Cameron Miranda
India is a part of the global economy and its courts have considered transnational litigation and arbitration. Indian courts apply common law and favour the principle of comity, which is the respect granted by local or domestic courts to the exercise of jurisdiction by foreign courts. Common law is a legal principle known as stare decisis, which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. The benefits of common law include stability, consistency, efficiency, and adaptability to the unforeseen. However, it is not the only type of legal system used today, as many countries use the civil law system, which centres around a comprehensive code of statutes that outline procedures and punishments.
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What You'll Learn
Pros and cons of common law
India applies common law and favours the principle of comity in transnational litigation and arbitration. This means that Indian courts respect the exercise of jurisdiction by foreign courts and are reluctant to interfere if a foreign court has jurisdiction.
Pros
Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. It is also efficient, as judges only need to follow precedent, making court proceedings shorter and saving time and money. Common law is flexible and adaptable to unforeseen situations, as higher courts can overrule prior decisions without waiting for lawmakers to act. It can respond to changes in society, and courts can address situations not originally predicted or legislated for.
Cons
One disadvantage of common law is the lack of a binding contract. In a common-law marriage or committed intimate relationship, there is no legal framework outlining intentions and what happens if the relationship dissolves. This can make ending the relationship more difficult than a traditional divorce. Additionally, individuals in a common-law relationship do not have the right to make medical decisions for each other unless specified in a medical directive. This is an important consideration, as it affects what happens to a partner during a medical emergency.
The civil law system, which originated in mainland Europe, provides a comprehensive code of statutes that outline procedures and punishments. It offers clear rules for judges to follow in specific disputes, whereas common law relies on precedent and previous case law, which can be time-consuming to find.
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Transnational litigation and arbitration
India is a part of the global economy and its courts have considered transnational litigation and arbitration issues in many cases. Indian courts apply common law and favour the principle of comity, which is the respect granted by local or domestic courts to the exercise of jurisdiction by foreign courts. If a foreign court has jurisdiction, Indian courts are reluctant to interfere.
Indian courts have jurisdiction over proceedings pending in foreign jurisdictions, including awards made under the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) and awards made under the Convention on the Execution of Foreign Arbitral Awards 1927 (Geneva Convention). In appropriate cases, Indian courts can pass anti-suit and anti-arbitration injunctions, ordering a party not to proceed in a suit pending before a foreign court or restraining it from proceeding with arbitration.
The 1996 Act and related Supreme Court case law govern the jurisdiction of Indian courts in relation to international commercial arbitrations. A three-judge bench of the Supreme Court held that Part I of the 1996 Act, which applies to arbitrations if the place of arbitration is India, also applies to arbitrations held outside India.
Transnational litigation, arbitration, and dispute resolution encompass substantive and procedural aspects of public and private transnational and international dispute resolution in a range of settings, from national courts to ad hoc arbitral tribunals to permanent international courts and tribunals. It includes topics such as forum non conveniens, choice of law, enforcement of judgments, and cross-border evidentiary issues.
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Quasi-judicial tribunals
India applies common law and respects the principle of comity, which involves the domestic courts' respect for the jurisdiction of foreign courts. However, there are exceptions to this pattern, such as anti-suit and anti-arbitration injunctions. In such cases, Indian courts can pass orders to prevent a party from proceeding with a suit in a foreign court or restrain them from arbitration.
In India, there are various quasi-judicial tribunals, which are non-judicial bodies that can interpret law. Quasi-judicial bodies are conducted by administrative or executive officials or organisations. They are not part of the judicial branch of the government but are given powers and procedures that resemble those of a court of law or judge. They are obliged to objectively determine facts and draw conclusions to provide the basis for official action. These bodies usually have powers of adjudication in matters within their specific areas of expertise, such as financial markets, employment laws, public standards, and regulations. For example, the Company Law Appellate Tribunal decides cases regarding corporate companies.
Quasi-judicial bodies can make relevant factual determinations based on the evidence presented at a hearing. They can apply the law to these facts and make decisions regarding the legal rights, duties, or privileges of the involved parties. They can issue orders or decisions with legal force, such as requiring a party to pay damages or comply with certain conditions. These bodies can also enforce their decisions, such as by imposing fines or other penalties for non-compliance.
The decisions of quasi-judicial bodies are often made after a quasi-judicial proceeding, which may resemble a court. However, there are key differences between judicial and quasi-judicial bodies. Judicial decisions are bound by precedent in common law, whereas quasi-judicial decisions are not. In the absence of precedent in common law, judicial decisions may create new laws, but quasi-judicial decisions must be based on existing laws. Quasi-judicial bodies also do not always follow strict judicial rules of evidence and procedure.
Some examples of quasi-judicial tribunals in India include the Central Administrative Tribunal, the Railway Claims Tribunal, the Armed Forces Tribunal, and the National Human Rights Commission.
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Common law's flexibility
India applies common law in transnational cases and favours the principle of comity, which is the respect granted by local or domestic courts to the exercise of jurisdiction by foreign courts. In such cases, Indian courts are reluctant to interfere and tend to direct parties to the foreign court with jurisdiction.
Common law is flexible because it can respond to changes in society. It is crafted by the judiciary and evolves through court rulings and interpretations, allowing judges to shape the law by interpreting how it applies to specific cases. This means that common law can respond to situations that were not foreseen or anticipated by legislators. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be time-consuming and may never happen. In common law, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law rather than on subjective, personal viewpoints. It also provides efficiency, as judges need only follow precedent when making decisions, making court proceedings shorter and saving time and money.
However, some critics argue that common law is slow and reactive rather than proactive. Since judges are appointed by the court system rather than elected, they may be unaccountable to the people and make decisions inconsistent with community standards and values. Common law is also vulnerable to a lack of review, as courts lack the personnel, time, resources, and opportunity to fully consider the changes they make to common law.
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Common law and civil law differences
India applies common law and favours the principle of comity, which involves respecting the jurisdiction of foreign courts. However, Indian courts can pass anti-suit and anti-arbitration injunctions if deemed necessary or expedient.
Common law and civil law are the two main legal systems used throughout the world. Common law is based on the legal principle of stare decisis, which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. This promotes stability and consistency in the legal system. It also allows for adaptability and efficiency, as judges only need to follow precedent when making decisions. Common law is used in many countries that were formerly under English rule, including the United States (except Louisiana).
On the other hand, civil law, which originated in mainland Europe, is based on a comprehensive code of statutes that outlines procedures and punishments. Civil law systems provide clear rules for judges to follow when ruling on specific disputes. Unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar. Civil law is prevalent in most continental European countries and some other regions.
One key difference between the two systems is their approach to judicial precedent. Common law systems give significant weight to judicial precedent, with decisions from higher courts typically binding on lower courts. In contrast, civil law systems do not rely on judicial precedent, and prior court decisions are not considered binding. Instead, civil law is based on legal codes drafted by legislators, and courts are required to follow these codes.
Another distinction lies in their flexibility. Common law is more flexible as it can respond to societal changes without requiring lawmakers to pass changes in statutes. Higher courts in common law systems can overrule prior decisions, whereas civil law systems may take longer to implement changes as they depend on legislators to modify the legal codes.
In terms of infrastructure projects, certain concepts like concessions and affermage have definite meanings in civil law jurisdictions that may not apply in common law countries. Additionally, civil law countries often have a separate administrative law governing PPP arrangements, while common law systems offer greater flexibility in granting different types of security over assets.
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Frequently asked questions
Yes, India applies common law and adheres to the principle of comity, which is the respect granted by local or domestic courts to the jurisdiction of foreign courts.
Common law is a legal principle known as stare decisis, which means that judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases later. Common law promotes stability and consistency, as well as efficiency, adaptability, and flexibility.
Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outline procedures and punishments. Unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar.
Many countries use common law legal systems, including the United States (except Louisiana, which is a civil law state based on the French civil code).
