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Legal experts examine the shortfalls in the Indian judicial system and share how the UK's expertise could be leveraged to help India deliver justice in a speedy, transparent and accurate manner.
Highlights:
India requires a robust and dynamic judicial system and judicial techniques to ensure freedom, justice and equality as enshrined in the Constitution of India.
In 2016, the government launched the Mumbai Centre for International Arbitration (MCIA), India's first-of-its-kind international institution of arbitration, set up with the aim of attracting resolution of disputes involving Indian parties, trade and investment into Mumbai and Maharashtra.
Collaboration between the UK and India is expected to expedite the adoption of innovative practices by the Indian government, leading to easing the regulatory environment in the country and fostering a conducive business climate in India.
India and the UK are often seen as sharing a historical partnership which, as stated by the Indian prime minister, is an 'unbeatable combination'. India with its diverse demographics, with almost 1.3 billion people where 70 per cent of the population is said to be below the age of thirty-five, 31 per cent born after the year 2000 and 70 per cent living on $2 per day, requires a robust and dynamic judicial system and judicial techniques to ensure freedom, justice and equality as enshrined in the Constitution of India.
The UK is now in a position to reassert its sovereignty and to control its own laws, borders and regulations, to cut the red tape that has fettered business and commerce for so many years, to introduce policy and regulation that will help and facilitate the trade with India, to enable its own and Indian regulators to form stronger bilateral relationships and to employ 'best practices' outside EU rules. India will find it much easier to negotiate trade deals with the UK alone as opposed to with the entire EU bloc.
Post Brexit, the UK will be free of European regulations and able to organise its relationships on a bilateral basis with international partners with complete sovereignty to legislate, enter into bilateral treaties and have a business environment most friendly to its businesses, and their clients and customers. In this light, India and the UK must aim to take their unbeatable combination to new heights. Further, post Brexit, neither the UK nor India would be constrained to offer the same terms of legal initiatives to other European nations, thereby assisting each other to access competitive talent from their respective countries.
While currently, India is ranked at 130 out of 190 economies, the India government has achieved phenomenal improvement in ease of doing business rankings in recent years. In light of this, collaboration is expected to expedite the adoption of innovative practices by the Government of India (GoI), state governments and their agencies leading to easing the regulatory environment in the country and fostering a conducive business climate in India. There is no question that such a partnership would be best supported by the legal professionals in both countries especially given that several expertise heads offered by the UK are related to law, rules and regulations and their enforcemen.
India has the second-largest lawyer population in the world of approximately 1.3 million, with another 80,000-90,000 lawyers graduating from Indian law schools each year. By keeping a closed door to the free flow into the legal services sector, India has denied its lawyers in-country exposure to what top international law firms offer in training and work environments. In fact, given its huge workforce of lawyers and an expanding graduating class every year, India could be exporting top-notch legal services to service the international community. Instead, a handful of lawyers leave the country for international practice each year causing a brain drain in the legal fraternity.
Further, the Indian judicial system has, inter alia, been plagued by issues relating to lack of speedy dispute resolution, lack of transparency and low cost-effectiveness; all of these are actually a contradiction to the large number of lawyers available in India.
The government passed the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) to establish certain commercial divisions and commercial appellate divisions in High Courts, and commercial courts at the district level to adjudicate commercial disputes of specified value and related matters thereto to effect the enforcement of contracts and improve efficiency in commercial transactions.
It is in this context that arbitration may be presented as an effective dispute resolution method which seeks to provide an efficient and cost-effective alternative to the court system. The UK, with its centuries of experience in dealing with cross-border and domestic commercial disputes, is best placed to assist the Indian judicial system to overcome the problems it is currently facing in helping with training and the cross-border transfer of know-how and expertise.
On 8 October 2016, GoI launched the Mumbai Centre for International Arbitration (MCIA) in Mumbai, India. MCIA is India's first-of-its-kind international institution of arbitration and has essentially been set up with the aim of attracting resolution of disputes involving Indian parties, trade and investment into Mumbai and Maharashtra. MCIA is also an attempt to rationalise institutional arbitration in India and make India a global hub for international commercial arbitration.
However, to be a truly global or regional arbitration hub, India must endeavour to look to attract disputes without a specifically Indian element and this can be mainly achieved by attracting top international professional talent to work in India including lawyers and international arbitrators. Given the 'unbeatable combination' between India and the UK, collaboration between the two countries in the legal services sector would support India's efforts to transition into the next decade as a country which is empowered to deliver justice in a speedy, transparent and accurate manner for the benefit of all its citizens.
Richard Gubbins is Senior Corporate Partner of Ashurst LLP and Head of the Ashurst Business Group; Gopika Pant is the Managing Partner of Indian Law Partners.