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Enforcement of foreign arbitral awards in Indonesia

Indonesia ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 through Presidential Decree No. 34 on 5 August 1981. In addition, Indonesia also became the 27th member state in 1968 to ratify the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (1965) (ICSID Convention).

The Indonesian courts are not bound by judgments rendered by foreign courts. Nevertheless, in practice and under certain circumstances, the judgment of a foreign court can be used in an Indonesian court as supplementary documentation only (inconclusive evidence) on the matter that has been decided by the foreign court. A party that has obtained a favourable foreign judgment is still required to file a suit (relitigate) against its Indonesian counterpart before an Indonesian court in order to enforce the foreign judgment in an Indonesian jurisdiction. Therefore, if the dispute relates to an Indonesian party or the object is in Indonesian jurisdiction, the best option to settle the dispute is through Indonesian national courts. This is the key difference with arbitration: foreign arbitral awards can be recognised and enforced in an Indonesian jurisdiction.

In Indonesia, arbitration framework commenced with the enactment of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution dated 12 August 1999 (Arbitration Law). This legislation marked a significant milestone in the country’s legal landscape, providing a structured framework for the resolution of disputes through arbitration. With its enactment, Indonesia demonstrated its commitment to fostering a conducive environment for investment and business activities.

However, in spite of demand for revision of the Arbitration Law, on 17 October 2023, the Supreme Court of the Republic of Indonesia formulated Supreme Court Regulation No. 3 of 2023 on Procedures for Appointment of Arbitrators by the Court, Challenges against Arbitrator Appointments, Examination of Requests for Enforcement and Annulment of Arbitral Awards (SC Regulation No. 3/2023), which brings Indonesia closer to being an arbitration-friendly jurisdiction. With special attention on guidelines and the duration of procedures recognising and enforcing foreign arbitral awards in Indonesia, below are some key-points outlined under SC Regulation No. 3/2023.

Registration

Under the Arbitration Law, the enforcement of a foreign arbitral award can only be implemented after registering through the Central District Court of Jakarta (“CDCJ”). However, the Arbitration Law did not provide a deadline for the CDCJ to complete processes, resulting in lengthy registration and recognition times for foreign arbitral awards. Under the latest provisions in SC Regulation No. 3/2023, a foreign arbitral award is submitted and registered by the arbitrator or his proxy with the court registrar of the CDCJ, and this must be done by the court registrar within a period of 14 days after submission of the complete registration documents. This registration can be conducted electronically via the court’s electronic information system (SIP).

Exequatur

If one of the parties does not comply with the foreign arbitral award, either party has the option to request an exequatur from the chairman of the CDCJ. This request can be submitted electronically through the SIP.The CDCJ is to issue an exequatur or refuse to do so within 14 days after the submission of the exequatur request.

In the event that the request for exequatur is granted, the chairman of the CDCJ shall write the execution title on the original sheet and authentic copy of the foreign arbitral award. Furthermore, if the chairman of the CDCJ determines that the arbitration award falls outside the domain of commerce or violations against public policy (ketertiban umum), the chairman of the CDCJ can reject the request through a court ruling, with this ruling subject to an appeal to the Supreme Court (Kasasi).

Recognition and enforcement

Subsequently, the time limit for the CDCJ to rule on the recognition and enforcement of a foreign arbitral award is 30 days after the submission of a request.

This request can also be submitted electronically through the SIP. The SC Regulation No. 3/2023 emphasises that if the CDCJ recognises and enforces a foreign arbitral award, this ruling stands as final and binding, and there are no legal remedies available. However, if the CDCJ refuses to recognise and enforce the foreign arbitral award, this rejection can be subject to an appeal to the Supreme Court.

Public policy definition

In practice, the CDCJ, as the court having the jurisdiction to grant or otherwise the exequatur of a foreign arbitral award, has not always or automatically granted the decision on the exequatur.

The examination of the application of exequatur by the CDCJ is on a case-by-case basis. There are some cases in which the CDCJ has rejected granting the exequatur due to violations against public policy.

Moreover, the SC Regulation No. 3/2023 provides a further clear definition of public policy. Ketertiban umum as defined under Arbitration Law stipulates that the court must consider the likelihood of a public policy infringement while granting or refusing to accept and enforce a foreign arbitral award.

A noteworthy aspect of SC Regulation No. 3/2023 is that it introduces a broader definition of public policy, which includes: “anything that constitutes the essential foundation for the operation of the legal system, economic system, and socio-cultural system of the Indonesian community and nation.”

The ketertiban umum definition previously stipulated under Supreme Court Regulation No. 1 of 1990 on the Execution Procedures for Foreign Arbitral Awards, only defined it as “the fundamental principles of the entire legal system and society in Indonesia”. Therefore, SC Regulation No. 3/2023 contributes a more comprehensive perspective of Indonesia’s stance over public policy.

Conclusion

Enactment of SC Regulation No. 3/2023 demonstrates Indonesia to be anarbitration-friendlycountry. Beforehand, the process for the registration of foreign arbitral awards took a considerable time. The Supreme Court, through SC Regulation No. 3/2023 has streamlined electronic submissions through SIP for registering foreign arbitral awards and shortening timeframes during the following procedures:

1. Registration. The court registrar of the CDCJ must register foreign arbitral awards within 14 days of submission of all completed registration documents;
2. Exequatur. The CDCJ must issue an exequatur or non-exequatur of the foreign arbitral awards within 14 days of the submission of the exequatur request; and
3. Enforcement. The CDCJ must recognise and enforce, or reject, the foreign arbitral awards within 30 days of the submission of the enforcement request.

Subsequently, SC Regulation No. 3/2023 provides clarity and a broader definition of public policy, or ketertiban umum, as a basis for rejecting the enforcement of foreign arbitral awards.

HHR LAWYERS

Grha HHR Lawyers

Jl. Kawi Raya No. 45-46A

Guntur – Setiabudi

Jakarta 12980 – Indonesia

Tel: +62 21 5091 3991

Fax: +62 21 5091 3992

Email: hnr.jkt@hhrlawyers.com

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Ins and outs of labour dispute resolution in Taiwan

Labour disputes in Taiwan often involve issues such as employment terms and conditions, employment termination, severance pay, wages and overtime payment. To address these disputes, in addition to existing regulations (e.g., the Code of Civil Procedure and the Act for Settlement of Labour-Management Disputes, or the ASLMD), the Labour Incident Act (LIA) took effect on 1 January 2020, stipulating the procedural requirements for litigation concerning employment-related disputes.

Under the LIA, all courts must establish a specialised court or department and appoint judges with expertise in labour law to facilitate effective dispute resolution and protect employees’ rights. The LIA also contains the following innovative provisions on labour dispute and resolution.

Court-appointed pre-trial mediation. The LIA stipulates that if the parties have not petitioned for labour mediation held by the labour authorities, a mediation committee consisting of one judge and two court-appointed mediators will be formed to oversee the mediation process before the judge formally hears the case. If the mediation yields no resolution and a lawsuit is subsequently initiated, the judge participating in the mediation process will continue to preside over the subsequent court proceedings.

Shifting the burden of proof. According to the LIA, compensation payments received by an employee are presumed to be the worker’s “salary” for the performance of work and should be included when calculating pension or severance pay, unless the employer can prove otherwise (e.g., a discretionary bonus that should not be treated as part of the wages). The work hours documented by the employee’s attendance records should be deemed the hours that this employee has worked under the employer’s approval, and thus should serve as the basis for calculating the salary and/or the overtime pay, unless the employer can prove otherwise.

Provisional injunctions. The LIA specifies several types of provisional injunctions. If the court grants an employee’s request for provisional injunction, the employee will be reinstated and continue working while receiving wages until a final court judgment is rendered.

Regarding wrongful termination, article 49 of the LIA stipulates that if the court deems that the employee is likely to receive a favourable judgment and the employer can continue employing the worker without material difficulty, the court may issue a provisional injunction requiring the employer to continue employing the worker and paying wages.

In cases of wrongful job transfer or adjustment, article 50 of the LIA states that if the court finds such an action is likely to violate relevant labour laws, regulations, collective agreements, work rules, labour management conference resolutions, employment contracts or labour norms, and the employer can continue to employ the employee in their original position without material difficulty, the court may render a provisional injunction requiring the employer to continue employing the worker and paying wages according to their original labour conditions (collectively known as a continued employment provisional injunction or CEPI).

Judicial CEPI views

Overview. Since the LIA took effect in 2020, it has become common practice for employees to apply for a CEPI before filing wrongful termination or transfer lawsuits. The public information published by the Judicial Yuan shows a more than 60% chance of the court approving the employee’s application for a CEPI. This has become a substantial risk that employers must take into consideration when deciding whether to transfer or terminate employees.

Statutory criteria. When reviewing CEPI petitions, the court will determine whether the employees’ petition meets the statutory criteria of “likelihood of receiving a favourable judgment” and “whether the job transfer or adjustment are against the law and contract” based on the surrounding facts on a case-by-case basis.

Regarding “material difficulty to continue employing” a worker, the court will consider the following factors: the financial condition of the employer; the scale of operation or the number of employees of the employer; whether the employer is still actively recruiting; and whether the trust between the employer and the employee has been damaged.

In practice, the more controversial issue is whether the employee’s financial conditions should be taken into consideration. In some judgments, the court compared the employee’s financial conditions with the employer’s capital or operating income, while some courts explicitly pointed out that the financial conditions of the employees should not be a factor when reviewing the employees’ petition.

Compulsory execution of CEPI. At a Taiwan High Court seminar on civil execution cases, it was concluded that “continued employment” in the context of compulsory execution of a CEPI means that the employer should accept the employees’ services according to the original job duties or the agreed content of continued employment. Therefore, if the employer intends to instruct the employee to be on standby and not provide services, and if this instruction is not clearly stated in the ruling granting the CEPI and not agreed on by the employee, it may still be considered a violation of the CEPI, and the employer will be subject to penalties.

Our experience. Lately, labour courts have been more lenient in reviewing CEPI petitions. For example, where an employee filed a wrongful termination or job transfer lawsuit and sought a CEPI under articles 49 and 50 of the LIA, many district-level courts ruled in favour of the employee without giving the counterparty (i.e., the employer) the opportunity to express its opinion or defend itself, which is quite unusual compared to similar cases before the LIA came into effect. These courts also pointed out that the employees should only bear the minimum burden of proof.

However, if an employer obtains professional assistance after receiving an unfavourable CEPI decision from the lower court, it may be possible to persuade the higher court to overturn the decision.

For example, in a Taiwan High Court ruling, the employee, a general manager assigned by his employer to oversee a subsidiary in mainland China, filed a wrongful transfer lawsuit. The employee argued that the employer relocated him in retaliation against him, as he was the whistleblower of potential incidents regarding the violation of the employer’s internal procurement policies. The employee filed a petition and sought a CEPI under article 50 of the LIA. The district court, without providing the employer with an opportunity to express its opinion, granted a provisional injunction and ruled that the employer should continue to employ the employee as the general manager and pay him a monthly salary of about NTD140,000 (USD5,316) (including his assignment allowance for working in an overseas subsidiary) until the end of the main wrongful transfer lawsuit.

After the employer appealed against the ruling, the Taiwan High Court overruled the CEPI judgment and dismissed the employee’s petition for the following reasons:

1. The trust was damaged as the subject employee had been accused of workplace bullying and corruption by other employees;
2. The board of directors had elected a new general manager to replace the subject employee; hence, continuing employment may adversely affect the employer’s operations, which presents material difficulties; and
3. Although the employee cannot receive his assignment allowance because he has been reassigned to Taiwan, his salary is 60% of what he earned as the general manager, which will not cause significant hardship for him.

Conclusions

The above highlights the following:

1. The lower court may grant a CEPI without notifying the employer or giving the employer an opportunity to express its opinion;
2. When applying for a CEPI, the lower court will reduce the employee’s burden of proof and tend not to make a decision on the merits; and
3. After receiving the CEPI ruling, a detailed written statement focusing on the statutory criteria under the LIA will be crucial in persuading the higher court to overrule the CEPI.

Since the implementation of the LIA, employees now have access to more effective judicial relief and advantages in court proceedings, leading to a rise in such disputes before the labour courts. While the Supreme Court and the High Court occasionally rule in favour of employers, the Taiwan courts generally lean towards protecting employees and are conservative when it comes to wrongful termination or job transfer cases. In response to this trend, it is crucial for employers in Taiwan to review their work rules and internal policies to ensure compliance with HR regulations. Practically, it is also advisable for employers to handle any employment termination and job transfer with sensitivity and careful planning.

LEE AND LI, ATTORNEYS-AT-LAW

8F, No. 555, Section 4

Zhongxiao E Rd

Taipei 11072

Taiwan, ROC

Tel: +886 2 2763 8000

Fax: +886 2 2766 5566

Email: attorneys@leeandli.com

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A guide to Japan’s litigation laws and practices

The authors have been receiving more frequent inquiries from clients about criminal trials in Japan. One reason could be that there are fewer articles on this topic compared to civil trials and transactions in Japan for foreign readers. This article gives an overview of the Japanese criminal system, followed by a discussion on the issues often pointed out in criminal trials, such as hostage justice and the plea bargaining system.

Criminal trial overview

In Japanese criminal trials, jury trials are conducted only for certain serious crimes, while the majority of cases are judge-only.

A criminal trial begins with the prosecution of a person whom the prosecutor determines to be guilty based on evidence. Prior to prosecution, an investigating agency often arrests and detains a suspect with the permission of a judge in order to collect evidence necessary to uncover the full picture of the case. The maximum period of arrest and detention as a suspect is 23 days for each alleged crime. If a suspect under detention is prosecuted, the defendant will be able to apply for bail.

Investigation to judgment

If a suspect is arrested or detained, they will be interrogated by the police and prosecutors (investigating agencies). When the suspect’s detention period is approved by the judge, the investigating agencies will interview witnesses and collect evidence, and the prosecutor will consider whether there is reasonable doubt that the suspect has committed the crime, taking into account whether the suspect admits to the content of the evidence collected. If the prosecutor determines there is no reasonable doubt, the suspect will be prosecuted.

If a prosecution is filed, the first trial date is usually held one to two months after filing. First, the defendant is arraigned on the charges and the defendant’s lawyer states their plea (guilty or not guilty). The prosecutor then explains the outline of the case in the opening statement and submits the evidence to the court. The court conducts the evidentiary hearing procedure, taking into account the plea of the defendant and their lawyer.

In case the defendant admits the facts of the prosecution, the examination of evidence is usually completed with documents only, followed by questioning of the defendant (to hear the defendant’s story). The opinions of both parties are stated, and the trial is concluded. The number of trial dates depends on the amount of evidence presented by the defendant, but the trial is usually concluded in several sessions before the judgment.

In contrast, a case in which the defendant disputes the facts of the prosecution proceeds differently in a number of ways. After the prosecution is filed and before the arraignment date, the defendant and their lawyer must thoroughly review the evidence in the prosecutor’s possession.

In order to set a proper defence strategy, it is necessary to know what evidence the investigating agencies have collected, the credibility of their content, and whether there are any illegalities in the collection procedures. For this purpose, pre-trial proceedings (a procedure for the disclosure of evidence) are available.

Pre-trial proceedings allow for a broad review of the evidence, including obtaining a list of evidence in the prosecutor’s possession, and receiving disclosure of evidence that meets the statutory requirements. Once the defendant’s rebuttal strategy is determined, a date for arraignment is set, and the defendant and their lawyer may make their own arguments in their opening statements.

The court will then begin the evidentiary hearing, and if the defence does not agree with the evidence, the prosecutor will prove the content of the evidence by examining witnesses. During the examination of witnesses, the defendant and their lawyer will dispute the credibility of the evidence and testimony by exercising the right to cross-examination.

After witness examination, the defendant is questioned, the opinions of both parties are stated, and the trial is concluded. In denial cases, there may be many evidence examination dates, and the trial may last for several years.

Application to residents abroad

The scope of application of Japan’s criminal law is based on a principle of territoriality, which applies its own criminal law to all crimes committed within its territory, regardless of the criminal’s nationality.

In general, unless foreign residents come to Japan and commit a crime in the country, Japanese criminal law does not apply, and they will not be punished under the law.

However, in certain cases, the law applies even to acts committed abroad. One such type of case is that involving Japanese nationals who have committed certain serious crimes (e.g. murder, injury and arson) abroad, and another type is that involving anyone who has committed certain crimes (e.g. murder, rape and human trafficking) abroad in which a Japanese national is the victim.

Another type is a crime that harms the interests of Japan. For example, bribery related to Japanese financial instruments business operators is subject to Japanese criminal law, even if the act itself is committed abroad and the suspect is not Japanese.

For crimes under the principle of territoriality, depending on the act, the law may be applied even while abroad. For example, if a person abroad learns of an undisclosed material fact concerning a Japanese listed company, then orders a Japanese securities company to buy or sell shares of such listed company, and buys or sells them in the Japanese securities market, the contract itself regarding buying or selling is considered to be made in Japan, so it can be subject to insider trading regulations under the Japanese Financial Instruments and Exchange Act.

Even if the conspiracy, inducement or assistance of an accomplice is committed outside Japan, the accomplice is also subject to punishment if the principal criminal commits the crime in Japan. It should be noted that, depending on the type and manner of the crime, Japanese criminal law may be applied even if the act was committed outside of Japan.

Hostage justice

One of the well-known problems in Japanese criminal trials is known as hostage justice, because suspects and defendants are kept in custody for a long period of time. Investigating agencies investigate suspects at home only for certain minor crimes, and arrest and detention of suspects are implemented in many cases.

The decision of whether or not to detain a suspect is made by a judge, but detention tends to be imposed when guilt is disputed. If the suspect/defendant denies the crime, and is likely to conspire with others to conceal the crime, the judge may issue a no-contact order, a measure that prohibits the suspect/defendant from meeting or exchanging documents with any person other than their lawyer, in addition to detention.

After prosecution, the defendant can apply for bail, but while bail is relatively easily granted in cases where the defendant admits to the crime, it is not easily granted in cases where the defendant denies the crime. Thus, if a suspect or defendant denies the crime, they are unlikely to be granted bail.

Plea bargaining

Japan’s plea bargaining system is relatively new, introduced in 2018 to address organised and corporate crimes. Instead of the self-incrimination type, in which a person can enjoy the benefit of admitting their crimes, the system employs the investigation and trial co-operation type, in which a person’s own sentence is reduced if they provide an explanation for the crimes committed by others.

Specifically, it is a system whereby a suspect or defendant of a specific crime can agree not to be prosecuted, or to have their sentence reduced in return for making a truthful statement about the specific crime involving another person, such as during witness examination.

Crimes covered by Japan’s plea bargaining system are limited to certain fiscal and economic crimes, such as bribes that are systematically carried out, crimes involving drugs and firearms, and judicial obstruction of the system.

Cases where Japan’s plea bargaining system have been executed are still limited, but it is important to consider how to take advantage of this system in the near future.

MIURA & PARTNERS

3F East Tower Otemachi First

Square 1-5-1, Otemachi, Chiyoda-ku

Tokyo 100-0004, Japan

Tel: +813 6270 3500

Email: info@miura-partners.com

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Litigation laws and practices in India

As a nation whose global economic rankings have been on the rise, India continues to be perceived as failing to provide a suitable environment for litigating parties. The country has yet to become a haven for those pursuing claims or seeking prosecution. Endeavours in the past few years to improve litigation have borne some fruit, with the face of Indian litigation evolving at a much faster rate.

The framework

India’s legal framework draws inspiration from the era of British colonial rule, while also incorporating indigenous legal principles and customs. Civil disputes in Indian courts are predominantly governed by the Code of Civil Procedure, 1908 (CPC), the Commercial Courts Act, 2015, the Indian Evidence Act, 1872 (now Bharatiya Sakshya Adhiniyam), and the Limitation Act, 1963.

Jurisdiction and limitation play a pivotal role in the pursuit and defence of claims. The courts are required to possess territorial, pecuniary and subject matter jurisdiction, which can be complicated in certain cases involving multiple laws and convoluted facts, resulting in combined cause of action. Whether a dispute finds itself before the High Court or a lower court is decided on the basis of the pecuniary jurisdiction defined by each territorial (state-wise) High Court.

Various Indian states have not provided for any pecuniary jurisdiction to be bestowed on the High Court, resulting in high-value disputes also being brought before the subordinate courts and then climbing the judicial ladder by way of appeals.

Criminal disputes in India are primarily governed by the Code of Criminal Procedure, 1973 (CrPC, now the Bharatiya Nagrik Suraksha Sanhita) and the Indian Evidence Act, 1872. Further, while the Indian Penal Code, 1860 (now Bharatiya Nyaya Sanhita) is a primary legislation providing for classification of different offences in India, various special statutes deal with the offences of corruption (Prevention of Corruption Act, 1988), money laundering (Prevention of Money Laundering Act, 2002), sexual assault and sexual harassment of children (The Protection of Children from Sexual Offences Act, 2012), etc.

The offences under most of these special statutes are also governed by the CrPC, which provides the machinery for the investigation of crime, collection of evidence and determination of guilt/innocence. Cheque bouncing is also a criminal offence in India, and the drawer of a dishonoured cheque can be subject to up to two years in prison.

The CrPC also lays down guidelines on territorial jurisdiction that are primarily based on where the offence was committed, and specifies the jurisdiction of magistrates and judges based on the maximum punishment that can be imposed in a case. Pertinently, the notions of limitation do not apply to criminal proceedings unless there are express and specific provisions to that effect.

From 1 July 2024, the colonial criminal substantive and procedural laws that govern criminal prosecutions in India (the Indian Penal Code, 1860; the CrPC, and the Indian Evidence Act, 1872) have been replaced with the Bharatiya Nyaya Sanhita, the Bharatiya Nagrik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam.

These laws are expected to promote usage of technology in criminal trials on taking effect. In addition to these, there are various other developments in specialised fields of litigation that have been significant and include: the constitution of specialised courts for resolution of commercial disputes of specified value; introduction of a new insolvency and bankruptcy code; and necessary amendments to the arbitration law (especially those catering to international commercial arbitration).

Further, for violation of any fundamental right or any other right, writ is a common-law remedy provided to the people of India through article 32 (Supreme Court) and article 226 (High Courts) of the Constitution of India, 1950.

Exclusive jurisdiction clauses

Contracting parties often incorporate exclusive jurisdiction clauses conferring exclusive jurisdiction to a particular court in their contract to reduce inconvenience, prevent multiple litigations and forum-hunting.

Under Indian law, such exclusive jurisdiction is not absolute and cannot be conferred upon a court that would ordinarily not have jurisdiction under dian law. The exception to this would be an arbitration agreement, where the parties are free to agree to a particular venue as the seat of the arbitration, even though the said place does not otherwise have jurisdiction.

Specialised courts, tribunals

Specialised forums have been established in India to deal with specialised disputes.

• Commercial Courts. These courts were established with the intent of providing faster and specialised resolution of commercial disputes, which inevitably involve complex facts and questions of law under the Commercial Courts Act, 2015. This has been met with some practical challenges, as the civil judges are often posted in the commercial courts on a rotational basis, which prevents development of special expertise in commercial disputes.
• National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT). These tribunals were established under the Companies Act, 2013 to adjudicate corporate disputes and matters related to companies and limited liability partnerships, as well as insolvency proceedings. The NCLT and the NCLAT oversee the corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016 (IBC) for facilitating restructuring and resolving companies’ financial distress. They adjudicate applications for mergers, amalgamations and corporate restructurings, as well as oppression and mismanagement petitions.
• Prevention of Money Laundering Act, 2002 (PMLA), the Adjudicating Authority and the Appellate Tribunal. These forums were established under the PMLA to adjudicate cases related to money laundering and confiscation of proceeds of crimes. The Enforcement Directorate is mandated to investigate such cases and trace assets believed to be derived from proceeds of crime and provisionally attach them.

Other specialised courts and tribunals have been established under various statutes for ensuring a robust legal framework for commercial activities, corporate governance and financial integrity in India.

It is not uncommon for the civil and criminal courts and specialised tribunals mentioned previously to suffer because of overreach, or encounter an overlapping of jurisdictions. The NCLT and PMLA often face the issue of these conflicts, especially in the context of properties that are subject to attachment under the PMLA and are also subject to insolvency/liquidation proceedings under the IBC. Similarly, the NCLT and civil courts also face various conflicts including those pertaining to contentious shareholder agreements, directorships, etc.

Enforcement and execution

Once a judgment or decree is pronounced, the successful party in a lawsuit is required to initiate execution proceedings by filing an application for execution. Upon receipt of the execution application, the court issues an execution order directing the judgment debtor (the party against whom the decree is passed) to comply with the terms of the decree. Various methods are available for executing judgments and decrees including attachment and sale of property, arrest and detention, and appointment of a receiver.

Similarly, a foreign judgment can be enforced by initiating execution proceedings in case of “reciprocating territories”; in the case of a non-reciprocating territory, however, a civil suit will have to be instituted by the decree holder.

While enforcing foreign decrees in India, the executing court is required to examine whether the decree has been passed by a competent court of a reciprocating territory, whether it has finally and conclusively decided the dispute between the parties, and whether the decree is compatible with Indian law or public policy.

While obtaining a favourable judgment or decree in India is a significant legal victory, the process of enforcing such a decision can often be challenging and fraught with obstacles. Even though the enforcement mechanisms are available, their efficacy is hindered by the resistance shown by judgment debtors to comply with the judgments or decrees (by concealing assets, transferring properties, etc.) and the lack of specialised enforcement agencies.

Conclusion

The country continues to make strides to afford better dispute resolution options and simpler mechanisms for protecting infringed rights, contractual or otherwise. The use of e-filing portals by lawyers and litigants to file cases electronically, better access to court records, and virtual access to courtrooms have invited modernisation into a sphere that has largely been considered archaic by international standards.

The wide adoption of arbitration as a dispute resolution mechanism has also assisted in reducing the burden on the courts in India. This fast-evolving litigation landscape is expected to advance the cause of litigants and provide an atmosphere that is more conducive to international business.

LAW OFFICES OF PANAG & BABU

No. 82 Okhla Industrial Estate – III

New Delhi 110020 India

Tel: (+91) 11 4999 6800

Email: info@pblawoffices.com

www.pblawoffices.com

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