Cross-border business
disputes involving India.

The Indian legal system — a note for foreign parties

Complex commercial litigation before the Indian courts can be a challenging experience for foreign parties. The reasons most commonly identified are the perceived limitations on India's judicial resources, the unfamiliar civil procedure, and the different judicial priorities that apply in Indian courts compared with the courts of the parties' home jurisdictions.

Two consequences follow:

• Judgments of foreign courts are not always enforceable in India.
• Awards of international arbitral panels are not always enforceable in India either — although the position is considerably stronger for arbitral awards under the New York Convention than it is for foreign court judgments.

Even a party who wins its case overseas may therefore find itself obliged to commence fresh proceedings in India in order to obtain relief. The litigation in India is not a formality — it is often the substantive battleground.

Choice of forum — and its limits

Cross-border transaction documents commonly contain a choice-of-forum clause. The clause vests jurisdiction over disputes in a specified court, and is often accompanied by consent to personal jurisdiction, agreement on service of process, and waiver of any objection to convenience or venue.

That approach is not always effective in Indian cross-border deals. Indian courts do not necessarily regard themselves as bound by a choice-of-forum clause. Where a disgruntled counterparty brings its own suit before an Indian court, the Indian court may permit that suit to proceed — even where the contract prohibits it.

A separate problem arises at the enforcement stage. India has agreed to recognise and enforce the judgments of the courts of only a small number of foreign countries. The list includes the United Kingdom, Hong Kong, and Singapore, and excludes — among others — Argentina, Australia, Brazil, France, Germany, and the United States. Unless the successful litigant can obtain its relief wholly outside India, it must file a new action in the Indian courts in order to enforce the judgment.

What this means for drafting

Because the practical outcome depends more on where enforcement will happen than on where the dispute is formally heard, the most useful work is done at the drafting stage. Our approach is to design the dispute resolution clause around the enforcement position — not around the parties' assumptions about which court is best.

Key questions we work through with clients before the contract is signed:

• Where are the assets located — and where are they likely to be located at the time of enforcement?
• Is the counterparty's jurisdiction one whose judgments are recognisable in India, or one whose judgments are not?
• Would arbitration produce a more enforceable outcome than litigation — and if so, where should the seat be, and what institutional rules should apply?
• What interim relief may be needed, and in which jurisdiction?
• Are there sector-specific rules that limit the parties' freedom to choose the seat, the governing law, or the dispute resolution mechanism?

Our cross-border commercial disputes work

We advise and act for foreign companies, Indian counterparties, and international law firms on commercial disputes with an Indian element. Our work typically covers:

• Drafting and reviewing dispute resolution clauses in cross-border contracts — including choice of forum, choice of law, arbitration agreements, and interim relief provisions.
• Commencing and defending proceedings in the Indian courts on cross-border commercial matters.
• Enforcement of foreign judgments in India, where the judgment originates from a reciprocating territory.
• Challenges to, and enforcement of, foreign arbitral awards under the Arbitration and Conciliation Act, 1996, and the New York Convention.
• Interim measures — including injunctions, attachment before judgment, and other urgent relief — where the counterparty's assets are in India.
• Anti-suit and anti-arbitration relief where parallel proceedings are on foot in another jurisdiction.
• Coordination with foreign counsel where a dispute spans multiple jurisdictions, so that the strategy in India and abroad is consistent.
• Recovery proceedings against the Indian assets of defaulting counterparties.

Working alongside foreign counsel

Most cross-border business disputes with an Indian element are handled jointly. Foreign counsel leads on the transaction, the contract, and any proceedings in their own jurisdiction; we lead on the Indian side — the enforcement position, the Indian proceedings, and any interim relief against Indian assets.

We are accustomed to working to the timetable and disclosure requirements of foreign courts and tribunals, and to producing material in the form that foreign counsel expects.

How Kavao Law can assist

We act as the Indian-side counsel in cross-border commercial disputes. Our work typically includes:

• Advising at the contract-drafting stage on the choice of forum, choice of law, and dispute resolution provisions.
• Commencing and defending proceedings in the Indian courts on behalf of foreign and Indian clients.
• Filing and pursuing enforcement proceedings in respect of foreign judgments and arbitral awards.
• Applying for and resisting interim relief — injunctions, attachment, and other measures — against Indian assets.
• Coordinating with foreign counsel on multi-jurisdictional strategy.
• Advising on anti-suit relief where parallel proceedings are contemplated or already on foot.
• Advising on recovery against the Indian assets of a defaulting counterparty.

Note: The information on this page is provided for general understanding only. The correct approach to a cross-border commercial dispute depends on the facts, the applicable contract, and the position in each jurisdiction involved. We strongly recommend case-specific advice before taking any step in any jurisdiction.