ALTERNATIVE DISPUTE RESOLUTION GROWING IN INDIA

UNCLAS SECTION 01 OF 05 MUMBAI 000042 SENSITIVE SIPDIS DESK -- PLEASE PASS TO USTR E.O. 12958: N/A TAGS: PGOV BTIO ECON EINV KDEM KIDE KJUS ETRD IN SUBJECT: ALTERNATIVE DISPUTE RESOLUTION GROWING IN INDIA REF: 09 MUMBAI 431 MUMBAI 00000042 001.2 OF 005 ¶1. (SBU) Summary. With the majority of civil litigation cases taking over a decade to resolve through the Indian courts, businesses in Mumbai increasingly pursue alternative means for resolving contractual difference quickly and cheaply. The business community has devised Alternative Dispute Resolution (ADR) mechanisms outside the courts, including arbitration, mediation, and community-based dispute resolution. International firms, however, still prefer foreign venues rather than India. Arbitration is not a complete panacea, however, as parties and even the arbitrators can delay the process for financial gain. End Summary. Delay in Commercial Litigation Weighs on Businesses -------------- -------------- ¶2. (SBU) The Indian courts are overburdened and underfunded and litigation often takes a decade or more to conclude (see reftel A). Judicial delays harm business development, create uncertainty, and tie up capital that might otherwise be used productively. For the average plaintiff, the dread of a long, expensive legal battle gives defendants leverage to force an advantageous settlement, Attorney Zulfiquar Memon noted. Those who can afford the best attorneys may be able to push their cases through the system in three to five years, according to attorneys Congenoff spoke with, but Attorney Zia Mody, a partner in the firm AZB & Partners, noted that many cases languish in the courts once a party has secured an interim order freezing assets. (Note: This is similar to a temporary restraining order or preliminary injunction in the U.S. End Note.) Abhi Abhimanyu, the General Counsel of DSP Merrill Lynch, and other lawyers told Congenoffs that parties may become amenable to settlement once an interim order freezes their assets, but many face protracted litigation with no resolution for years. ¶3. (U) The legal framework in India is partially to blame for the lack of swift resolution of cases. Mumbai High Court Judge Roshan Dalvi explained that court rules in India do not have procedures for accelerated judgment in civil cases which would enable a judge to swiftly determine a matter. (Note: In contrast, the U.S. legal system has "judgment on the pleadings" -- a determination at the outset of a case that, as framed, the pleadings do not state a legal cause of action -- or "summary judgment" -- a decision reached by the court without trial where facts are undisputed. End Note.) Although Union Law Minister Veerappa Moily has proposed such mechanisms to expedite judicial resolution (ref A),Dalvi said she does not see accelerated judgment gaining acceptance among the judges any time soon because they are reluctant to declare a winner and a loser, preferring that the parties reach a settlement on their own where possible. The Law Commission of India similarly noted in its November 2008 report looking at the burgeoning problem of dishonored check cases, that "Litigation as a method of dispute resolution leads to a win-lose situation leading to growth of animosity between parties, which is not congenial for a peaceful society." India Turns to Out-of-Court Processes for Dispute Resolution -------------- -------------- ¶4. (SBU) To grapple with judicial delays, civil society in India resorts to creative solutions ranging from progressive forums, such as formal arbitration, to archaic "time-honored" means, such as private debt collectors and village councils, to resolve disputes. In India, "private debt collectors" are widely used to obtain payment on behalf of lenders or vendors. Debt collectors charge a fee of 20-30 percent of the amount collected, and often obtain payment by threatening the debtor or the debtor's family. Civil Rights attorney Yogesh Kamdar said that the construction industry is most noted for using such MUMBAI 00000042 002.2 OF 005 "strong-arm" tactics as they have so much invested in a single project that non-payment by a debtor could put them out of business. ¶5. (U) In India, the practice of informal dispute resolution is not new; rural villagers have long taken their disputes to the village council, known as the "panchayat," rather than seek justice in far away courts with procedures too complex for the common man. The central government's Ministry of Law and Justice is formalizing this system by establishing Gram Nyayalaya, or village tribunals, to provide a cost-effective, grassroots level forum for settling disputes. In small towns and cities, "Lok Adalats" or "People's Courts" address consumer complaints and public grievances, similar to the panchayat format. The Lok Adalat is comprised of three members who meet once a month. Cases pending in court can be transferred to the Lok Adalat, if both parties agree, and results in a binding an enforceable award. Prathamesh Popat, an attorney who also serves as an arbitrator and mediator with the Indian Merchants Chamber of Commerce (IMCC),said that disputes between government-owned companies are often taken directly to the Lok Adalat and courts can transfer cases to the Lok Adalat for informal resolution. Popat noted that the government is the biggest litigant in India and is named in 60 percent of the cases filed in court, mostly disputes between governmental agencies or government-owned enterprises. According to Popat, the government officers involved in inter-agency litigation feel compelled to reach a compromise before the Lok Adalat as it is chaired by a retired judge or other highly-respected person. Union Law Minister V. Moily recommends that all intra-governmental disputes be submitted to an administrative tribunal instead of to the courts as a major step to reducing the back log in the courts. Alternative Dispute Resolution Taking Hold in India -------------- -------------- ¶6. (U) Successful businesses with professional management largely prefer to use alternative dispute resolution methods (ADR) rather than litigate in court. India formalized ADR in the 1996 Arbitration and Conciliation Act (ACA),which provides the over-arching structure for various ADR mechanisms. The Act follows the Model for Commercial Arbitration drafted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985. According to the Act, a case may be subject to arbitration, rather than litigation in a court, based upon a contract signed by the parties before or after the dispute arose. Under the ACA, the parties choose their own arbitrators, either Indian or foreign nationals. The arbitrators may use mediation or conciliation techniques to get the parties to come to an agreement, if not precluded by the parties' agreement. The ACA also authorizes the arbitrator(s) to award costs, including attorneys' fees, and the costs of the arbitrators and expert witness fees as part of its determination of the matter. Costs incurred for renting a private venue are normally shared by the parties, according to Memon. Popat, who heads the IMCC's arbitration forum, suggests that all commercial contracts should have a clause for ADR to prevent the courts from being clogged with commercial disputes. Ad Hoc and Institutional ADR forums -------------- ¶7. (U) Arbitration can be arranged ad hoc by the parties or through institutions which provide the forum and arbitrators. The most common mechanism for ADR among Indian commercial litigants is ad hoc arbitration, where each party selects an arbitrator and the two designees pick a third, trusted person to MUMBAI 00000042 003.2 OF 005 complete the panel of arbitrators to hear the case. Retired High Court judges, seen as experienced and neutral, are often selected as arbitrators; they also command top fees, according to observers. However, Popat noted that ad hoc arbitration is often time consuming and costly because sessions are scheduled for just a couple of hours each day, prolonging the case and increasing lawyers and arbitrator's fees. In contrast, institutional arbitration has defined rules in place, fees are lower and the arbitrators can be "reigned in" by the institution, he argued. Popat, however, acknowledged that institutional arbitration is rare, as it requires the consent of both parties or the institution has to be specifically named in the parties' contract. For these reasons, legal experts explained, most Indian attorneys prefer ad hoc arbitration, selecting their own arbitrators, rather than submitting the dispute to an institutional arbitration forum where they would be limited in the choice of arbitrators and lose some autonomy over the pace of the case. ¶8. (U) Nonetheless, the number of institutions offering dispute resolution services is growing: --The Indian Merchants Chamber of Commerce (IMCC) has hosted an arbitration forum since 1985, offering a panel of legal and technical experts as arbitrators and several meeting rooms that can be used for arbitration. Popat noted that in using an institutional forum like the IMCC, the parties know the fees will be fixed, motivating arbitrators to move the case to conclusion quickly, as opposed to private arrangements where the arbitrators are paid hourly or daily fees. The IMCC claims that none of its arbitration awards have been challenged in court. However, statistics provided by IMCC indicate they have hosted only 50 arbitrations in the past 5 years and Popat acknowledged that the recent law making issuing a bad check a criminal offense has significantly reduced demand for IMCC's ADR services. (Note: A special fast-track court is being established in Mumbai to handle dishonored check cases to resolve them quickly. End Note). The IMCC is working on a memorandum of understanding to become the venue of choice for disputes among members of the textile industry's professional association. --The Indian Council of Arbitration (ICA) provides a private forum for dispute resolution, either in New Delhi or in its regional offices in Mumbai, Kolkata or Chennai. The ICA has assembled a panel of arbitrators including attorneys, retired judges, accountants, engineers and other experts whose knowledge may be critical to resolving technical disputes. The ICA also provides the venues for the hearings, which can be costly in privately-arranged arbitrations. According to the ICA website, the Union Ministry of Commerce recommended ICA as the venue of choice in all government contracts for public works in 1999 and from time to time continues to recommend the ICA forum. --The Singapore International Arbitration Center (specializing in construction litigation) allows the parties to choose their own venue, with SIAC providing the arbitrators, or the hearings may be conducted SIAC's offices in Singapore. Popat said international construction firms prefer to use the SIAC because of its specialization in a technical field and it is trusted as a neutral forum. -- Popat also explained that trade associations in India, such as the Clothing Manufacturers Association and the Grain Association, have their own informal arbitration forums which resolve disputes in five days. Small Religious Communities Offer Dispute Resolution Services MUMBAI 00000042 004.2 OF 005 -------------- -------------- ¶9. (U) The high cost of litigation has led some communities to develop ADR alternatives for their members. Sects within the Ismaili Shia community in Mumbai - mostly Dawoodi Bohras and followers of the Aga Khan known for their business acumen-- have internal ADR mechanisms. According to Saifee Surka, a Bohra scholar, Bohras can submit disputes between members to the community's leader, Syedna Mohammad Burhanuddin, in an informal forum, upon which he will make a binding determination. The Aga Khans established the Regional Conciliation and Arbitration Board (RCAB) and the appellate forum, the National Conciliation and Arbitration Boards (NCAB). According to Aga Khan member Firdoshali Kassam Karachi, a Mumbai attorney in private practice, "more than 12,000 cases relating to matrimonial, commercial, property and partnership disputes have been resolved through the process of conciliation, mediation or arbitration at the RCAB and NCAB level in India since 1988." Karachi said the Aga Khans use a negotiated settlement approach based upon a reading of the Quran in which Mohammed proclaimed that those who seek peace will find a solution to their disputes. Both dispute resolution mechanisms are available to the adherents of the faith without charge, without the need for lawyers, and with a relatively short turnaround of a few months, according to members of each sect. ADR Cannot Save Litigants from Obstinate Parties -------------- --- ¶10. (U) ADR is not a complete panacea to avoid delays inherent in the Indian judicial system. Several attorneys have warned that attorneys, or even the arbitrators, can prolong arbitration hearings to earn higher fees and a party who stands to lose the case may delay resolution to avoid payment. Where one of the parties refuses to name an arbitrator, the courts may intervene to order parties to comply with their arbitration agreement. Indian courts may also intercede to determine the initial question of whether a dispute is subject to arbitration, or the jurisdiction for the arbitration, if disputed. Poorvi Chothani, founder and managing member of LawQuest, a Mumbai-based general practice firm, said that even though a contract's Arbitration Clause states that foreign law applies, Indian courts will apply Indian procedural rules unless the contract specifically states otherwise. ¶11. (U) While generally enthusiastic about ADR for their business clients, attorneys complained that the arbitration awards can be appealed in court, which can delay final resolution of the matter for years. Another shortcoming of arbitration, critics argue, is that if the losing party refuses to abide by the decision of the arbitrators, enforcing the award through the court could delay recovery for years. (Note: In the U.S., enforcement of a judgment against a recalcitrant defendant is normally an expedited process which can be completed in less than six months. End Note.) Arbitration is, therefore, a useful tool only among those who will abide by the arbitrators' decision, attorneys noted. Attorneys told Congenoff that they often advise companies to obtain business interruption insurance - and hope that the insurance companies pay if business is disrupted. International Firms Prefer Foreign Venue -------------- ¶12. (SBU) To avoid the delays inherent in the Indian judicial MUMBAI 00000042 005.2 OF 005 system, most international corporations insist that every contract they sign provide for arbitration in a foreign venue, according to Krishan Singhania, who represents multi-national clients such as Federal Express. While onerous to Indian businesses that have no presence in the foreign locale, the international companies are reluctant to be subject to the Indian judicial system with its inordinate delays and reputation for corruption. Whether the foreign venue clause is ultimately enforceable depends upon how well the contract is drafted, Singhania said. Comment -------------- ¶13. (SBU) In the face of long delays in resolving commercial disputes, Mumbai-based businesses and entrepreneurs have developed creative solutions to avoid the courts. While India has a burgeoning customer base that entrepreneurs want to access, it remains a commercial environment fraught with potential pitfalls that investors and businesses need to consider. Mandatory arbitration clauses and the availability of international forums for ADR have made doing business in India more feasible. India's efforts to tackle the problems of overloaded courts and corruption within the judiciary will further improve the business climate, but it is unclear when these objectives will materialize. FOLMSBEE