Hybrid | Cross-Border Disputes and Conflict of Laws in India

Cross-Border Disputes and Conflict of Laws in India: The Case for Asian-Inspired Reform

Speaker: Prof (Dr) Saloni Khanderia, Professor, Center for Transnational Legal Studies, London and Professor, Jindal Global Law School, OP Jindal Global University, Sonipat, India

Chair: Prof Alex Mills, UCL Laws

About this event

India, through its demographic and economic scale and its historical leadership in constitutional and human rights jurisprudence has been playing a significant role in shaping international legal discourse. Its transition from an agrarian economy to a liberalised, mixed-market system since 1991 has inspired many developing countries in the Global South. Indian judges have similarly made their mark globally, serving in renowned international forums, including the International Court of Justice, and International Commercial Courts in Singapore and Bahrain. Domestically as well, the judiciary has tirelessly attempted to modernise the country's jurisdictional framework and choice of law rules governing foreign-related civil and commercial matters to match the pace of economic reforms initiated post 1991. Notwithstanding statutory requirements restricting foreign forum selection and permitting concurrent jurisdiction, Indian courts have interpreted these provisions progressively ensuring an alignment with global standards. The judiciary has upheld party autonomy through landmark judgments and applied traditional doctrines such as forum non conveniens to adapt India’s private international law to the realities of cross-border commerce. However, since most judgments remain obiter, structural gaps in the rules governing cross-border disputes before Indian courts are often unaddressed, undermining predictability and investor confidence.

This seminar, while analysing the evolving role of Indian courts in developing the country’s rules governing cross-border disputes in civil and commercial matters, argues that their internationalisation requires coordinated action by all lawmaking bodies - the Parliament, the chief law-making body and Law Commission. Without it, India, being no exception, risks falling behind most Asian giants despite its economic prominence and legal potential. Absent systematised efforts, judicial efforts to revolutionise India’s conflict of laws, however commendable, will fall short for a myriad of reasons, notably due to the current prohibition on foreign lawyers appearing in court. As the study of conflict of laws remains marginalised in legal education and judicial training, the participation of foreign lawyers would foster the application of foreign law, confining the default application of the lex fori in most cases and enhancing the quality of adjudication. The central role of foreign lawyers and experts in transnational disputes has proven effective in many Asian jurisdictions like Singapore and China. India’s competitiveness as a venue for international litigation has further been undermined through the legislative mandate obligating courts to conduct a merits review on foreign judgments seeking enforcement in India, preventing enforcement of Indian judgments in most of its key trading partners, including Germany, Japan, China, and South Korea.

To rectify these shortcomings, the discussion proposes four substantial reforms, drawing from the experiences of its other Asian counterparts, Singapore, China, Japan, and South Korea. These include a) the opening Indian courts to foreign legal practitioners in cross-border cases, b) requiring judges to ascertain foreign law ex officio and supporting this with judicial training, c) issuing interim guidelines summarising case law to promote consistency pending codification, and d) reforming the recognition and enforcement regime to align with global standards. Ultimately, the internationalisation of India’s conflicts rules cannot rest on judicial shoulders alone; it requires a chorus of institutional voices to propel sustainable growth.

About the speaker

Dr. Saloni Khanderia is a Professor of Law at the Centre of Transnational Legal Studies, Georgetown University, London, and Jindal Global Law School, O.P. Jindal Global University, India, specialising in comparative private international law, international commercial law, contracts, and torts. She has held visiting professorships and fellowships at leading institutions, including Ludwig Maximilians Universität München (as an Alexander von Humboldt Fellow), the University of Johannesburg, Monash University (Prato Programme), the University of Catania, Osaka University, Singapore Management University, and the University of Münster. Prof Khanderia is the author and co-editor of several books, including Indian Private International Law (Hart, 2021) and Private International Law in BRICS: Convergences, Divergences and Reciprocal Lessons (Hart, 2024). She has published extensively in leading international journals and contributed national reports to the International Academy of Comparative Law. Her research focuses on cross-border dispute resolution, recognition and enforcement of foreign judgements, and the evolving role of private international law in emerging economies.

Photo by Naveed Ahmed on Unsplash