Contentious Advisory
The firm advises clients at the pre-litigation and pre-arbitration stage, with the object of minimising the risk of litigation or arbitration. It is frequently instructed before a dispute is formally escalated, to set strategy, give direction to correspondence, assist in settlement through direct negotiation where possible and preserve rights at an early stage. Clients include domestic and foreign corporations, insurers, energy, engineering, construction and shipping companies, banks and financial institutions, and public sector undertakings. Where a matter cannot be resolved, the firm carries it into litigation or arbitration.
The legal framework
The substantive framework is the Indian Contract Act 1872 and the Sale of Goods Act 1930, with the Specific Relief Act 1963 governing specific performance and injunctions and the Negotiable Instruments Act 1881 governing dishonoured instruments. Limitation is measured under the Limitation Act 1963, insolvency demands proceed under the Insolvency and Bankruptcy Code 2016, and arbitration questions arise under the Arbitration and Conciliation Act 1996. Where a matter is escalated, it proceeds before the courts under the Code of Civil Procedure 1908, from the High Courts to the Supreme Court of India, before the National Company Law Tribunal, the National Company Law Appellate Tribunal and regulatory tribunals under their own procedures, or in ad hoc and institutional arbitration across jurisdictions.
Scope
Pre-dispute assessment of claims and defences, working from the contracts, the correspondence and the underlying facts.
Legal notices and responses, including demand notices under Section 8 of the Insolvency and Bankruptcy Code 2016.
Written opinions and memoranda on contentious civil, commercial and regulatory questions.
Advice to energy companies on force majeure, take-or-pay obligations and the restructuring of long-term supply contracts.
Advice at each stage of public procurement tenders, from tender documents and prequalification to award and post-closure issues.
Representations to sector regulators on draft regulations, and responses to show cause notices.
Advice to directors and officers on civil and criminal liability exposure, including exposure from overseas regulatory investigations.
Coverage advice to insurers under material damage, business interruption, professional indemnity, cyber, crime and directors and officers policies.
Settlement negotiation strategy, and the conduct of conciliation and mediation, ad hoc and before institutions in India and abroad.
Due diligence on pending and threatened litigation in corporate transactions.
Advice on forum, seat of arbitration and governing law in cross-border disputes.
Where it applies
Writing on this subject
Restructuring & Insolvency 2024 — India chapter
Debarshi Dutta, Trinath Tadakamalla, Nikita Rathi · International Comparative Legal Guides (ICLG) · 2024
Law and Jurisdiction in Insurance and Reinsurance Contracts — Asia Pacific, India chapter
Maya Ramesh · RPC Premier Law · March 2023