| If you are considering outsourcing to India, but need | | | | are given freedom to select New York as their proper |
| some information on the legal issues in offshore | | | | Law regardless of any relation to New York . |
| outsourcing or are worried about whether your | | | | However, where parties have chosen any law other |
| contract will be honored by the Indian Legal System, | | | | than Indian Law, the choices of law have always been |
| read on. | | | | upheld by the Indian Courts. |
| Indian Laws on Intellectual Property | | | | Outsourcing parties are free to choose the law that |
| Laws in India are always undergoing amendments, | | | | will govern their contracts. |
| according to the needs of the changing times and in | | | | Under Indian Law, parties are free to stipulate their |
| unison with International Laws and practices. | | | | terms of contract and lay down the law by which the |
| India has ratified the World Trade Organization (WTO) | | | | Contract is to be governed. Courts in India have held |
| Agreement, which came into force on January 1 st | | | | that the intention of parties would decide the law of |
| 1995 and has also become a party to the Agreement | | | | which country would govern the Contract and which |
| on Trade Related Intellectual Property Rights. In the last | | | | Court would have jurisdiction. Sections 13, 15 and 44A |
| few years, India has effected several legislative | | | | of the Indian Civil Procedure Code and Section 41 of |
| changes in copyrights, trademarks, designs, patents, | | | | the Indian Evidence Act, govern the conclusiveness |
| and other issues besides enacting new legislations on | | | | and enforcement of foreign judgments in India . If there |
| bio-diversity and geographical indications. These | | | | is a reciprocal arrangement between India and the |
| measures have drastically reformed Indian laws on | | | | foreign country whose judgment is sought to be |
| Intellectual Property. | | | | enforced, then under section 44A of the Indian Civil |
| Laws Governing International Contracts | | | | Procedure code, the said foreign Decree could be |
| When contracts transcend national boundaries, the | | | | executed as if it were a Decree passed by the Indian |
| national Legal Regime of any single country becomes | | | | court without the need to file a Suit. If there is no |
| inadequate to grapple with the situation. When the | | | | reciprocal arrangement between the foreign country |
| parties to the contract are located in different | | | | concerned and India , then the said Judgment/ Decree |
| countries, at least two systems of law impinge upon | | | | can be enforced in India by filing a Suit on the foreign |
| the transaction and the rules of Private International | | | | judgment. |
| Law come into play. | | | | Guidelines to follow while entering International |
| The best way to ensure the application of a particular | | | | Contracts |
| legal system to international contracts is to choose a | | | | Companies enter into International Contracts, as they |
| particular law to govern this contract. This law is called | | | | are always profitable. The following aspects should be |
| the "Proper Law of the Contract". The Courts have | | | | considered while entering into International Contracts, |
| held that "Proper Law is the law which the parties | | | | which would safeguard the interests of all the parties |
| have expressly or impliedly chosen, or which is imputed | | | | to the Contract:o There should be an express choice |
| to them by reason of its closest and most real | | | | of Law governing the Contracts.o Ensure that the legal |
| connection". | | | | regime of the Country whose law is chosen, |
| Indian courts uphold choice of law | | | | recognizes the proper law for enforcement.o In cases |
| When the parties in the Contract make an express | | | | where Contracts are signed in a country which is |
| choice of law, the Indian Courts have always | | | | different from the country whose law is chosen, it |
| recognized such choice of proper law. Previously in the | | | | should be ensured that the formal requirements of that |
| US , though Courts generally honored the law chosen | | | | place of Contract are fulfilled in all respects.o Where |
| by the parties, the same was limited due to the holding | | | | the chosen Law is Indian Law and if Indian Judgment is |
| that there should be some "reasonable relationship" | | | | to be enforced on any foreign soil, ensure that the said |
| between the transaction and the chosen law. This | | | | foreign soil has a similar law on the lines of Section |
| created some uncertainty. This legal quandary was | | | | 44A of the Indian Civil Procedure Code.o Where |
| fully removed by the New York General Obligations | | | | Arbitration is chosen as the method of dispute |
| Law, which became effective on July 19 th 1984. | | | | resolution, the place of arbitration and other aspects |
| According to Section 5-1401 of the said Law, parties | | | | have to be properly determined. |