High Courts, Supreme Court more predictable than lower courts in India: EssilorLuxottica GC

Businesses can find it difficult to rely on lower courts in India because of unpredictability and delays, EssilorLuxottica General Counsel Ana Silvia Dias Haynes said on Thursday.

Haynes said that settlement had often produced better commercial outcomes for her company in India than litigation or arbitration.

“I find it difficult to rely on lower courts in India. They have so many different rationales or certain orders that they do,” she said.

“In the meantime, the business is suffering. So often in India, what I found the best solution is actually to sit down with the counterpart and find a settlement,” she added.

Haynes was speaking at a panel discussion titled Interim Relief and Anti-Suit Injunctions: A Resurgent Cross-Border Battle. It formed part of The India-Singapore Arbitration Corridor: Emergency Relief, Interim Measures and Cross-Border Challenges, organised by the Mumbai Centre for International Arbitration and Drew & Napier during Singapore Convention Week.

The panel also comprised Drew & Napier Director Abhinav Bhushan, Khaitan & Co Partner Raj Panchmatia and Argus Partners Senior Partner Soorjya Ganguli.

Bhushan said lawyers advising clients in cross-border disputes must begin with the desired commercial outcome and work backwards. Winning interim relief in one jurisdiction would be of little use if the eventual award could not be enforced where the counterparty’s assets were located.

“In the last few years, we’ve seen instances where clients want their analysis to be a little pragmatic. Where does the endgame lead to is very, very important. So you kind of look at the final result and try to work backwards,” he said.

Bhushan added that parties should avoid spending heavily on proceedings in several jurisdictions only to discover that an award cannot be enforced in India due to a public policy objection.

“So you don’t want to be in a situation where you incur massive costs in court proceedings across jurisdictions, only to realise that when you land up in India for enforcement of an award, it hits at the root of public policy.”

Ganguli said the approach to interim protection was relatively straightforward in an India-seated arbitration. Before the arbitral tribunal was constituted, parties ordinarily approached courts under Section 9 of the Arbitration and Conciliation Act.

“The answer is relatively simpler if it’s an India-seated arbitration. What we’ve seen is that prior to the tribunal being constituted, it’s a natural recourse that parties go to a Section 9,” he said.

Ganguli said courts were increasingly reluctant to continue Section 9 hearings for too long. Their preference was to facilitate the early constitution of the tribunal and allow the parties to seek further interim relief from the arbitrators under Section 17.

He added that the position was more complicated in foreign-seated arbitrations because an interim order passed abroad was not directly enforceable in India. A party may have to approach an Indian court under Section 9 and independently satisfy the requirements for injunctive relief.

Panchmatia said that if a Singapore-seated arbitration involved assets located in India, the more effective course would generally be to approach an Indian court under Section 9 instead of first obtaining an emergency arbitrator’s order abroad.

Where possible, the successful party could instead identify the Indian counterparty’s assets in another jurisdiction, Panchmatia suggested.

“Look for an asset outside India. If you have a seat in Singapore, there could be an asset of an Indian party anywhere in the world or money passing through any jurisdiction. That may be an easier way to attach rather than come to India for an attachment.”

Haynes said in-house teams faced pressure to control costs and obtain urgent protection across increasingly complex corporate structures. Their lawyers should, therefore, simplify their advice and focus on the relief the business needed.

“What we need is an effective order to reinstate the status quo. We don’t really want to be discussing Section 8B, C, D, E or whether or not this needs to be reformed.”

She contrasted the Indian experience with Singapore, where courts and arbitral institutions were more efficient and commercially oriented.

“Singapore is the opposite, where efficiency, business mentality and time are money. Courts are very efficient, and everything moves pretty quickly.”

The panel also discussed the conflicting orders passed by Indian and Singapore courts in the dispute between Engineering Projects (India) Limited and MSA Global LLC. The Delhi High Court had restrained the Singapore-seated arbitration after finding the proceedings vexatious and oppressive, while the Singapore court restrained the Indian company from continuing its case before the Delhi High Court.