim relief by a domestic court in certain cases is quite necessary and the provisions of Section 9 will continue to be enforced by the parties to an arbitration proceeding.

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The beginning of the trade war between the magnanimous superpowers, namely- China and the United States of America, marked a massive decline in China’s liquefied natural gas (LNG) imports from the USA. The tensions pertaining to the trade war which was going on between the People’s Republic of China and the United States of America, has given rise to a number of issues and a lot of countries and their analysts are deliberating upon who would emerge as the true winner in this war. Some analysts are of the view that perhaps there would be no winner at all. However, it is quite imperative to understand what these two super mega powers aim to achieve and where does the answer to the question, with regards to who would emerge as a winner lie in. Perhaps, the true answer to this question lies in the energy sector as energy is an industry which can be deemed to be regarded as an industry which aids in the functioning of all other industries and all other sectors. China, which can be deemed to be regarded as a superpower, is tilted towards this direction and is hoping to develop itself and mark its niche in the energy sector in an attempt to triumph over the United States of America and thereby emerging as a winner in the trade war. However, it is quite imperative to take cognizance of the fact that there can be no winner in a trade war and a trade war, at all times, ends up with a massive fall in trades conducted by the respective countries at war, which in turn, leads to a downfall of the global economy.

At present, China can be regarded as the largest producer of greenhouse gases. It is time that China needs to increase its imports of fossil fuels in order to become an environmentally viable country, which, in turn, could help it to attain its goal of becoming a cleaner country and also lead to the development of cleaner sources of energy. There have been innumerable concerns with regards to the protection of the Earth and countries are constantly striving to shift their resources into the renewable energy sector, in order to have an upper-edge over other dominating super powers. It is also pertinent to note that China has been facing tremendous issues in terms of the level of air pollution rising in its territorial boundaries, which has in turn, created an enormous global pressure upon China. Beijing has taken a number of steps in order to become a cleaner nation. It is pertinent to understand how the withdrawal of the United States of America, from the Paris Agreement in 2017, with a vision to develop and become an environmentally viable nation has made way for China to mark its solid position when dealing with the matters concerning climate negotiations. [1] 

Analysis

China has been tremendously working towards establishing alternative and cleaner sources of energy, which is quite evident from the policy paper which it issued on renewable energy and how it wishes to increase the usage and consumption of renewable sources of energy. China’s National Energy Administration published its policy paper on 15^th May, 2020 and the paper highlighted on how China aims to become a cleaner and a greener nation in coming five years. [2] The New Policy called as the Renewable Portfolio Standard (RPS) targets to establish a standard wherein the different sources of renewable energy would be utilized for varied uses in a number of provinces. The aim of this move is to ensure that companies which are already in this sector benefit tremendously as relying on renewable sources of energy would lead to an increase in their profit levels over a period of time. However, the companies which are in the business of providing non-renewable sources of energy or companies whose operations majorly run on the basis of non-renewable sources of energy would tend to run into losses, in line of the Renewable Portfolio Standard which is proposed by China.

Regardless, China is still the largest user of coal. China aims to consume less than 58% of the coal that it imports as a source of energy by the end of the year 2020. However, this move can be a little difficult to achieve, as since the last four years, the overall coal consumption in China has risen tremendously as businesses in the power, steel and petrochemical sectors have a huge demand for coal.[3] With regards to this increasing demand from the power, steel and petrochemical industries, it is imperative to understand that the Chinese steel industry, in the first quarter of 2019, demanded huge quantities of Australian coking coal[4] and it can be said that Australian coking coal has been proven to be a very important source of energy generation for the companies involved in the steel business in China. The increase in the demand for Australian coking coal has proven to be beneficial for Australia as well and these imports have improved the trade negotiations between Australia and China. As a result of these amicable relations which Australia and China share, China’s aim of becoming a cleaner and a greener country is not far-fetched. The symbiotic relations with countries are sure to help China, in its goals of diversification. [5]

The reason why China imports coal, in spite of it having enough domestic reserves is because of the price difference which exists. The amount of coal which China imports from the USA has risen in the year 2020, despite there being tariffs imposed by the USA on thermal and coking coal. However, the coal which China imports from the USA does not have an edge [6] when it comes to the quality and the total time taken for the delivery of the material. The prices and the other factors, when taken into consideration, explain that China is profiting if it imports from countries like Australia and Indonesia. President Trump, as a matter of fact has imposed a number of other tariffs on Chinese goods and this has eventually led to China resorting to Australia and Indonesia for its supply of coal.

In order for China to become a cleaner and a greener nation, it needs to resort to alternative sources of energy in order to limit the consumption of coal in the households and at the same time, it is also working towards ensuring that industries which rely upon coal as a means of energy generation, shift to alternate sources, however, it can be deemed to be regarded as a challenging task, since coal is being consumed as a source of energy from about 65% of the overall households in the country.[7] China’s decision to import coal from Australia and Indonesia has been quite a wise move. It is imperative for China to stay away from the US coal imports and rely upon the other countries as this would lower China’s dependence on coal as a source of energy, however, it’s mission to become a cleaner and greener country would become slightly complicated.

China’s aim to develop a new policy concerning the increased use of renewable sources of energy and an aim to curtail, the use of fossil fuels as a means of energy would surely enable China to reach its goal of becoming a cleaner and a greener nation. China has already taken innumerable steps in this direction, however shifting resources of energy supply from non-renewable sources of energy to renewable sources of energy could take quite a while, as China needs to shift its resources and shifting of resources is never an easy or a feasible task, and in fact, China has an increasing demand for Natural Gas. According to Yao Li, the CEO of a Chinese consulting firm, SIA Energy, contended at an annual Canada Gas and Energy Conference that China’s demand for liquefied natural gas is growing and is, “almost infinite.” [8] China is importing natural gas at a huge scale and it is fulfilling 43% of its demand by importing from various countries and China can clearly be deemed to be regarded as one of the largest importers of Natural Gas. As a matter of fact, LNG is one such commodity upon which China has imposed tariffs, especially on the LNG coming from the United States. The beginning of the trade war between China and the United States has marked the end of the LNG import. The quantity of LNG which China used to previously import from the USA has declined significantly with the commencement of the trade war. The United States of America, previously supplied huge quantities of Liquefied Natural Gas to China, however, with the imposition of tariffs, in line with the commencement of the trade war has left the US market to look for new buyers of natural gas, however, China, on the other hand is still importing Liquefied Natural Gas significantly by relying upon countries such as Qatar and Australia and it is even supposedly importing LNG from Russia. [9]

It is a conceived notion that LNG could act as a means to end the trade war. President Trump’s strategy shows a considerable amount of its ability when it comes to LNG being exported as this would help the USA to lower its trade deficits.[10] China is regulating energy and as a matter of fact has announced new tariffs as well; China, if resorts to import from the US  energy market, then it could be deemed to be regarded as a win-win situation for either parties, however, the trade war is making China reconsider its options and therefore, it is resorting to energy exports from other countries. However, it would be ideal for both nations, if they end the trade war and start their trading activities, as this can be deemed to be regarded as an ideal scenario for both the countries. China is already under the process of becoming a cleaner and a greener nation, however, the fact that it may seek help from the USA, when it comes to importing LNG, seems too far-fetched. In such a scenario, a third country could act as a middle source, in order to ensure that the trade negotiations between both the countries take place and function smoothly and systematically. Japan, is one such country which could act a middle ground for China and the USA, as even Japan is aiming to become a cleaner and a greener nation and is hoping to become a huge hub for LNG. [11] Japan, could act as a mediator and could purchase LNG from the United States and export the excess supplies of LNG to China, making it a win-win situation for all three nations. Japan, could act as a mediator and could purchase LNG from the United States and export the excess supplies of LNG to China, making it a win-win situation for all three nations. In this scenario, China, if opts to import LNG from the USA, will enable the US to get out of its trade deficit and this can also perhaps end the ongoing trade war between these two nations. It is, however, imperative to also understand the position that China has taken while dealing with Oil. So far, China has not imposed any tariff upon the oil which is imported from America, despite that the imports of American oil have rapidly declined. This could be deemed to be regarded as a move by China to get back at the US, for the US has imposed various sanctions on the crude exports from Iran and Venezuela [12] dwindling tensions in the Middle East and both Iran and Venezuela crude oil has been an important source for Chinese imports. China, however, is maintaining itself and is still importing Iranian crude oil, but at the same time, it is also heavily investing its capital in African Oil Reserves [13] and is planning to develop a strategic petroleum reserve for itself and this is precisely why it is still going easy on US Crude Oil and not imposing its tariff wrath upon this commodity.

China has significantly made a number of improvements when it comes to dealing with its oil refining capacity. According to an energy expert, Philip Verger, China has an aim to increase the production in the oil manufacturing sector and would improve its refining capacity while witnessing a fall in the demand for oil in its own country. [14] This move by China would tend to lower the prices of crude oil across the globe and in fact, this has already been experienced in the year 2019. If China goes ahead with this move, then it would drastically impact the United States of America, who is now the biggest oil producer and it is expanding continuously. It is imperative to understand that China would very well take this step, in order to have an upper hand over the US in the ongoing trade war.

Conclusion

The Liquefied Natural Gas trade between the US and China can help in easing the tensions that persist between them. China is working towards making itself a cleaner and a greener country by curtailing the use of coal as a source of energy and instead it is resorting to LNG as a means of a cleaner source of energy. If China imports LNG from the United States of America, then it would certainly pull America out of the trade deficit which it is stuck in. However, it seems quite a far-fetched thought, as China is already relying upon countries like Australia, Qatar and Russia to fulfil its LNG requirements, plus, it would certainly hesitate to import LNG from the US as then it would have an upper edge over the US, in terms of the Trade War as well as in terms of becoming a cleaner and a greener super power, thereby surpassing the United States of America. If at all China imposes tariffs upon the US Crude Oil, then it would surely intensify the relations between these two magnanimous super powers.

[1] “As America retreats on Climate, China and Russia confirm commitments.” By Dave Keating- https://www.euractiv.com/section/energy/news/as-america-retreats-on-climate-china-and-russia-confirm-commitments/.

[2] “Policy Initiatives to trigger massive growth of Renewable Energy in China”- https://www.forbes.com/sites/gauravsharma/2019/05/21/policy-initiatives-to-trigger-massive-growth-of-renewable-energy-in-china/#52024ca6c63a.

[3] “China expects to hit 2020 coal cap targets; demand overshadows”- https://www.reuters.com/article/us-china-energy-coal/china-expects-to-hit-2020-coal-cap-targets-demand-overshadows-study-idUSKCN1SZ17M.

[4] “China buys coking coal; India looms larger”- https://www.mining-journal.com/bulks/news/1363761/china-buoys-coking-coal-india-looms-larger.

[5] “Energy in China-US Trade Negotiations- https://www.orfonline.org/expert-speak/energy-china-us-trade-negotiations-52163/.”

[6] “China’s importers to apply for tariff wavers on U.S. goods- https://www.reuters.com/article/us-usa-trade-china-tariffs/chinese-importers-to-apply-for-tariff-waivers-on-us-goods-idUSKCN1T60LP.”

[7] “How is China’s energy foot print changing?- https://chinapower.csis.org/energy-footprint/.”

[8] “Chinese Demand for Gas- LNG ‘almost infinite’- https://www.jwnenergy.com/article/2019/5/chinese-demand-gas-lng-almost-infinite/.”

[9] “American LNG Exports threatened as China turns to Russian sources”- https://asia.nikkei.com/Economy/Trade-war/American-LNG-exports-threatened-as-China-turns-to-Russian-sources.”

[10] “China may regulate energy imports from US amid trade row- https://sputniknews.com/analysis/201905161075044370-china-regulate-usa-energy/.”

[11] “Trade LNG more, end US-China Trade War- https://www.eastasiaforum.org/2019/05/23/trade-lng-more-end-the-us-china-trade-war/.”

[12] “China is going easy on American Oil for now- https://edition.cnn.com/2019/05/14/investing/oil-china-trade-war-lng/index.html.”

[13] “How is China’s Energy Foot Print Changing- https://chinapower.csis.org/energy-footprint/”.

[14] “The Next Big threat for Oil comes from China- https://oilprice.com/Energy/Oil-Prices/The-Next-Big-Threat-For-Oil-Comes-From-China.html.”

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The provisions of Section 34(3) of the Arbitration and Conciliation Act, 1996 can be understood as follows, “An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under the provisions of Section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”[1]

The abovementioned provision elucidated under Section 34(3) clearly states that if a party is aggrieved by the Award passed by an Arbitral Tribunal then that party has a time period of ninety days[2] or three months from the date on which the Award was passed by the Tribunal to challenge the said award before an appropriate judicial body. The appropriate judicial body has only been conferred with the powers to extend the said period of 90 days to another 30 days, in which if the aggrieved party fails to file an application, then the Award shall be deemed to be binding on both the parties. The Court can extend the time period to another 30 days if the aggrieved party shows sufficient cause which led to the delay in filing the said application. The extension by the appropriate court is granted after looking into the matter extensively and this is done by the courts in order to ensure that the aggrieved party is not causing a delay in filing the application on purpose, thereby hindering the entire process. The Supreme Court, in the case of Union of India v. Popular Construction[3] and Simplex Infrastructure Limited v. Union of India[4] has elucidated upon this in detail and reiterated that the time period granted under the requisite provisions of Section 34(3) is proper and accurate and it is the duty of the aggrieved party to strictly adhere to the guidelines provided under the provisions of the said section. The Supreme Court in the case of Union of India v. Popular Construction[5] has taken cognizance and deliberated upon the provisions elucidated under the Arbitration and Conciliation Bill, 1995, which laid down that the main point of focus of the Bill is to ensure that the disputes arising between parties are solved in a time bound manner, with minimal interference of the Courts during the pendency of an arbitral proceeding and therefore, it is imperative for the parties to adhere to the provisions pertaining to the time frame within which the disputes need to be disposed of according  to the requisite provisions of Section 34(3).[6]  This simply means that the Courts cannot allow the parties to extend the time period beyond 120 days (90 days plus 30 days combined) under any circumstances.

It is imperative to understand, that the courts also check whether the party is filing for a fresh application and whether the fresh filing can be deemed to be regarded as a means of ‘proper filing’ or whether the party is filing “non-est”. The Courts examine whether such filing made by the aggrieved party is done within the stipulated time frame of 120 days or not. If the party fails to file an application under the requisite time frame as guaranteed under the provisions of Section 34(3), then the Court cannot entertain such an application. Therefore, if the party files an application within the stipulated time frame of 120 days, however, the application suffers from discrepancies, then such an application can be deemed to be regarded as a, “non-est” filing and the Court cannot grant the aggrieved party additional extension in order to rectify the said discrepancies and if the party rectifies the discrepancies in the application and files again, the court cannot accept the rectified application as valid.

“Non-Est” Filing

The aggrieved parties are granted a period of 90 days in order to file an application if they are not satisfied with the Award passed by Arbitral Tribunal. The Court grants an additional extension period of 30 days to the parties within which they are required to file the said application showing their dissatisfaction with regards to the Award passed by the Arbitral Tribunal. However, at times, parties simply file fake or dummy applications within the time span which is provided to them in order to extend the time limit and thereby causing hindrance to the entire process. The Courts, however, have begun to examine each and every application filed by the aggrieved parties in order to ensure that the parties are filing appropriate applications, which are authorized by an authority. The Courts have begun scrutinizing each and every application which they feel is suspicious and the Delhi High Court has dealt with a number of such matters in the following cases: 

1)      In the case of Jay Polychem (India) Ltd. & Ors. v. S.E. Investment Ltd[7], the party aggrieved by the Award passed by the Tribunal, filed an application for appeal exactly before the expiry of the prescribed time limit of 90 days. However, the application filed by the aggrieved party was not signed and the party had even failed to attach the requisite attested documents as per the requirement of the Court. Therefore, the Registry returned the application filed by the aggrieved party on grounds of discrepancies mentioned above. The party, rectified the errors and again filed an application just before the expiry of the extra 30 days which were granted by the Registry to the aggrieved party. After hearing both sides and deliberating upon the said issue, the Court was of the opinion that, “the delay cannot be condoned as the defects that existed in the Objection, accompanies with a statement of truth cannot be considered as a valid objection under the necessary provisions of Section 34 of the 1996 Act and hence ought to be construed as ‘non-est’ in nature.”

2)      The next case in which the Delhi High Court presided over was the case of SKS Power Generation (Chhattisgarh) Ltd. v. ISC Projects Private Limited[8], in this case, the aggrieved party not satisfied with the arbitral award passed by the Tribunal filed an application during the 90 days period, however, failed to submit the necessary documents such as the affidavit and the Vakalatnama. Apart from that, the party submitted a document containing only 29 pages which did not have any markings, or pagination and the party did not attach a copy of the Arbitral Award which the party was aggrieved with and wished to challenge before the Court. With regards to these defects pertaining within the application, the Registry returned the application to the aggrieved party asking the party to make the necessary amends and resubmit the same within a period of 30 days. However, the aggrieved party filed the amended application, two months after the date on which the application was returned by the Registry, which was way beyond the time granted to the party. The Court heard the contentions raised by both the parties to the dispute and after due deliberations passed a Judgement relying upon the cases of, Delhi Development Authority v. Durga Construction Co.[9], Sravanthi Infratech P. Ltd. v. Greens Power Equipment (China) Co. Ltd.[10] and reiterated that the said application filed by the aggrieved party can be deemed to be regarded as a ‘non-est’ filing because the application filed by the party aggrieved with the Award passed by the Arbitral Tribunal was insufficient and lacked the basic documents which are extremely crucial for filing an application for challenging an Arbitral Award.

3)      In another case, titled, Director-Cum-Secretary, Department of Social Welfare v. Sarvesh Security Pvt.Ltd.[11], the objection was filed by the aggrieved party within the stipulated period as provided under the provisions of Section 34(3), i.e. within 90 days, however, the application contained innumerable issues and the documentation was incomplete. The application did not contain the signatures of the necessary parties, nor did the application have a proper affidavit attached, or Vakalatnama which authorizes the lawyer to sign the petition.[12]  As a matter of fact, the aggrieved party took approximately 118 days to re-file the said application challenging the Arbitral Award. The Court, in this case, rejected the application filed by the aggrieved party, despite it being re-filed within the stipulated time-frame and reiterated that the filing made by the party to the dispute cannot be deemed to be regarded as a proper means of filing and does not meet the basic criterions that enable the Court to regard such an application as proper. Vide this judgement, the Delhi High Court laid down certain guidelines which the parties need to strictly adhere to whilst filing for an application challenging an Arbitral Award passed by an Arbitral Tribunal. The Court elucidated that it is necessary for the parties to submit: a) the signatures of all the parties on all the necessary documents; b) Affidavits which need to be annexed along with the petitions; and c) Vakalatnama duly executed and signed.

4)      Next, in the case of Oil and Natural Gas Corporation Ltd. V. Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Limited (Meil)[13], the Delhi High Court in this case reiterated further upon what can be deemed to be regarded as the basic requirements when it comes to properly filing an application challenging the validity of an Arbitral Award. In this case, the application challenging the arbitral award was filed within the stipulated time-frame of 90 days, however the application had a lot of discrepancies. The application did not contain proper signatures, the affidavits annexed thereto were not properly signed and attested by the parties and the lawyer and the party had failed to execute the Vakalatnama as well. The party had even failed to pay the requisite court fees and at the same time the caveat report wasn’t served to the respondent. The Registry returned the application, granting a further 30-day extension to the party challenging the said award, however, the parties paid no heed to the amendments and the aforementioned defects were not rectified by the aggrieved party. Therefore, after listening to both the sides, the High Court opined that the aforementioned filing made by the aggrieved party can be deemed to be regarded as a, ‘non-est’ filing and provided that the said filing cannot be barred by the limitation provided under the requisite provisions of Section 34(3) and such a filing can surely be no ground for causing a delay in the filing process. It further reiterated that, “the parties need to fulfil the following requirements which are essential to be fulfilled/complied with, in order for a filing to be constituted as a ‘proper’ filing and be treated as a petition in the eyes of the law:

i)                   Each page of the Petition along with the last page ought to be signed by the concerned party as well as the Advocate;

ii)                 Vakalatnama ought to be signed by the party and the Advocate along with the signatures of the party be identified by the Advocate;

iii)               Statement of Truth/Affidavit should be signed by the Party and attested by the oath commissioner; [14]

Therefore, this simply means that for an application or a filing to be not regarded as a, ‘non-est’ filing, the application filed by the aggrieved party needs to contain the aforementioned documentations in place. Furthermore, it is imperative to understand that an application cannot be accepted by the Court on the grounds that it was filed within the stipulated time-frame of 90-days, if the Court has sufficient reason to believe that the said application is a ‘non-est’ application or a ‘non-est’ filing.

There have been other instances too, wherein the parties have filed an application challenging an Arbitral Award after the lapsing of the 120-days period. However, the Courts have taken enough steps in order to ensure whether the said application falls under the ambit of a ‘proper filing’ or not. It is imperative to throw light upon the case of Sravanthi Infratech P. Ltd. v. Greens Power Equipment (China) Co.Ltd.[15], wherein the application was filed by the aggrieved party within the stipulated period of 90-days as provided under the provisions of the Act, however, the concerned party took no measures in order to rectify the mistakes which prevailed in the application within the outer limit of 120 days (90 days plus 30 days). The Delhi High Court, in this case reiterated that the discrepancies found by the Registry, i.e., there being no documents, no Vakalatnama, no application for condonation of delay, no authority and no affidavit annexed, at the time when the application was filed cannot be deemed to be regarded as a ‘proper filing’.[16] The Court further emphasized upon the following aspects: “a) that the initial objection that had been filed consisted only of 66 pages and what was eventually filed after a substantial delay, was an objection containing 859 pages. On a comparison of the two, the Court noted that this confirmed the suspicion that, what had been filed earlier was neither comprehensive nor properly executed. b) an objection that is filed without any affidavit, but is re-filed with ante-dated affidavit can also be deemed to be regarded as an attempt to falsify the record and thus cannot be accepted.[17]

Therefore, with regards to the discrepancies which were made by the parties while filing the requisite documents, the Division bench provided that according to the necessary provisions of Section 34(3), the parties need to strictly adhere to the time period which is enumerated therein and the parties shall under no circumstances file the said application before the stipulated time-frame guaranteed to them under the provisions of Section 34(3). The Court held that, “a strict view needs to be taken with regards to the delay in filing Objections beyond 90 days and the Court ought not to be expected to mechanically condone the delay in filing an objection even if there is a delay of only a few days.”[18]

Analysis and Conclusion

From judgements enumerated above, it can be said that all the judgements have one thing in common and that is the Courts have carefully scrutinized each and every document to identify whether the filing made by the aggrieved parties is a “non-est” filing or not. It can be said that the Court, in all the above mentioned cases has passed a judgement stating that the application or the filing made by the parties originally can just be deemed to be regarded as an incomplete application and cannot be deemed to be regarded as an application falling under the scope of a proper filing. The Courts all the above mentioned cases have regarded such filings as non-est filings which lacked certain requisite documentations which were essential in order to successfully challenge an Arbitral Award. The Courts have carefully scrutinized applications filed by the parties, ensuring that the objective or the aim of the Act, which is to solve the disputes in a time-bound manner is not diminished.

It is imperative to understand that Section 34(3) of the Arbitration and Conciliation Act, 1996, specifically enumerates a stipulated time-frame of 90 days within which the parties who are aggrieved with an Award passed by the Arbitral Tribunal can file an application challenging the said Award. It is imperative for the parties to adhere to the necessary guidelines while filing an application in order for the application to fall under the scope of a proper filing, however, if the parties fail to adhere to the requisite provisions, then under such case, the filing can be deemed to be regarded as a non-est filing.

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India is on the verge of becoming one of the fastest growing economies of the world. Despite, India being in its nascent stages in a number of sectors, yet, it has never looked back and has continued to excel rapidly. For a fast growing economy like India, where even multinational companies are investing rigorously, it is imperative for the law-makers or the legislation to provide the investors, both domestic and international investors; a proper piece of legislation securing and governing their rights and duties. It is because of this, an Insolvency and Bankruptcy Code was formulated and enacted by the Parliament in the year, 2016, ensuring a favourable jurisprudential environment for a number of investors, as well as securing the rights of a number of potential investors. The Insolvency and Bankruptcy Code was enacted in 2016 after a number of recommendations were put forward with regards to the changes that could be made to the previous insolvency regime, which was fragmented, fraught with delays and resulted in poor recoveries for the creditors.[1] The new Code brought about a plethora of changes as compared to the previous regime dealing with the various intricate aspects revolving around Insolvency and Bankruptcy. With regards to the corporate companies, the Code brought about a change and a ‘creditor-in-control’ method was introduced which primarily focused on securing the rights of the Financial Creditors as the previous regime dealt with a disparate process when it came to debt restructuring and dealing with matters pertaining to asset seizures which were imperative to get the insolvency process moving and to settle the debts of the creditors. There were a number of laws dealing with this process such as the Sick Industrial Companies Act, 1985, the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the Recovery of Debt Due to Banks and Financial Institutions Act, 1993 and lastly, the Companies Act, 2013. The provisions of all these acts along with the previous regime caused a severe hindrance in the entire debt restructuring process and this lead to the collapse of multiple organizations and along with them the collapse of their investors and their creditors as the non-performing assets of the corporation went on accumulating, however there was no proper regime in place to settle the debts by way of selling these assets and this resulted in creditors simply waiting for years to recover their money. The development of the Code brought about serious changes to the erstwhile bankruptcy regime in India as a time-bound resolution process was incorporated under the provisions of this Code, which in turn, lead to a straight reduction in the time frame which the parties usually spent when the matter went before the court. A number of well-known institutions like the IBBI or the Insolvency and Bankruptcy Board of India, Insolvency professionals and information utilities were established and setup under the ambit of this Code. One of the other important aims behind the enactment of this Code was to ensure that all the broken pieces of laws pertaining to insolvency, fall under the garb of one single Code which deals with all these broken pieces together and in their entirety. The purpose of combining all these laws pertaining to insolvency is to resolve the uncertainty and the ambiguity which tends to arise from the application of a number of laws administered and enacted by various authorities, thereby leading to procedural delays and also leading to a decrease in the value of the assets. The Code repealed and introduced a number of modifications to the various provisions of laws that were in direct conflict with it.[2] Yet, the scheme of a number of laws which were passed by the Central Legislature as well as the State Legislatures can still be deemed to be regarded as inconsistent with the other pieces of legislations. With regards to this, it is quite imperative to delve into the manner in which such inconsistencies can be dealt with, however, this article focuses on how the Insolvency and Bankruptcy Code, 2016 came into existence and how a nexus can be drawn between using the various methods of Alternative Dispute Resolution when it comes to dealing with Insolvency Proceedings.

Analysis

The Insolvency and Bankruptcy Code, 2016 provides the creditors of an organization, the ability or creates a path for them to commence the insolvency resolution process when a debtor or a company is unable to pay its creditors the amounts owed to them. The Code provides a clear demarcation between two prominent classes of creditors namely- Operational Creditors and Financial Creditors. A financial creditor is defined under the scope of Section 5(7) of the Code. Section 5(7) of the IBC, 2016 defines a “financial creditor”, which means, “any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to.[3] Basically, a financial creditor can be deemed to be regarded as that individual or group of individuals with whom the insolvent company or the debtor, solely has a financial contract or a financial relation and where the said creditor has provided an amount to the said debtor or the said company against the consideration of time value of money. At this stage, it is imperative to throw light upon Section 5(8) of the Insolvency and Bankruptcy Code, 2016 which elucidates the meaning of a ‘Financial Debt.’ The term, ‘financial debt’ is defined under Section 5(8) of the Insolvency and Bankruptcy Code, 2016 as, “a debt along with interest, if any, which is disbursed against the consideration for the time value of money.”[4]  Section 5(8) of the IBC, 2016 also provides a list of transactions which fall under the scope and ambit of this definition. According to the provisions contained under the scope of Section 5(8)(f) of the Code, even homebuyers could be deemed to be regarded as financial creditors under the provisions of the Code.[5]  This was laid down by the Apex Court in the case of Pioneer Limited v. Union of India (famously known as the “Pioneer Judgement”)[6], wherein the constitutional validity of the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018[7] was upheld by the Apex Court. In consonance to this amendment, homebuyers or the individuals who are allotted Real Estate, can be defined under the ambit of Section 2(d) of the Real Estate (Regulation and Development) Act, 2016 (RERA), were deemed to be regarded as, “financial creditors” and fell under the ambit of the definition of “financial creditors” as provided under the provisions of the Insolvency and Bankruptcy Code, 2016. The judgement was delivered by a three-judge bench which was headed by Hon’ble Mr. Justice Rohinton Nariman, who upheld the constitutional validity of the Amendment Act and disposed of the petitions which were filed by real estate developers who were of the view that the Amendment Act was ultra vires to the provisions of the Constitution. The Supreme Court, in this case, reiterated that RERA has to be read and understood in accordance with the provisions laid down under the Insolvency and Bankruptcy Code and if, under any circumstances a conflict arises then in such a case, the IBC, 2016 will always be upheld over the provisions elucidated under RERA. For instance, if a creditor is deemed to be regarded as a financial creditor, in such a case, the financial creditor should have the requisite powers to commence the insolvency resolution process. The said financial creditor also has the power conferred upon him/her to file claims during the course of the insolvency process and at the same time he/she has the right to be member who has been conferred with the power to vote and be a part of the committee of creditors, each of who accept or reject an insolvency resolution plan.[8]

Before understanding how the ADR methods can be used while dealing with insolvency procedures, it is imperative to understand what Operational Creditors are as defined under the provisions of the Code. Section 5(20) of the Insolvency and Bankruptcy Code, 2016 defines an Operational Creditor. An Operational Creditor is someone whose claims arise as and when a transaction in the business takes place. Basically, an operational creditor is someone who has delivered or provided goods or services to the debtor, which also could include his own employees or the employees of a State or Central Government. An operational creditor has the right to make an application and initiate the process of insolvency of a corporate debtor. Amongst other powers which are conferred upon Operational Debtors in consonance to the provisions of IBC, 2016, the Operational Creditor has the power to file a claim which deals with the insolvency resolution process and at the same time, he/she has the power to participate in the insolvency resolution process, however, he/she is not conferred with voting rights as are granted to the Financial Creditors. All in all, the Insolvency and Bankruptcy Code, 2016 has provided a plethora of rights to these creditors by undertaking their issues and dealing with them in a time bound manner.

Introduction to Alternative Dispute Resolution Methods.

Arbitration, Conciliation, Mediation and Negotiation are the four most important methods of resolving disputes outside the four confines of a courtroom. Alternate Dispute Resolution is a method wherein parties are provided with an opportunity to amicably and peacefully settle the various disputes arising between them, without entering the courtroom. It also includes negotiation, which can simply be described as a chat between the parties to the dispute and they come to a conclusion based on the points discussed during their chat. Then comes Mediation which can simply be described as a means of conducting a dialogue with a third party who, controls the mediation process and understands the perspectives put forth by either of the parties and then comes arbitration which can be simply described a private litigation method and the arbitral awards passed by the arbitrator in an arbitration proceedings can be deemed to be regarded as binding on both the parties to the dispute, unlike the decisions set aside by the Mediators in a mediation proceeding. Mediation and Conciliation can be deemed to be regarded as two important methods of conflict resolution wherein a third party regulates the proceedings. The conciliator, who presides over a Conciliation proceeding has the right to propose a solution to bring an end to the conflict, however, the mediator who presides over a mediation proceeding can help the parties to the dispute throughout the pendency of the mediation proceedings and provide them with a helping hand when it comes to finding a solution to their dispute. It is imperative to understand in depth, the various methods of alternative dispute resolution.

1.      Mediation: The Civil Procedure Amendment Act, 1999 or the “CPC Amendment Act, 1999” introduced the scope of Mediation as a method of alternative dispute resolution and the provisions dealing with it were laid down under Section 89 of the Civil Procedure Code,1908. This section which was inserted by way of the 1999 Amendment Act and was aimed specifically at introducing the provisions dealing with, ‘judicial mediation’, which can be deemed to be regarded in contravention to what a ‘voluntary mediation’ is. The Court was conferred with the powers to find out cases wherein a peaceful settlement could be deemed to be regarded as the ultimate way to settle the dispute and then call for observations thereon of the parties to such a dispute.

Further, the Commercial Courts Amendment Act, 2018 also garnered a lot of importance to mediation. The Amendment Act, 2018, introduced an entire new chapter under the provisions of the Act. Chapter IIIA was introduced by way of this Amendment Act. It states that when a matter which does not require immediate or urgent interim relief, in such cases, the matter shall be referred to Mediation.

2.      Conciliation: Conciliation, as a method of alternative dispute resolution was introduced under the scope of Part III of the Arbitration and Conciliation Act, 1996.[9] Conciliation can be deemed to be regarded as one of the most effective means of settling disputes outside the confines of the court. The process of Conciliation can be deemed to be regarded as a process which is non-binding upon the parties to it and in this process, a Conciliator is appointed, who provides his necessary assistance to both the parties to the proceedings and helps them reach a settlement. Section 61 of the Arbitration and Conciliation Act, 1996 states, “…this Part shall apply to conciliation of disputes arising out of a legal relationship, whether contractual or not and to all proceedings relating thereto.”[10]

3.      Arbitration: The law courts in India have innumerable cases pending before them and that is when arose the need to implement an alternative method of resolving disputes which could lower the burden upon the judiciary. In order to lower the burden upon the judiciary, the Legislature enacted the Arbitration and Conciliation Act, 1996 and provided that Arbitration can be used as a means to resolving disputes between parties located within the same country as well as between parties located within different countries (international arbitration). The Act provides provisions dealing with the making of the arbitral awards and how they can be challenged by the parties. This piece of legislature confers limited grounds under which an arbitral award can be challenged. It is imperative to understand the definition of Arbitration as provided under Section 2(1)(a) of the Arbitration and Conciliation Act, 1996. Section 2(1)(a) provides, “arbitration means any arbitration whether or not administered by permanent arbitral institution.”[11] It can be said that an arbitral award passed by an arbitrator is binding on both the parties to the dispute unlike the award passed by a mediator or a conciliator. There are various types of Arbitration proceedings in India:

a)      Ad-Hoc Arbitration: There is no prescribed institution wherein the arbitration can be administered.

b)      Institutional Arbitration: An institutional arbitration is when the arbitration proceedings are carried out by an institution or an organization.

c)      Statutory Arbitration: It is that type of arbitration which is conferred upon or suggested by the law courts to the parties to the dispute.

d)      Foreign Arbitration: The type of arbitration proceedings wherein the proceedings are conducted outside the territorial boundaries of India.

Should Adjudication be upheld over Alternative Methods of Dispute Resolution?

Judicial adjudication or judicial proceedings are the common proceedings which are undertaken within the four confines of a court room and usually parties to a dispute believe that it is better to appear before the law courts and get their matter resolved. However, it is imperative to understand that the various methods of ADR have also been proven to be highly successful and in fact, in an arbitration or mediation or conciliation proceeding, there is no single winner, both the parties benefit out of it and get what they both want as the arbitrators or the conciliators or the mediators, sit down with both the parties, either together or conduct a separate meeting, the contents of which are not disclosed to either of the parties and they tend to understand the expectations and the desires of both the parties. This ensures the peaceful settlement of a dispute outside the four confines of a courtroom. However, if a matter is referred to judicial adjudication, then the advocates of both the parties simply argue before the Court and try to prove that their client is on the correct side of the law, while the other party is entirely at fault and these proceedings usually go on for decades with no solid result.

It is imperative to understand and draw a nexus between how Insolvency proceedings can be benefitted if they are referred to alternative methods of dispute resolution. As stated above, the Insolvency and Bankruptcy Code, 2016 was enacted by the Parliament to ensure that the insolvency resolution process is completed in a time bound manner and as per the provisions of the IBC, 2016, the code prescribes that when an application for the initiation of an insolvency proceeding is filed, a period of 14 days will be granted to the National Company Law Tribunal (NCLT) to take cognizance of the matter and make a decision with regards to whether the same shall be accepted or rejected. The NCLT cannot straightaway disregard or reject the application filed by the parties. The NCLT needs to scrutinize the application expeditiously and provide a time frame of 7 days to the applicant to correct the defects, if any, which are persistent in the application filed by the applicant before the NCLT. However, the NCLT also has a lot of cases before it and an insolvency proceeding is quite an intricate matter and a lot of debtors or business owners believe that an insolvency proceeding can rigorously tarnish the image of the company, as well as the image and the reputation of the business owners. Therefore, it is wise for parties to choose ADR over adjudication, when an insolvency resolution process is carried out as the privacy of the matter can be controlled and this certainly cannot happen if the matter goes up for adjudication before the Court of Law.

It is quite crucial to understand at which stage the parties to an insolvency resolution process shall refer the matter to ADR and use the methods of ADR to initiate an insolvency resolution process. The parties could refer the matter while working out the insolvency regime. This means that the parties could manage or reduce the debts and the debtor or debtors could sit down with their creditors (financial creditors) and discuss as to how would they repay the debt. This can be deemed to be regarded as a technique which could be commenced before insolvency proceedings are initiated. In countries like Belgium, Greece and Spain, the court usually maintains checks over these matters and ensures the validity of the agreement which the parties have reached to.

The parties could perhaps plan out a restructuring regime and these proceedings can be carried out with the help of ADR. Such a proceeding can be initiated when the debtor is certain that the company cannot survive any longer and that it would soon become insolvent. In a number of cases, it can also be commenced after a company or a debtor has gone insolvent, but the provisions with regards to this has not been provided anywhere in Indian laws and further it tends to incorporate the various methods of ADR, usually Conciliation is adhered to. In fact, only a Financial Creditor under the scope of Section 7 of the Insolvency and Bankruptcy Code, 2016 can initiate an insolvency resolution process, however, if a restructuring regime is made, then it can take under its scope all creditors and not just financial creditors. All in all, an insolvency resolution process can be commenced and solved with ease and can be finished in a time bound manner, perhaps it may be completed in much faster way as compared to referring it to proper adjudication.

Why is it necessary?

It is imperative to understand that India’s insolvency regime at present focuses on providing an impetus to debt recovery over the debtor’s rehabilitation, which simply means debtor’s ability to further carry out business activities. The Preamble to the Insolvency and Bankruptcy Code, 2016, largely focuses on the reorganization and the rehabilitation of corporate persons which should be done in a time bound manner and should follow the measures of debt recovery. However, if disputes are referred to ADR, then it would also focus upon the intricate details of each debtor and each creditor of the corporation and also would reduce the burden which has been imposed upon the National Company Law Tribunal. In fact, Hon’ble Mr. Justice Sikri propounded that it is crucial that mediation be incorporated as a means of dealing with the Corporate Insolvency Resolution Process (CIRP).[12]  In his article, Justice Sikri also reiterated that the desired time, as per provided under the IBC, 2016, to commence and resolve a CIRP, including the time taken for extensions is 270 days. However, seldom does the matter get over within a time-frame of 270 days and the cases usually go on for a period exceeding 365 days or perhaps even more. He elucidated in his article that the NCLT is overburdened and the time that is taken to liquidate a company or for a company to adhere and adapt a resolution plan, increases if NCLT is enable to deal with the backlog and the flouting of timelines through a problem-solution approach.[13] In certain situations, the commencement of the insolvency proceedings can also lead to a decrease in the total asset value of the debtor’s assets as it shows that the debtor is distressed and is making a distressed sale of his assets in order to accumulate funds. On the basis of all these aspects, the decision whether to put a company through the entire process of insolvency is taken only when there is a reasonable distress which requires immediate and prompt resolution and not when there are a number of intricate disputes which deal with the mere existence of that distress. On the other hand, when there is a clear scope to dispute a particular fact before the commencement of an insolvency process, the delay in the commencement can also lead to a reduction in the value of the assets and this can also lower the possibility of resolving the dispute immediately and amicably. However, if the matter is referred to NCLT, then with the humungous backlog, the total value of the non-performing assets (NPA’s) of the debtor would fall tremendously and also it could lead to severely tarnishing the image of the company. This is why, the Courts need to encourage the parties to an insolvency proceeding to refer the matters to mediation or arbitration. In fact, even Singapore has stated that it is crucial to adhere to mediation in an insolvency resolution proceeding, as it would also lead to the development of an international insolvency resolution sector. A committee was also set up to deal with these aspects and the judges of the Singapore Courts reiterated that it is essential to recommend parties to follow ADR as a means of resolving their disputes, specifically insolvency resolution processes. The Hong Kong Arbitration Centre (HKIAC), in 2008 itself propounded the establishment of a mediation scheme while dealing with the insolvency proceedings. The scheme also delved into how arbitration could be the other means of ADR which could be referred to while dealing with insolvency proceedings, in cases wherein mediation failed. This scheme propounded by the HKIAC can be deemed to be regarded as the ‘med-arb’ scheme. HKIAC also contended that by 2009, 85% of the cases were proceeded to mediation or arbitration and HKIAC saw, 100% success rate as all the cases which were referred to mediation or arbitration were resolved. In the United States of America, Mediation as a method of ADR was referred to when the Greyhound Lines Inc. fell under the clutches of bankruptcy. A pre-reorganization mediation plan, taking into its ambit, innumerable claims against Greyhound Lines Inc., which were in consonance with the accidents or the road mishaps. In this case, a number of parties were claimants with regards to the damages caused by the various accidents caused by Greyhound vehicles and the mediators dealt with each creditor individually. The mediation process was carried out quite swiftly and was deemed to be regarded as quite efficient and successful. In fact, even the National Company Law Tribunal’s Mumbai Bench recently passed a judgement involving two companies titled, “Indus Biotech Private Limited v. Kotak India Venture Fund-1[14]”. The NCLT’s Mumbai Bench passed this judgement on the 9^th day of June, 2020. The corporate debtor, “Indus Biotech Private Limited”, who filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 [15], praying that the matter be referred to arbitration for settlement of the matter between the two parties to the dispute. The NCLT passed this judgement after dismissing the Petition filed by the Financial Creditor, namely, “Kotak India Venture Fund-1, who filed the petition under the provisions of Section 7 of the Insolvency and Bankruptcy Code.[16]  The matter began when Kotak India Private Equity Group, the financial creditor, invested in Indus Biotech and was given a share subscription. The financial creditor was an equity shareholder of the company and also had a certain quantity of Optionally Convertible Redeemable Preference Shares (OCRPS). The financial creditor then wanted to convert their OCRP shares into equity shares wholly as they wanted to make a Qualified Initial Public Offering (QIPO) as prescribed by the Securities and Exchange Board of India. The Corporate Debtor, however, failed to convert or redeem the OCPR shares according to the terms of the agreement which was entered into by the parties and therefore, the financial creditor filed a Company Petition under the provisions of Section 7 of the Insolvency and Bankruptcy Act, 2016. The Corporate Debtor wished to invoke the arbitration clause in the agreement which was made between the corporate debtor and the financial creditor. The corporate debtor invoked the same and got a notice issued to the financial creditor invoking arbitration on 20^th September, 2019. After the notice was issued to the financial creditor, the corporate debtor decided to file an application before the NCLT, under the provisions prescribed under section 8 of the Arbitration and Conciliation Act and contended that the dispute shall be referred to arbitration. The NCLT, after due deliberation on the said issue, contended that the application filed by the Corporate Debtor under the provisions of Section 8 of the Arbitration and Conciliation Act, 1996 can be upheld and the said matter can be referred for arbitration. The Tribunal, rejected the petition filed by the financial creditor, which was filed under the provisions of Section 7 of the Insolvency and Bankruptcy Code, 2016 and contended that, “Courts have a mandatory duty to refer the parties to arbitration where an arbitration clause exists.”[17]  However, the Mu
mbai Bench of the NCLT failed to address the issue raised by the financial creditor, as to whether an insolvency petition can be referred to arbitration if the arbitrator cannot be conferred with the powers to begin with an insolvency resolution process. Regardless, the matter was referred to ADR.

Conclusion

With regards to India, there have been innumerable instances wherein the application or wherein the reference of a dispute to ADR has helped the parties to resolve their matters quickly and easily. However, it is imperative to understand that referring a dispute to ADR, allows parties to come up with new, innovative solutions and there is also a chance that the resolution or the conclusion at which the parties arrive, could be deemed to be regarded as financially beneficial for the financial as well as the operational creditors, instead of relying upon the court to draw or come up with a sugar-coated resolution plan which does not delay the entire process leading to a fall in the value of the non-performing assets.

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India is a country which houses varied cultures, wildlife conservation programs and also gives utmost importance to environmental protection. It has been working towards making the environment sustainable for all living organisms since ages. Environmental conservation and the protection for wildlife has been anchored deeply in the roots of India’s adoration and devotion for nature. India has a firm adoration and is certainly devoted towards serving and caring for the mother nature. India’s love and adoration for the conservation of nature and protection of animal welfare can be traced all the way back to the colonial times. A lot of provisions were enacted with regards to the protection of animals. These provisions were specifically designed to recognize and juxtapose the rights of the animals with the rights which were guaranteed to the humans. These laws and measures were enacted as a result of the destruction which was caused in India post the British rule, because the British had perpetrated a lot of mayhem and massacre by their haphazard and wanton hunting practices. After India got its independence from the British, the legislature introduced a number of measures with regards to animal welfare on a national scale. This was done by the then government in power in order to ensure that non-human beings too live a life with dignity just like how humans do. This was done on a national level in order to protect and secure the well-being of animals by juxtaposing their rights with the rights of the humans. The judiciary of India has particularly played a major role with regards to the enforcement and applicability of laws which protect animal rights. The Indian judiciary has time and again stood up for this cause and ensured on a number of occasions that animals are not subjected to cruelty by humans. If at all, they are subjected to any sort of cruelty, then, the judiciary has on numerous occasions taken strict actions upon such individuals ensuring that they do not subject to animal cruelty again and this way it has taken up and supported the cause of animal welfare time and again.

Animal Welfare and the protection of animals has been given utmost importance by the Judiciary and the Legislature as animals are living creatures who cannot express in words what they may go through and it is extremely crucial to support animal rights just like how human rights are supported. Animal welfare has not exactly reached its zenith, however, the judiciary is constantly striving to uphold the rights of these creatures who may be vulnerable to violence on purpose by humans. If at all animals are neglected by humans or are subjected to violence on purpose, then such treatment which is meted out to them can be regarded as animal cruelty. Animal rights are advocated and supported by the judiciary and the legislature in the same way as human rights because it is quite imperative to safeguard and protect animals from oppression, confinement and the abusive treatment which they may be prone to suffer at the hands of the human beings. There are constant conflicts arising between human and animals and they are certainly rising in number with each passing day, which is exactly why it is the job of the judiciary to provide emphasis on animal rights as animal rights can be deemed to be regarded as the voice given to the animals to interact and co-exist with human beings amicably.

This article aims to provide an insight into the various conflicts which have arisen between animals and humans. It also talks specifically with regards to how the judiciary has played an important part in these issues and how it has time and again focused on providing justice to these creatures who cannot speak, enforcing animal rights and juxtaposing animal rights on the same level as human rights. India is one of the many countries that have an animal welfare law in place and these laws are drafted with the necessary provisions relating to Animal Rights which are even enumerated in the Constitution. The Indian Constitution too deals with the protection of rights of animals and certain provisions with regards to the protection of animals are provided under the Fundamental Duties and under the ambit of the Directive Principles of the State Policy. Article 51(A) of the Constitution of India deals with Fundamental Duties. Article 51(A)(g) provides, “It shall be the duty of every citizen of India- to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”[1] Similarly, Article 48A of the Directive Principles of the State Policy elucidates, “Protection and improvement of the environment and safeguarding of forests and the wildlife-The State shall endeavor to protect and improve the environment and to safeguard the forests and the wildlife of the country.” [2]

It is essential to understand that every individual who is a citizen of India enjoys absolute fundamental rights conferred under Part III of the Constitution of India. Subsequently, the animals who are living species, need to be protected and the humans as a community need to understand and consider their well-being and protect them from all sorts of inhibitions.[3] Every living thing has a right to life and security, subject to the laws of the land which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word, “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which is necessary for human life, fall within the ambit of Article 21 of the Constitution of India. The Right to dignity and fair treatment is, therefore, not just confined to humans, but also to animals.

India is still in its infancy when it comes to dealing with the laws protecting animal rights. There is the Prevention of Cruelty to Animal Rights Act, 1960, The Wildlife Protection Act, 1972 and a few provisions of the Constitution of India which protect animal rights, however, there does exist a dire need for the enforcement of a new set of laws with the ever-increasing number of conflicts arising between animals and humans. However, these laws at present are not sufficient enough to protect the rights of animals. Regardless of that, the Indian Judiciary has done a tremendous job in filling the gaps which exist in these animal welfare laws and has time and again protected the rights of the animals significantly.

Here are the 15 Landmark Judgements wherein the courts have played a phenomenal role by transforming environmental jurisprudence in India and protecting the rights of animals and securing the environment.

1.      State of Bihar v. Murad Ali Baig, AIR 1989 SC 1.

This case dealt with the provisions of the Wildlife Protection Act, 1972. It specifically dealt with the hunting of elephants and whether the hunting of elephants is justified under the provisions of the Indian Penal Code and under the necessary provisions of the Wildlife Protection Act. The word, “hunting” has been defined under Section 2(16) of the Wildlife Protection Act, 1972 as follows: “Hunting means- i) the killing or poisoning of any wild animal or captive animal as well as an attempt to do so; ii) capturing, coursing, snaring, trapping, driving or baiting any animal as well as any attempt to do so; iii) injuring or destroying or taking any part of the body of any such animal; iv) in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles or disturbing the eggs or nests of such birds or reptiles.” [4]  The case further dealt with the provisions of Section 9 of the Act which lays down that, “No person shall hunt any wild animals specified in Schedules I, II, III and IV except as provided under Section 11 and 12 of the Act.” [5]

Emphasis was laid upon the provisions of Section 11 and 12 of the Act, which provides a Schedule. Schedule I of the act contained a list of animals, amphibians, reptiles, fishes, birds and insects, e.g. Himalayan Brown Bears, Black Bucks, Cheetahs, elephants, crocodiles, pythons, whale sharks, sea horses, vultures, etc. Schedule II of the act covered animals like the Bengal Porcupine, wild dogs, chameleons, etc. Schedule III of the act covered animals like the barking deer, hog deer, hyenas, etc, however, the Schedule IV covered under its scope hares, pole cats, Indian porcupines and a lot of other species of birds like the cranes, the cuckoos and the bulbuls.

The Supreme Court in this case, held that since the elephant was an animal which fell under the scope and list of animals provided under the Schedule I, it can be assumed that the hunting of elephants is prohibited. The Court was also of the view that the offense of, “hunting” as defined under the Wildlife Protection Act, 1972, is not the same as the offense which is committed under Section 429 of the Indian Penal Code (which provides for the punishment for killing, poisoning, maiming, etc. of any elephants, camel, horse and other animals, the list of which is provided under the ambit of the said section.) The Supreme Court was of the view that the ingredients of the offense provided under the Wildlife Protection Act, 1972 is quite contrary to the ingredients of the offense provided under the scope and ambit of the Indian Penal Code and hence the two offenses are not the same.

2.      Tilak Bahadur Rai v. State of Arunachal Pradesh, 1979 Cr. L.J. 1404.

In this case, the accused shot and killed a Tiger. It was held by the court that while taking a decision with regards to whether the accused acted in good faith or not when he killed a wild animal, it is imperative to understand the nature and the dangers that lurked around the accused and under what circumstances did the accused kill the animal. After due deliberations and arguments put forth by both the parties, the Court was of the view that the accused shot the tiger that charged at him in good faith and as a means to protect himself. The Court was of the view that if the accused hadn’t shot the tiger which was charging towards him, planning to attack him, then the accused would have been dead. Therefore, in order to protect himself, he shot the tiger and this can be amounted as self-defense and was, therefore, justified. It was also clarified in this judgement that if any animal is killed or wounded as by an individual as a means to protect himself, then such animal is the property of the government. The individual who has shot or killed or injured the animal has no claim on such an animal.

3.      Tarun Bharat Sangh, Alwar v. Union of India (1992 Supp (2) SCC 448)

In this case, a social action group, a voluntary organization, filed a Public Interest Litigation (PIL) in the Supreme Court of India under Article 32 of the Constitution of India, claiming that the Rajasthan State Government had issued a number of Notifications declaring the Sariska Tiger Park as a sanctuary, however, the petitioner was of the view that there was widespread illegal mining activity going on in the aforesaid area and the State Government had issued licenses for carrying out such mining activities. It was held by the petitioner that there were a number of notifications issued previously which prohibited all sorts of mining activities in that area, however, the State Government of Rajasthan granted hundreds of licenses for conducting mining activities. The mining of marble, dolomite and other materials was being carried out which was deemed to be in total contravention to the guidelines which were laid down in the Notifications which were issued previously. The petitioner contended that these mining activities impaired the environment and the wildlife within the park. The Court then decided to appoint a committee which would study and understand the objective of the various acts and Notifications which were issued in respect of the particular protected area. The committee found that there were 215 mines which completely fell outside the areas which were deemed to be declared as protected forest, while the other 47 mines fell partially under the ambit and partially outside the ambit of the areas declared as protected forest. The Court was of the view that this was a simple matter wherein it was the job of the court to simply ensure whether the laws which were enacted in that particular area were being adhered to or not and it was the duty of the State to protect the environment and the ecology of the impugned area in question. The Supreme Court took cognizance of this situation and passed an order which directed that no mining operations could be conducted any further within the area which was demarcated as, “protected”. It also went on to further appoint a Committee headed by a retired judge to ensure that the wild life within the park is secure.  Besides this, it directed that all the mining activities which were conducted in the mines which were located outside the protected forest areas, but within the territorial boundaries of the tiger reserve could continue for a period of four months, however, if no permission is obtained by the miners within a period of four months, then mining activities in the entire area which was declared as a tiger reserve had to be stopped for good.

4.      Naveen Raheja v. Union of India [(2001) 9 SCC 762].

In this case, the Supreme Court dealt with a gruesome issue. The issue was with regards to the skinning of a tiger in a zoo in Andhra Pradesh. The Supreme Court was in utter shock and dismay when it first heard the facts of the case. The Court was utterly tormented at the fact that such a gruesome act was indulged into by humans, rendering the voiceless animal helpless and in sheer pain and agony. The tiger received no protection from those whose duty it was to protect it and look after its well-being. The Top court of India, therefore, was of the view that it was extremely necessary to summon the chairperson of the Central Zoo Authority to appear before the court in person and to elucidate on what steps and measures were being taken to protect and preserve the tiger population in zoos and reserved forests. The Supreme Court then passed appropriate orders in the said issue and gave the necessary orders with regards to the protection of tigers. The Supreme Court elucidated that it is necessary for the Central Zoo Authority to take cognizance of this issue and take the necessary steps in order to protect the plight of these voiceless creatures as the situation in which they are is quite distressful and far from satisfactory.

5.      Ivory Traders and Manufacturers Association v. Union of India, AIR 1997 Del 267)

In this case, the petitioners were challenging the ban which was imposed upon them by the authorities for them having possession of mammoth ivory and articles made from mammoth ivory. The Petitioners in this petition which they had filed also challenged certain amendments which were made in the Wildlife Protection Act, 1972 whereby the trade of imported ivory articles was banned. The main contention of the Petitioners in this case was that they did not fall under the necessary provisions as provided under the ambit of the Wildlife Protection Act, 1972 and they were not even covered by the Amendment Act No. 44 of 1991. The Petitioners were mainly aggrieved by the ban which was imposed by the Wildlife Protection Amendment Act, 1991, which curtailed them from trading and storing in ivory which was extracted from African Elephants. They contended that they dealt in the ivory which was legally sent to India and they were simply traders, causing no harm thereby to the African Elephants. They challenged the constitutional validity of the Wildlife Protection Act, 1972 and the Wildlife Protection Amendment Act, 1991 on the grounds that it violated their right to practice any profession, or to carry on any occupation, trade or business as guaranteed under Article 19(1)(g) of the Constitution of India.[6]  A full bench of the Delhi High Court presided over this case and held that a ban which was imposed, imposing restrictions upon the sale and the trade of ivory products cannot be deemed to be regarded as unreasonable and unconstitutional. The Court was of the view that the restriction which was imposed under the provisions of the Wildlife Protection Act, 1972 and the Amendment to the Act was in consonance to the provisions of the Constitution and were not ultra vires the provisions of the Constitution. The restriction which was imposed upon the sale and the storage of ivory goods was a reasonable restriction on the fundamental right to carry on business. The Court was of the opinion that a law which is made to protect an animal who is at the brink of extinction, cannot be regarded as ultra vires to the provisions of the Constitution and the said amendment was done keeping in mind the protection of the endangered species. The Court held that such a law cannot be deemed to be regarded in contravention to the provisions guaranteed under Article 19(1)(g) of the Constitution of India.

6.      Rajendra Kumar v. Union of India, AIR 1998 Raj. 165.

In this case, the petitioner challenged the constitutional validity of Sections 5, 27,33,34,35 and 37 of the Wildlife Protection Amendment Act, 1991, Amendment Act No. 44 of 1991, alleging that the impugned sections of the Wildlife Protection Amendment Act were ultra vires the provisions of the Constitution of India. The petitioner was of the view that the aforementioned sections of the impugned act, violated his Fundamental Right guaranteed under Article 19(1)(g) of the Constitution of India.[7]  The Petitioner was a trader of ivory products and the amendment which has been referred to above banned the sale and trade of Ivory products and articles made out of ivory. The Petitioner was of the view that his livelihood was lost and contended that the ivory which he traded in was extracted from mammoths, who became extinct 17,000 years ago and the mammoths are an entirely different species as compared to the African and Indian Elephants. He elucidated upon the fact that the export of items made out of ivory was very much prevalent and it was demanded in huge quantities in the west. He went on to contend that the sale and trade of ivory products is an integral part of the Indian Culture and relates to the work of Indian Craftsmen and it is the only and perhaps the major source of income for these craftsmen. He further contended that if the ban is imposed on the trade of ivory products then it could further lead to a rapid increase in the poaching of Indian Elephants. The Petitioner was of the view that the ivory which is extracted from mammoth, an extinct species does not fall under the ambit and scope of the Wildlife Protection Act. The Petitioner submitted that because of a ban which has been imposed the dealers in mammoth ivory have too stopped dealing in ivory. The Rajasthan High Court after hearing the contentions laid down by the Petitioner, came to the conclusion that the ban which was imposed, imposing restrictions upon the sale and the trade of ivory products cannot be deemed to be regarded as unreasonable and unconstitutional. The Court was of the view that the restriction which was imposed under the provisions of the Wildlife Protection Act, 1972 and the Amendment to the Act was in consonance to the provisions of the Constitution and were not ultra vires the provisions of the Constitution. The restriction which was imposed upon the sale and the storage of ivory goods was a reasonable restriction on the fundamental right to carry on business. The Rajasthan High Court decided to uphold the constitutional validity of the ban, and held that such a ban was necessary and was passed in light of the provisions enumerated under the International Convention, namely the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

7.      Animal Welfare of India v. A Nagaraja and Ors, 595 (2014) 7 SCC.

The traditional sport of Jalikattu, which is practiced in the State of Tamil Nadu as a part of a ritual during the Pongal festival every year in January was brought under the scanner of the Madras High Court and the validity and the constitutionality of the traditional sport was challenged. The traditional sport of Jalikattu which was put to question in this case involved a series of fights between robust bulls. These robust bulls were released into the crowd of participants who tried to hold onto the fierce bulls. Whoever could fight the bulls and reach the finish line, was awarded prizes which were sponsored by the various sponsors of the festival. This was on the similar lines to the bull fights which have been utterly famous in other countries like Spain and Italy. A lot of people, right from the participants to the spectators, usually ended up injuring themselves in the process of fighting with the raging bulls. In fact, because of this, the bulls were also subjected to harsh and poor treatment at the hands of the participants. There were a lot of reports circulated with regards to the bulls being violently abused by participants and these reports made their way to the Animal Welfare Associations. The Animal Right Activists decided to take a prompt decision and curtail the practice of Jallikattu in the State of Tamil Nadu, calling for a blanket ban on the practice of this horrific sport. As a result of this, the supporters of the Jallikattu event held that it was unethical on the part of the Animal Welfare Association and the Animal Rights Activists, to deprive individuals from practicing their age old ancient customs. The supporters of the event were of the view that imposing a blanket ban on the said event was unconstitutional and an unreasonable act thereby violating their fundamental rights which were guaranteed to them under Article 25[8] and 26[9] of the Constitution of India. The supporters of the event further contended that, as it is an ancient practice which incentivizes the retention of native breeds of bulls like the Kangayam and Pulikulam breeds. They were of the view that the native breeds belonging to the State of Tamil Nadu are hardier drought beasts that are deemed to be regarded as more affordable and are easier for the local farmers in the State of Tamil Nadu to afford. However, a case was filed by the Animal Welfare Board of India in the Honorable Supreme Court of India, seeking a blanket ban on the ancient traditional sport. The Supreme Court ruled in the favor of the supporters and submitted that the age old practice of Jalikattu should be permitted, however, subject to certain conditions which were laid down by the Supreme Court. The Supreme Court held that the Animal Welfare Board would act as a watchdog and would closely monitor the sporting event, in order to ensure that the bulls are being treated properly by the participants, thereby ensuring that the bulls are safe and if any mishap occurs, then the Animal Welfare Board could take actions according to the gravity of the incident. Then, in the 2011, the Ministry of Environment and Forests, issued a notification asking the organizers of the Jalikattu Event to ban the use of bulls as performing animals and the Ministry with the said notification also provided that the said sporting shall be banned henceforth. Despite this notification, the organizers of Jalikattu continued practicing their age old traditional sport and used bulls as the participating animals. In fact, they continued to practice their age old customary sport with the help of the Tamil Nadu State Government’s backing. The Tamil Nadu Regulation of Jallikattu Act was passed and they continued playing this sport every year, using bulls as participating animals and subjecting them to cruelty. However, in the year 2014, the Supreme Court in response held that the state law passed by the State of Tamil Nadu was unconstitutional and unreasonable. It provided instructions to the Union Government to amend the provisions of the Prevention of Cruelty Act (PCA), 1960, and laid down guidelines stating that, “bulls” shall be included under the ambit of the Act. Going against the Supreme Court’s ruling, the Ministry of Environment and Forests further went on to issue a notification in January, 2016, again providing a green signal to the organizers of the Jallikattu event to practice the ancient sport. However, the Animal Welfare Board and PETA India decided to take cognizance of the said issue and again on 14th January, 2016, they filed a number of pleas in the Apex Court, praying that the Supreme Court issues a stay order on the Government notification and upholds the ban. The decision which was passed by the Supreme Court, created a huge mess and lead to a strife between the locals and the authorities. The supporters of the event came out in huge numbers to support their age-old custom and traditional practice, by carrying out large scale protests. The protests emerged because the supporters of the event were thoroughly determined to make sure that the Supreme Court agrees to their views and understands that it is violating their fundamental rights. A lot of protests took place against the Apex Court’s decision, several members and participants of the Jallikattu were even arrested and detained by the Police Authorities. On 26th July, 2016, the apex court maintained its stand and refused to lift the ban on the practice of the Jallikattu event, when a review petition calling the ban as unconstitutional and unreasonable was filed by the Tamil Nadu Governor. As a result, the protests continued and a lot of people were arrested and put behind bars. The Tamil Nadu Governor with the help of the Center decided to pass an Ordinance which would allow the practice of the Jallikattu Events. The State Government also passed a new piece of legislation simultaneously, which received the assent of the Center. This new piece of legislation had a provision which exempted and removed Jallikattu events from the scope of the provisions of the Prevention of Cruelty Act, 1960. The legal battle with regards to the Jallikattu event is still going on and continues to remain unresolved till date, with the question of its legality popping up each time it is taken up for deliberation. Despite all of these legal challenges which were brought upon this age-old practice, the sporting event is still practiced and played with utmost zeal and enthusiasm by the natives and indigenous population of Tamil Nadu. In fact, it is quite imperative to understand that before all these legal challenges were brought upon this age-old practice, the sporting event was only practiced in a few areas, however, as a result of the emergence of the legal battle, this sporting event gained prominence and has provided this event a massive sporting impetus. The Jallikattu event is now organized in an extravagant manner, the organizers are exorbitantly spending huge sums, despite the regulation and the ban which has been placed on it by the Supreme Court of India. The matter was even referred to a Constitutional Bench. A lot of questions were later raised with regards to whether this sporting activity, which is a part of the tradition of the indigenous people belonging to the State of Tamil Nadu, can be protected under the Constitution of India and whether it could fall under the ambit of Article 29(1) of the Constitution and whether the event could receive such protection under the scope of the Fundamental Rights.

8.      People for Ethical Treatment of Animals v. Union of India, Writ Petition (PIL) (Lodging) No. 2490 of 2004.

In this case, the People for Ethical Treatment of Animals (PETA) filed a Writ Petition in the Bombay High Court against granting of a censorship certificate to a film titled, “Taj Mahal” under the Cinematography Act, 1952. PETA was of the view that protecting the welfare of animals is a stated constitutional goal embodied in Article 51A (g) and is a matter of legislative policy under the Prevention of Cruelty to Animals Act, 1960.[10]  PETA’s main allegation and the contention which was put forth by it was that there was an utter violation of the provisions of the Prevention of Cruelty to Animals Act, 1960, and there was also a violation of the provisions of the Performing Animals Registration Rules, 2001, and these violations were made by the makers of the film, “Taj Mahal” during the shoot of the film. PETA was of the view that a film which wishes to use an animal needs to obtain a no-objection certificate from the Animal Welfare Board of India as it is deemed to regarded as a pre-requisite before the Central Board of Censorship grants the certificate of censorship to the particular movie. The High Court, in this case, ruled in favor of PETA and held that for any movie which aims or wishes to use an animal, it is a pre-requisite which is of utmost importance and needs to followed by every movie, that is, they firstly need to obtain a certificate from the Animal Welfare Board of India, which contains the various provisions of the Performing Animals Registration Rules, 2001. The Welfare Board would check whether the film which aims to use an animal in the course of its shooting, is not subjecting the animal to cruelty and is taking proper care of the animal. The Animal Welfare Board would then scrutinize whether the makers of the particular film are adhering to all the provisions as per laid down under the various sections of the Performing Animals (Registration) Rules, 2001 and at the same time whether they are adhering and following the various provisions of the Prevention of Cruelty to Animals Act, 1960. This ruling which was passed by the Bombay High Court in 2006, acted as protection to non-human living beings from being exploited or being subjected to cruelty during the course of the shooting, which usually tends to go on for very long hours. The aforesaid ruling of the Bombay High Court prevented animals from abuses and cruelty. At the same time, the makers of films then became extremely cautious while treating animals on set and during shoots. They provided them with food, water, shelter and ensured that they were not subjected to any sorts of cruelty from any members of the crew.

9.      Ozair Hussain vs. Union of India, Civil Writ Petition No. 837 of 2001.

In this case, the Petitioner filed a writ petition seeking a direction to the respondents to protect the rights of various individuals who are severely against the use of animal and animal products, by making it compulsory for the manufacturers to print on their packaging, a list of contents that go into manufacturing a product. This will enable the consumers to make an informed choice when they tend to buy various products. The Petitioner further demanded that the respondents shall provide and disclose without any haste, the complete list of ingredients on the packets of the cosmetics, drugs and food items which it sells. If it uses any animal oil or animal meat, then it should be a compulsion for such companies to clearly mention the usage of such materials on the packaging of its goods. Further, the petitioner contended that it should be made necessary for companies who manufacture cosmetics, drugs and products made from animals to put a sign on the packaging of its product, which should be easily identifiable and should convey that it has an animal ingredient prevalent in it. The Petitioner contended that 60% of Indians are vegetarians and therefore it is imperative for manufacturers to specify the contents and the ingredients that they use in the manufacturing of their products, so that it would help the individuals to make the proper choice when it comes to the consumption of products and they could rely on products which are in consonance with their believes and opinions. The Petitioner was an animal welfare volunteer and a member of a number of animal welfare organizations. He was also a conscientious objector when it came to the consumption and use of animals and their remains for food, cosmetics and drugs. The Petitioner’s main contention was that there should be a full disclosure made by the various companies manufacturing cosmetics and food products and that such products made by them should have an easily identifiable mark upon them which would convey the origin or the ingredients of their products, showing whether their products are vegetarian or non-vegetarian. This would enable any person, be it an illiterate person or a literate person, to make informed choices before selecting the products. The Petitioner prayed that Articles 19(1)(a), 21 and 25 of the Constitution of India and even the Preamble to the Constitution of India demands the full disclosure of information. In a nutshell, the main contention of the Petitioner was whether the provisions of the Constitution mandate disclosure of information. The Delhi High Court, taking into consideration the provisions of Article 19(1)(a) which deals with the freedom of speech and expression and also taking into consideration, the provisions of Article 10(2) of the International Covenant on Civil and Political Rights, declared that the packaging of various food items, drugs (except those which fall under the scope of life saving drugs), cosmetics, shall contain a full disclosure, providing the complete list of ingredients that go into the manufacturing of the product. It should contain information with regards to whether it is a vegetarian or a non-vegetarian item. All items of food that contain whole or a part of any animal, except milk, shall be identified by a brown circle within a square outline showing that it is a non-vegetarian food item. Similarly, the products which do not contain any animal product, shall be identified by a green circle with a square outline, showing that it is a vegetarian food item. The reason behind this judgement was that an individual’s freedom of speech and expression is extended to his/her food choices as well and therefore, the judgement laid down by the Delhi High Court in this case, enables the citizens to make informed choices with regards to the products they buy and they consume.

10.  Gauri Maulekhi v. Union of India, Writ Petition (PIL) No. 77 of 2010.

This case dealt with the illegal export of cattle and buffaloes from India to Nepal. In Nepal, the Gadhimai festival is celebrated every five years. This festival, which is a tradition followed by the indigenous population of the Bara District of Nepal; wherein they sacrifice a number of animals such as buffaloes, rats, goats, pigs, birds, et cetera. They sacrifice these animals with the aim that the sacrifice will help them fulfill their wishes. The animal sacrifice which is undertaken in the Gadhmai Festival could be regarded as one of the world’s largest animal sacrifices ever. Before the commencement of the Gadhmai Festival, a huge number of animals are usually exported from India to Nepal. These animals are then used by the indigenous population of Nepal for sacrificing with the aim that it would fulfil their wishes. However, in this case, in 2014, the Supreme Court of India before the Gadhimai Festival in Nepal, vide its order dated 17th October, 2014, directed that the Central Government of India shall ensure that no cattle and buffaloes are transported to Nepal illegally. The Supreme Court of India laid down this order in line with the provisions of the Foreign Trade (Development and Regulation) Act, 1992, which conferred the powers upon the Central Government of India to look into the export and import policy and alter it according to the need of the hour. This power is conferred upon the Central Government as provided under the provisions of Section 5 of the Foreign Trade (Development and Regulation) Act, 1992.[11]  The Court further relied upon the Schedule 2 at serial no. 10 of Table-B of the Act and provided that live cattle and buffalo fall under the scope and the ambit of animals who cannot be exported without the exporter having a license to export them. The Supreme Court also laid emphasis on Section 11(3)(e) of the Prevention of Cruelty to Animals Act, 1960. The court was of the view that, “by reason of Section 11(3)(e) of the Act, commission or omission of any act in course of destruction of any animal in question cruelly, unless, of course, such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering.”[12]  The Court was of the view that unnecessary pain or suffering cannot be inflicted upon any non-human living beings simply to satisfy the desires of humans. It was also held by the court that sacrificing an animal can no way be deemed to be regarded as a means to appease the Gods. Before the passing of this judgement, Sahastra Seema Bal collaborated with the petitioner to make a set of rules and regulations which need to be strictly adhered to when dealing with issues in the animal markets and the cattle markets. These set of rules and regulations which were laid down by the petitioner in collaboration with Sahastra Seema Bal was declared to be certified by the Court and the Court in its judgement, laid emphasis on the fact that the recommendations provided in these regulations need to be strictly followed and adhered to.

11.  N.R. Nair and Ors. v. Union of India and Ors, Civil Appeal Nos. 3609-3620 of 2001, decided on May 1, 2001.

The main challenge in this appeal which was faced by the Supreme Court was the special leave granted by the Kerala High Court. The Kerala High Court pronounced a decision in this case and upheld a notification which was issued by the Ministry of Environment and Forests, which stated that bears, monkeys, tigers, panthers and lions cannot be trained or exhibited as performing animals. The basic facts of this case were that on 2-3-1991, a notification which was drafted under the provisions of Section 22 of the Prevention of Cruelty to Animals Act, 1960 was issued. This notification was issued in light of curtailing the exhibition and training of bears, monkeys, tigers, panthers and dogs. This notification was therefore challenged by the Indian Circus Federation in the Delhi High Court. Post the issuance of the notification, another rule was passed which excluded dogs from the said notification. The Delhi High Court then took cognizance of the issue and a Division Bench of the Delhi High Court required the Government of India to have a fresh perspective into the notification. After this, a committee was set up by the Government of India which comprised of the Additional Inspector General (Wildlife), Director, Wildlife Institute of India, Member Secretary, Central Zoo Authority, Additional IGF (Retired) and the Director of the Animal Welfare Association. The committee consisting of the aforementioned individuals furnished a detailed report with regards to the impugned notifications and issued under Section 22 of the PCA, 1960, that the training of bears, monkeys, tigers, panthers and lions was deemed to be regarded as prohibited. This notification was then challenged in the Kerala High Court and the Kerala High Court passed a judgement in consonance to the aforementioned notification on 6-6-2000, wherein it upheld the validity of the notification which was passed by the committee consisting of the aforementioned individuals. In this appeal, yet again, the validity of Section 22 was brought into question. The Appellants main contention was that the provisions of Section 22 of the PCA, 1960 were arbitrary and unreasonable. They were of the view that under no circumstances provided under the ambit of Section 22, can the Central Government issue a notification banning the exhibition and training provided to any animal. The Supreme Court was of the view that animals are usually subjected to cruelty and then they are constantly abused and are put behind the four confines of a cell, trapping them and restricting their free movement. The Supreme Court dismissed the argument of the Appellants on the ground that the right to carry out any trade or business under Article 19(1)(g) of the Constitution of India was not violated in any way. The Supreme Court held that non-living human beings too have the right to free movement and this cannot be curtailed in order to fulfill the fundamental rights of the appellants. This was done as the animals were injured and tortured in the course of the training and exhibitions which were conducted by the Circus Authorities and were kept in a very dastardly manner. The Court upheld the Notification and the judgement of the Kerala High Court, as no animal should suffer and go through any sorts of pain and agony. The Court was of the view that the pain and suffering caused to the above mentioned animals would not be allowed under any circumstances.

12.  Shri Ajay Madhusudan Marathe v. New Sarvodaya CHS Ltd., First Appeal No. 676 of 2009.

In this case, the Consumer Court decided the case in favor of a resident who had lodged a complaint in the Consumer Dispute Redress Forum, that the Co-operative Housing in which he resided, made and passed a resolution which prohibited the entry of dogs into the lift of the building. The Society passed this resolution on the grounds that the dog was not deemed to be regarded as a consumer and a dog’s usage of the services of the building could lead to a massive spread of diseases and infections. The lift, being a closed compartment would store bacteria and germs which may be carried by the dog in his fur and this could spread like wildfire in the entire building and the lifts, thereby affecting the lives of the residents. These were the grounds which were put forth by the society for passing the said resolution, thereby disallowing pet dogs from entering the lift. The Court after hearing both the sides and after due deliberation, held that, the owner of the dog is a member who has a house in the impugned co-operative housing society and thereby falls under the ambit of the definition of “consumer” as provided under the provisions of Section 2(7) of the Consumer Protection Act, 1986. The Court was of the view that the owner’s complaint and his grievance which he made to the Consumer Court was well within his rights. The Court held that the dog had a valid Kennel Club of India license and was registered with the Municipal Corporation. The Court also held that the dog was safe and was free from any sorts of diseases as the dog had even got a Health Certificate issued by the Bombay Veterinary College. This ruling laid a precedent that owners of houses in a co-operative society cannot be prevented on any grounds if they have pets and those pets can utilise all the services of the building in the similar manner as that of their owner.

13.  Mustakeem v. State of U.P., 1999 (3) ACR 2668.

In this case, the matter was filed before the Allahabad High Court. In this case, goats and cattle were transported to be slaughtered in a very dastard and barbaric manner. These goats and cattle were tied to each other very tightly, severely violating the provisions of Section 11 of the Prevention of Cruelty to Animals Act, 1960.[13] An FIR was lodged against the alleged owner of the cows and the goats for subjecting the animals to cruel and inhuman treatment. The owner requested the release of the cattle under the provisions of Sections 3,5a and 8 of the Prevention of Cow Slaughter Act. It was contended that it was the right of the owner of the cattle to ensure that no cattle were subjected to cruel or inhuman treatment, especially in cases where the ownership of the cattle is also in question. The cattle were under the custody of the U.P. Police Force during the pendency of the matter. The U.P. High Court, after a few deliberations were made, handed over the custody of the cattle back to the owner who had previously subjected the said cattle in question to cruel treatment. This step was taken when the matter was still under deliberation and was ongoing. An appeal was then made in the Supreme Court of India, wherein the Supreme Court passed a judgement declaring that the cattle should to be taken away from the custody of the alleged owner and should be housed in a separate Gaushala, which should be run and protected by the State Government of U.P., who as a matter of fact, previously too, held the custody of the said cattle. With regards to this judgement, it is imperative to understand that the Court held firm on its ground and held that once an animal is taken away from an individual’s personal care and protection because it is subjected to cruelty when the animal is in his/her possession, then in such a case, the animal under no circumstances whatsoever shall be returned back to the same person who previously caused the animal extreme pain and agony.

14.  Varaaki v. Union of India and others, Writ Petition (C) No. 689 of 2015, decided on 28th September, 2016.

In this case, a two judge bench of the Supreme Court, comprising of the then Chief Justice H.L. Dattu and Justice Amitava Roy of the Supreme Court of India, on 28th September, 2016 passed a judgement refusing to get into the intricate matters dealing with religion. This case dealt with a religious practice of sacrificing animals with a motive to appease the gods and the goddesses. The Court was of the view that sacrificing animals under the garb of a religious practice is not justified by the law on any grounds as it is a clear case of subjecting the animals to cruelty under the various provisions of The Prevention of Cruelty to Animals Act, 1960. The Public Interest Litigation (PIL) was filed by a Chennai-based journalist, Varaaki. The Supreme Court straightaway declined the PIL filed by the journalist. The Supreme Court was of the opinion that it was not in the position to pass an order preventing the killing and sacrificing of animals as a religious practice, when it has as a matter of fact, been sanctioned by the law. The Petitioner contended that when the animals are subjected to being slaughtered at various slaughter houses, it is usually governed by various rules and regulations and these animals which are slaughtered, are killed and slaughtered by trained individuals who adhere to the rules and regulations. The Petitioner submitted before the court that during the religious sacrifices, the animals are subjected to utmost pain and agony as they are slaughtered by untrained professionals, thereby subjecting these naïve creatures to even more cruelty. The Petitioner was of the view that such acts are clearly barbaric in nature and need to be curtailed. The Court, however, rejected the PIL filed by the Petitioner. However, Chief Justice Dattu held that, “The Prevention of Cruelty to Animals Act itself gives that right (of animal sacrifice as a religious practice.)[14] The Court gave a rather strange judgement in this case and held that it is extremely crucial to uphold the faith and the religious ceremonies of each religion as these matters of religion are very sensitive to touch upon and one cannot be blindfolded by the centuries old traditions, which are still being followed today like clockwork. In light of these reasons, the PIL was rejected and the court allowed the petitioner to implead as a party in the matter before the Apex Court wherein the Apex Court was dealing with a matter, thereby challenging the decision of the Himachal High Court, which passed an order banning the sacrifice of animals on the grounds of religion.

15.  Kennel Club of India (KCI) v. Union of India, AIR 2013 (NOC) (Supp) 1439 (Mad.)

In this case, the petitioner sent a notice to the Veterinary Council of India on 11.11.2011, stating that the Animal Welfare Association Board of India, provided them information that puppies of dogs belonging to breeds like Doberman, Cocker Spaniels, Great Danes, Boxers, et cetera, were all subjected to avoidable and unnecessary cosmetic surgeries, putting these puppies through extreme pain and agony. These surgeries were done by the Veterinary Doctors and they performed surgeries such as the docking of the tails of these naïve puppies or perhaps by cropping off their ears. The Veterinary Surgeons were of the view that they performed these surgeries on the puppies on the demands made by their owners and they carried out these surgeries with utmost precision and care, ensuring that these puppies are not subjected to cruelty at the hands of the doctors. The Petitioner, however, was of the view that this method of cropping the ears of the puppies or docking their tails was severely against the provisions of the Prevention of Cruelty to Animals Act, 1960 and violated Section 11 of the Prevention of Cruelty to Animals Act, 1960. The petitioner submitted that the said procedures caused severe mutilations to these puppies and were deemed to be regarded as punishable offenses. The petitioner relied upon the fact that countries like the UK have already taken a step forward and banned such activities, wherein the tail of the puppies is either docked or the ears of the puppies are cropped. The petitioners demanded that the Veterinary Council of India should take cognizance of the said issue and curtail the practice of the aforesaid issues. However, if they failed to do so and instead continued practicing then a strict action should be taken on those Veterinary Surgeons by the Animal Welfare Board of India. The Honorable High Court of Madras however, ruled in favor of the veterinary surgeons and quashed the notice issued by the Kennel Club of India to stop the practice of cropping the ears of the puppies. The Court was of the view that cropping the ears of the dog or docking their tails, does not subject them to any sorts of cruelty as provided under the provisions of Section 11 of the Prevention of Cruelty to Animals Act, 1960. It is the sole discretion of the owners of the puppies to get their pup’s tail docked or to get its ears cropped. The Madras High Court was of the view that the cropping of ears of a pet dog does not amount to mutilation and subjecting the dog to aggravating pain and agony. The Court held that the Veterinary Surgeons registered with the Veterinary Council of India were specifically trained to carry out such operations with ease, thereby ensuring that the puppies didn’t have to undergo any sorts of any pain and ensured that they were under no circumstances subjected to cruelty. The Court also held that neither the Animal Welfare Board of India, not the Veterinary Council of India had powers to prohibit the veterinary surgeons from performing various operations of certain breeds of pet dogs such as the Doberman, Cocker Spaniel, Great Danes and the Boxer.

Conclusion

These above rulings made by various High Courts and a few judgements with regards to Animal Rights passed by the Apex Court of India show that our legal jurisprudence has certainly kept animals at the same threshold as that of humans. The Rights of Humans are extended to animals and they are treated equally, however, this does not mean that the constitutional freedoms which are guaranteed to humans are also in a similar way guaranteed to these non-human living beings. Certain rights like the right to freedom of expression and right to freedom of movement is somewhere curtailed and not given to these naïve creatures who possibly cannot explain their feelings like how humans do. Tons of arguments have been put before when various High Courts pronounced their judgements dealing with the cruelty which these animals are subjected to. It is imperative to understand that the ambit of the judgements or the verdicts, somewhere, do not cover certain specific areas where animal rights need a clear and better picture. The concept of equality is a figment of one’s imagination and it certainly does not exist. In the true real world, the concept of equality could be deemed to be regarded as a façade, because certain rights which are extended to humans are certainly not extended to animals and the laws protecting animals who are subjected to cruelty, have a lot of gaps persisting within them. Granting or equating certain rights which are thoroughly enjoyed by the wildlife, are not granted to domesticated or pet animals leading to the undermining of the wildlife protection causes.

In the recent times as well, India has seen a lot instances wherein big changes were brought about. Individuals in a lot of states are witnessing a change in their food consumption habits. The State of Maharashtra has banned the consumption and sale of beef. The People for Ethical Treatment of Animals (PETA) has also taken up a number of initiatives supporting animal rights and protecting animals who are subjected to cruelty. Despite all of these measures, the laws of the country somewhere need to be more stringent when dealing with individuals who commit offenses on animals, thereby subjecting them to a barbaric treatment and ensuring that they go through a lot of pain and agony. An incident occurred recently, wherein a dog was dastardly bashed by the security guards of a residential complex in Mumbai. The videos of this incident spread like wildlife, catching the attention of the various animal welfare associations and animal activists, however, as of now there has been no strict action taken against those barbaric men. An FIR had been filed and strict action against those individuals was promised, however, this incident hasn’t received enough attention. Similarly, an event occurred recently in the State of Kerala, wherein a pregnant elephant’s death spread outrage across the world. Animal Right Activists and several other individuals have filed a petition in the Supreme Court praying the Court to direct the Central Bureau of Investigation to conduct an investigation with regards to the pregnant elephant’s death. This incident occurred in Kerala when a pregnant elephant died as a result of eating a pineapple which contained firecrackers. The petitioners in this case demanded that the Supreme Court shall intervene in the said matter and set up a special investigation team to further investigate and furnish a report containing the actual reasons of the death. The residents of the place where this incident occurred claim that, the firecrackers were placed inside the pineapple in order to kill wild boars which has been sanctioned by the State Government of Kerala, as wild boards usually tend to spoil the farms causing huge losses to the farmers. However, the petitioners are keen that an in-depth investigation be conducted to find out the real cause of death.

These incidents show as to how low humans could stoop down and what they are capable of. It is exactly for this reason it is extremely crucial for the legislature to come out of its lethargy and enforce certain stringent provisions in favor of animal rights which provide them complete protection. India is in a dire need of passing a wholesome piece of legislation which deals with all aspects of animal rights and the depravity that these animals face. There are laws which are enacted and are in place already, however, the provisions of these laws are outdated and need to be updated at the earliest, in order to ensure that animals are no longer subjected to ill-treatment at the hands of creatures who claim to be more sensible and smarter than them. It is time that India realises that humans are not the only inhabitants of this planet.

The post 15 Landmark Judgement of Indian Judiciary on Animal Rights appeared first on Legal Desire Media and Insights.

To begin with, it is extremely necessary to understand what a foreign court is and then to understand what a foreign judgement is.

Section 2, sub-section 5 of the Code of Civil Procedure defines a foreign court. “A foreign court” means, “a Court situated outside India and not established or continued by the authority of the Central Government1.”

From the above definition provided by the Code of Civil Procedure, it is clear that there are two conditions which need to be satisfied in order to show whether a court falls under the ambit of the definition of a foreign court as provided under Section 2(5):

1) It must be situated outside India.

2) It must not have been established or continued by the Central Government.

Section 2, sub-section 6, defines what a foreign judgement is. A “foreign judgement” means, “the judgement of a foreign court2.”

Basically, a foreign judgement is a judgement which is passed by a court not within the territorial boundaries or within the territory of India, which as referred to above, is a foreign court. For example, courts in England, Scotland, Burma, Pakistan, et cetera. A foreign judgement is passed in a foreign court and the same could be deliberated upon in the District and the High Courts in India, provided they are conclusive. This article would be dealing with the same issue at hand, as to whether a foreign judgement can be executed in India or not. If it can, then how can it be enforced and if can’t, then why it cannot be enforced or executed.

Firstly, the important aspect which needs to be focused upon is, can a foreign judgement be enforceable in India. Answering this question in the affirmative, it is indeed possible to apply foreign judgements in India. However, as it is said, that the law is never crystal clear and it is imperative to comprehend the law clearly and read between the lines. Similarly, a foreign judgement too, is subject to certain conditions which are laid down in the Code of Civil Procedure, 1908. A judgement which is deliberated upon by a foreign court which is not in India, but in a reciprocating territory can be executed in India. The focus on what a

reciprocating territory is shall be analysed in the course of the article. However, it is important to note as to how a foreign judgement or a foreign decree can be enforced and applied in India under the provisions which are prescribed for its enforcement under the Code of Civil Procedure, 1908.

The applicability of Foreign Judgements and Decrees in India is governed under Section 44A of the Code of Civil Procedure (CPC) read along with the provisions of Section 13 of the Code of Civil Procedure. According to Section 13 of the Code of Civil Procedure, 1908, a proceeding against a foreign judgement can be instituted in the following two ways:

1) A proceeding could be instituted under the provisions of Section 44A read alongside the necessary provisions which are provided in Section 13 of the CPC, this is when the matter that has to be challenged is decided by a competent court in the, “reciprocating territories.”

2) There are reciprocating territories and non-reciprocating territories. In case, a judgement which is passed in the territory of a non-reciprocating country needs to be challenged, then a fresh civil suit needs to be filed in the court in India in order to challenge the judgement passed by the foreign court. However, not only civil, but even criminal proceedings could be instituted challenging the judgement or the decree, passed by a court in a reciprocating or a non-reciprocating territory, however, they are also subject to certain exceptions which shall be dealt with ahead.

Before moving further and getting into the intricacies as to how international judgements can be enforced and applied in India, it is necessary to firstly rely upon the definition of what a Reciprocating Territory is. Section 44A of the Code of Civil Procedure explains what reciprocating territories are. It means, “any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory and the superior courts with reference to any such territory, are the courts as may be specified by the notification of the government3.” This means that a reciprocating territory is any country or any territory which is not in India, i.e. it is far away or out of the territorial boundaries of India and these countries or territories have been deemed to be declared as a reciprocating territory by the government by providing a notification in the Official Gazette. It also states that the Superior Courts in those territories are also deemed to be competent courthouses, who have passed the judgement which could be adjudicated in the courts in India. So far, there are twelve countries who can be identified as reciprocating territories of India and they are, the

United Kingdom, Aden, Fiji, Republic of Singapore, Federation of Malaysia, Trinidad and Tobago, New Zealand, the Cook Island (including Niue) and the trust territory of Western Samoa, Hong Kong, Papua and New Guinea, Bangladesh and recently even UAE (United Arab Emirates) has been regarded to be a reciprocating territory to India, by the notification dated 17.01.2020, in the Official Gazette.4

Judgements which are passed by a non-reciprocating territory can too be enforced in India in the same manner as if a judgement by a reciprocating country is challenged, which is provided under the provisions of Sections 13 and 14 of the Code of Civil Procedure, however if it falls within the ambit of the exceptions which are guaranteed under Section 13, the said judgement cannot be deemed to be conclusive. For a judgement to be conclusive, it should not fulfil any of the exceptions which are guaranteed under Section 13 of the Code.

2. Section 13 of the Code of Civil Procedure.

Section 13 of the Code of Civil Procedure, 1908, states as to when is a foreign judgement not conclusive. A judgement is not conclusive when it is given by the foreign court, on the basis of an ex-parte hearing and without listening to both the parties. However, there are many more pre-conditions which come along when it comes to declaring a judgement as non-conclusive, which are elucidated in clauses (a) to (f) of Section 13 of the Code. A judgement shall be deemed to be conclusive, if a dispute arises between two parties abroad in a foreign court and the court adjudicates the matter in the favour of one of the parties, however, after hearing both the parties and strictly adhering to all the procedures when it comes to deliberating a valid judgement and the judgement does not fall under the ambit of the exceptions provided under Section 13 then it can be regarded as a conclusive judgement. Again, if at all, a dispute arises between those two parties in India and one of the parties produces the certified copy of the judgement or the decree then the court will see to it whether the certified copy of the judgement or the decree is genuine or not, under the provisions of Section 86 of the Indian Evidence Act, 1872.5 After raising the presumption of the court, the burden to prove that the judgement or the decree passed by the foreign court is not conclusive falls upon the party who raised the

presumption with regards to the fact that the judgement is not conclusive and cannot be adjudicated upon. This simply means that they have to prove that the judgement suffers from the vice of the exceptions provided under Section 13 of the Code. The judgement then shall be rendered non-conclusive, however, the judgement shall still be relevant and admissible in the Court of Law.

Section 13 prescribes the following, “A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

a) Where it has not been pronounced by a court of competent jurisdiction;

b) Where it has not been given on the merits of the case;

c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

d) Where the proceedings in which the judgement was obtained are opposed to the principles of natural justice;

e) Where it had been obtained by fraud;

f) Where it sustains a claim founded on a breach of any law in force in India.6

The keywords to be noted here are, “same parties” and “under the same title.” Hence, from the above explanation of Section 13 of the Code of Civil Procedure, it can be concluded that if it is proved that a particular matter which has been brought up for adjudication before a court in India decided by a foreign court, falls within the ambit of any one of the exceptions which are provided under Section 13, then the said judgement would not be conclusive. Apart from these six exceptions, it also needs to comply with the laws of limitation. The period of limitation which is guaranteed to an individual to seek redress before a District court or a High Court with regards to a foreign judgement or decree is three years under the provisions of Section 101 of the Limitation Act, 1963, which clearly states that, “upon a judgement, including a foreign judgement, or a recognisance, the period of limitation is three years from the date of the judgement or recognisance.7” This simply means that the party who believes that the Superior court abroad has not dealt with the matter effectively and believes that justice has not been rendered to him/her, can approach a District or a High Court in India within a span of three years from the date when the judgement or the decree was passed by the competent foreign court to get the matter adjudicated as the decree or the judgement then falls under the scanner

of Section 13 of the Code. However, this is in case of a foreign court judgement or a decree passed in a non-reciprocating territory. The period of limitation as prescribed by the Limitation Act, 1963 to approach a court with respect to a foreign judgement or decree, in the case of a judgement or a decree passed by a reciprocating territory is twelve years from the date on which the judgement or the decree was passed.

Furthermore, the rules laid down in Section 13 of the Code of Civil Procedure are rules of substantive law and not merely of procedural law.8 If a violation of any order passed by a Civil Court is made, on the grounds of the issuing of a red corner notice, the Court shall then look into the matter as to whether the same has undergone the tests or doesn’t fall beyond the exceptions of Section 13 and 44A of the Code.9

3. A foreign judgement, when it is not conclusive, i.e. it cannot be applicable in India.

A foreign judgement, before it can be deemed to be conclusive, needs to show that there is a valid cause of action for which the suit is being instituted upon it in India and can be adjudicated upon. It must be evident that the court which pronounced the same, followed the six conditions which are prescribed under Section 13 of the Code. However, if a judgement does abide by any of the six exceptions which are provided under Section 13 of the Code, then it can simply be deemed that the judgement upon which a suit is instituted is simply not conclusive. In considering whether a judgement of a foreign court is conclusive, the courts in India will not check whether the conclusions which are recorded thereby are supported by the evidence or are otherwise correct, it will simply check whether the judgement was passed keeping in mind the six conditions which are laid down under Section 13 of the Code.10 The basis on which the applicability of a foreign judgement in India depends, is that the judgement should impose an obligation upon the defendant. There needs to be a clear nexus between the defendant and the applicability of the judgement which needs to be apparent on the face of it and should be sufficiently close to make it the duty of the defendant to fulfil or perform his obligation.11

In a nutshell, irrespective of whether a judgement is passed by a reciprocating territory or by a non-reciprocating territory, it should not fall under the exceptions which are provided under Section 13 of the Code, however, if it falls within the ambit of the exceptions provided under Section 13 then the said judgement will not be deemed to be regarded as a conclusive one as

any matter thereby adjudicated upon, will be open to collateral attacks on the grounds as provided under the provisions in Section 13.12

4. Conditions that can deem a foreign judgement to be regarded as conclusive:

A foreign judgement can be deemed to be conclusive based on the six conditions which are provided under the provisions of Section 13, clauses (a) to (f) of the Code and they are as follows:

a) The Court which decided upon the case, should be a court of competent jurisdiction: Clause (a) provides that a judgement delivered by a foreign court will not be deemed to be conclusive if the court which decided upon the case was not a competent court. To check whether a foreign court is of a competent jurisdiction within the provisions of this section, it needs to be pondered upon as to whether it is in accordance with the provisions of International Law. An award made in New York was confirmed by the Supreme Court of New York. Thereafter, a suit to enforce the award or the judgement was filed in the Bombay High Court. It was not maintainable as firstly, the suit was based on a judgement which was delivered in New York and the cause of action must be said to have arisen at that place beyond the jurisdiction of the Bombay High Court. Secondly, the award, according to the laws in New York was not final and enforceable and therefore, it could not furnish a cause of action in India13. In the field of private international law, the courts can out rightly refuse to adhere to a rule of foreign law or recognize a foreign judgement or a foreign arbitral award if it is found that the same is contrary to the public policy of the country in which it is deemed to be applied or executed14. A decree by a foreign court against a defendant in absentem is also valid and can be applied in the country of the court by which it was delivered, when it is authorized by special legislation15.

b) The judgement should be delivered on its merits. Now, clause (b) of Section 13 of the Code emphasises on the fact that when a judgement which is challenged by instituting a proceeding against it in India, it should be delivered on its merits, i.e. for a foreign judgement to be conclusive and applicable in the courts of India, it should be heard and decided after properly hearing both the parties to the case and only then shall it be deemed to be conclusive under the provisions of Section 13 of the Code.

In this case, solely shall it operate as res judicata. Section 11 of the Code, 190816 provides for the rule of res judicata or the rule of conclusiveness of a judgement, as to the points decided either of facts or of law, or of facts and law, in every subsequent matters that arise between the same parties. It states that once a matter is finally decided upon by a competent court, no party can be allowed to reopen the same matter in a subsequent suit. The doctrine of, “res judicata” has been explained by Justice Das Gupta in the case of, Satyadhyan Ghosal v. Deorjin Deb17 as, “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter, whether on a question of fact or a question of law, has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.”

The principle of res judicata explains that a judgement which is deliberated and argued upon, cannot be adjudged or adjudicated again. However, the judgement can be deliberated or executed again, if an appeal is taken to a higher court or if they appeal was dismissed way before. Basically, the crux of the principle of res judicata is that a judgement cannot be enforced again once a decision has been made on it by a competent court, until and unless there arises a need wherein the ends of justice have not been met. In such a case, the aggrieved party can again file an appeal and secure his/her justice.

The true test for determining the question as to whether the judgement has been delivered on the basis of its merits, is to see whether it has been given as a penalty for any conduct of the defendant or whether it is based on a consideration of the truth or otherwise of the appellant’s case.18

c) The Judgement, if passed by not correctly interpreting the International Law or it clearly failing to recognise the laws followed by the Indian Courts cannot be regarded as a conclusive judgement. Clause (c) of Section 13 of the Code states that a judgement cannot be deemed to be conclusive if at all it has been delivered by not correctly

interpreting the provisions of International Law or it has failed to recognise and correctly interpret the laws which are followed by the Indian Courts. In the case of Y.Narasimha v. Venkatlaxmi19, the husband and wife got married under the provisions of the Hindu Marriage Act, 1955 in India. However, the husband later filed a suit for divorce in the American Court, thereby misleading the court that even the wife resided in America, when the truth was that the wife was not a domicile of America and a result, the summons was not delivered to her and an ex-parte divorce was granted to the husband. It was held that, if the marriage was registered according to the provisions of the Hindu Marriage Act, 1955, then the divorce proceedings too should have been according to the provisions laid down under the Hindu Marriage Act. Plus, the marriage was registered in India, under the law which the Indian Courts follow, therefore the annulment of the marriage too should’ve been done according to the laws followed by the Indian Courts. It is because of this reason, the judgement was not said to be conclusive and fell under the clutches of the exceptions guaranteed under Section 13.

d) According to Clause (d) of the Section 13 of the Code, it states that a judgement cannot be deemed to be conclusive if at all it has been passed by not adhering to the principles of Natural Justice. The veracity of whether the judgement has been passed by keeping in mind the principles of natural justice will be checked by the court after a certified copy of the judgement or decree is filed before the court where the proceedings are instituted against it. Thus, a judgement which is passed by the court, simply in the favour of the plaintiff without giving a notice regarding the same to the defendant or without giving the defendant a reasonable opportunity to present his case is contrary to the principles of natural justice. Also, if a judge has any vested interest in the subject matter of the case over which he or she is presiding, then it would clearly vitiate the proceedings on the grounds of principles of natural justice. The onus, however, would be on the party setting up the case of bias by proving the same by cogent evidence.20

e) The judgement when obtained by fraud, is clearly not conclusive, which is what Clause (e) of Section 13 provides. Fraud invalidating a foreign judgement may be either a fraud on the part of the party in whose favour the judgement was delivered or on the part of the court which pronounces the judgement. This simply means that the judgement was a result of a fraud that was committed by either of the parties to the suit. A fraud could be committed by simply twisting or misrepresenting the facts or misleading the court in any way. For example, a plaintiff files a suit in a foreign court and at the time of

filing the suit, he/she makes sure that the court believes that the defendant too, is a domicile of the country where the suit is filed, but the truth could be that the defendant, as a matter of fact, is not a domicile of that particular country. This could lead to a judgement being deliberated and pronounced in a fraudulent manner, as the summons wouldn’t be served to the defendant to appear before the court and present his case and the judgement would therefore be an ex parte judgement in the favour of the Plaintiff.

f) The judgement which is founded on a breach of any law in force in India is by all means not conclusive as provided under Clause (f) of Section 13 of the Code of Civil Procedure. Thus, a foreign judgement with regards to a gambling debt cannot certainly be applied in Indian Courts. However, a foreign judgement on a claim which is barred according to the Indian Law cannot be said to be based upon the violation of any Indian Laws in force.

5. How can a foreign judgement be applied?

Where a foreign judgement is deemed to be applicable or enforced in execution under the provisions of Sections 44 and 44A, it will be open to the judgement-debtor to raise all sorts of objections which would have been open to him under Section 13, if the proceedings were to be initiated on the judgement21. The ‘comity of courts’ principle ensures that foreign judgements and orders are unconditionally conclusive of the matter in controversy. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty-bound to examine a matter independently taking the foreign judgements, if any, as an input for its final adjudication22.

6. Section 44A of the Code of Civil Procedure

Section 44A of the Code of Civil Procedure, 1908, provides for the execution of decrees passed by the Courts in reciprocating territories. Reciprocating territories, as explained above are those countries or territories which are not within the territorial boundaries of India. However, they have been deemed to be equal or at par with our country and therefore, their courts are also declared to superior competent court and judgements passed by such courts can be very well applied in the Indian courts, however, certain exceptions need to kept in mind, which as explained above, falls under the ambit and scope of Section 13. The competent court for the execution of judgements and decrees is the District Court with jurisdiction to entertain the

matter in dispute, or a High Court. A High Court can deal with such cases through its ordinary civil jurisdiction.

There is a clear lawful difference between the recognition and enforcement of a foreign judgement. This differentiation has been provided under Section 13 of the Code and the criterion provided for the same thereunder is the pre-condition to any enforcement proceedings. For executing a suit against a judgement in India, the foreign judgement needs to be complacent with the rules which emanate from Section 13 of the Code, those six rules need to be specially followed if a proceeding is to be instituted against a judgement in India, either in the District Court or in the High Court. There are a lot of judgements and decrees that may fall very well within the scope of the guidelines provided under Section 13 of the Code, however, not all types of judgements or decrees are deemed to be applicable. Courts in India have contended that interlocutory orders on monetary judgements, costs, jurisdiction, mandatory injunctions, divorce decrees, and anti-suit injunctions are all applicable to be challenged in the courts in India. However, the courts have also provided that ex-parte decisions cannot be enforceable per se. However, in the case where the judgement is based on its merits, has been decided by a competent court, the provisions of International Law are adhered to, as well as correctly keeping track of Indian laws and it has been passed while also giving the defendant an adequate opportunity to present his case, in such a scenario an ex-parte decision will be enforced.

Lastly, Section 44A provides a list of requirements which need to be met for the enforcement of foreign judgements and decrees from reciprocating as well as non-reciprocating territories and they are as follows:

1) “Where a certified copy of a decree of any of the Superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.

2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse any such execution of any such decree, if it is shown to

the satisfaction of the court that the decree falls within any of the exceptions which are specified under clauses (a) to (f) of Section 13.23

As explained above, a certified copy of the decree or the judgement of any of the Superior Courts of any reciprocating territories needs to be attached and filed in the courts in India, in order to ensure that the courts in India adjudicate it. The first provision of Section 44A, explains that when a certified copy of a decree or a judgement, which is passed by the Superior Courts of any reciprocating territories is presented before any District or High Court in India, the same shall be deemed to be treated as if it was passed in India itself, however, apart from that a certificate shall also be provided to the District or the High Court which should be issued by a Superior court of the reciprocating territory which clearly states the extent to which the decree or the judgement has been satisfied. Lastly, what the provisions of Section 44A provide is that apart from all of these conditions, it is very important to adhere to the six exceptions which are provided under Section 13 of the Code of Civil Procedure, 1908. It could be said that, these six conditions are the major deciding factor as to whether the decree or the judgement of any of the Superior courts of any reciprocating territory can be adjudicated in India or not. The six exceptions ranging from clauses (a) to (f) of Section 13 are the most important exceptions. If a judgement falls under the ambit of any of these exceptions, then that judgement cannot be executed. For a judgement to be executed in the Indian Courts, it needs to be free from the vices provided under Section 13, clauses (a) to (f).

7) Solution

One can see that; the plaintiff has to resort to the Indian Courts to either get the foreign judgement executed under Section 44A or needs to file a fresh suit upon the judgement for its applicability in India. Therefore, by getting a decree or a judgement delivered by a foreign court, the plaintiff simply tends to avoid the hassles of leading evidence in the Indian Courts, however runs a very, very high risk on account of the exceptions guaranteed under Section 13 of the Code. Therefore, Foreign Judgements can certainly be applicable in India, provided it does not fall under the exceptions prescribed under the provisions of Section 13 and the provisions of Section 44A of the Code. However, what is advisable for an Indian plaintiff is that he/she should probably institute a proceeding against the defendant in the Indian Courts itself if the defendant too is an Indian. International Courts usually demand for more documentary evidence and that may not be very convenient.

8. Conclusion

A lot of times, disputes tend to arise between Indian Parties in an International Matters or over a range of other transactions. The parties to the dispute, however, have an option of bringing the suit in the concerned foreign country where the matter has taken place and then applying for a suit and instituting proceedings on the judgement which is passed with regards to that dispute. The parties, however, have to wait if they decide to enforce a proceeding against the judgement which is passed by a competent court, however, the Limitation period which is prescribed provides the parties ample amount of time, as a proceeding could be instituted against a judgement passed by a reciprocating territory court within twelve years from the date on which the judgement or decree was passed. In a nutshell, foreign judgements are certainly applicable in India, however, if both the parties to the case are Indians, then it is better if they resort to seek justice from Indian Courts instead of falling under the clutches of Section 13 of the Code of Civil Procedure.

Author: Dev Tejnani Legal Intern at Legal Desire (June 2020)

Student currently pursuing the Five year integrated law degree from the University of Mumbai. Firmly believes that luck is not an important factor, but hardwork is. Keep working hard to achieve what you want.

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