In a recent panel discussion, EssilorLuxottica’s General Counsel Ana Silvia Dias Haynes expressed concerns over the unpredictability and delays associated with India’s lower courts, which often complicate business operations. Haynes emphasized that in her experience, settlements have frequently yielded more favorable commercial outcomes in India compared to litigation or arbitration. “I find it challenging to depend on lower courts here due to their varied rationales and orders,” she stated. “Meanwhile, businesses suffer. Thus, often in India, the best approach is to negotiate a settlement with the counterpart,” she added.
The discussion, titled Interim Relief and Anti-Suit Injunctions: A Resurgent Cross-Border Battle, was part of The India-Singapore Arbitration Corridor: Emergency Relief, Interim Measures and Cross-Border Challenges, hosted by the Mumbai Centre for International Arbitration and Drew & Napier during Singapore Convention Week. The panel included Drew & Napier Director Abhinav Bhushan, Khaitan & Co Partner Raj Panchmatia, and Argus Partners Senior Partner Soorjya Ganguli.
Abhinav Bhushan highlighted that lawyers advising clients in cross-border disputes should begin by considering the desired commercial result and then work backward. He noted that securing interim relief in one jurisdiction is futile if the award cannot be enforced where the counterparty’s assets reside. “In recent years, clients have sought a pragmatic approach. It’s crucial to understand where the endgame leads,” Bhushan remarked.
He further advised against incurring significant costs on multi-jurisdictional proceedings if the award could be unenforceable in India due to public policy objections. “You don’t want to spend massively across jurisdictions only to hit a public policy roadblock in India,” he cautioned.
Soorjya Ganguli explained that seeking interim protection in India-seated arbitration proceedings is straightforward. Before the tribunal’s constitution, parties typically approach courts under Section 9 of the Arbitration and Conciliation Act. “The process is simpler for India-seated arbitrations, as parties naturally opt for Section 9,” he explained.
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Ganguli noted that courts are increasingly favoring the early constitution of tribunals to facilitate further interim relief under Section 17. However, for foreign-seated arbitrations, the process is more complex since interim orders passed abroad aren’t directly enforceable in India, necessitating action under Section 9.
Raj Panchmatia advised that in the case of Singapore-seated arbitrations with Indian assets, it is often more effective to petition Indian courts under Section 9 than to rely on an emergency arbitrator’s order from abroad. He suggested identifying assets of the Indian counterparty in other jurisdictions as an alternative strategy.
Haynes stressed that in-house legal teams are under pressure to manage costs and secure urgent protection within complex corporate frameworks. Consequently, they should focus on the essential relief needed by the business, rather than delving into detailed procedural discussions. “We need effective orders to restore the status quo, not lengthy debates on procedural details,” she emphasized.
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She compared the Indian judicial experience with that of Singapore, where courts and arbitral bodies are noted for their efficiency and commercial acumen. “In Singapore, efficiency is paramount, and time equates to money. Their courts are notably efficient,” Haynes observed.
The panel also examined conflicting judgments from Indian and Singaporean courts in the case between Engineering Projects (India) Limited and MSA Global LLC. The Delhi High Court had halted the Singapore-seated arbitration, terming it vexatious, while the Singapore court restrained the Indian company from pursuing its case in the Delhi High Court.
