Legal Issues of Offshore Outsourcing to India | Copyright Trademark ...

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Laws in India are constantly undergoing amendments, according to the requirements of the changing times and in unison with International Laws and practices.

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India has ratified the World Trade Organization (WTO) Agreement, which came into force on January 1 st 1995 and has also turn out to be a party to the Agreement on Trade Related Intellectual Property Rights. In the last few years, India has effected many legislative modifications in copyrights, trademarks, designs, patents, and other problems besides enacting new legislations on bio-diversity and geographical indications. These measures have drastically reformed Indian laws on Intellectual Property.

Laws Governing International Contracts

When contracts transcend national boundaries, the national Legal Regime of any single country becomes inadequate to grapple with the situation. When the parties to the contract are situated in distinct countries, at least two systems of law impinge upon the transaction and the rules of Private International Law come into play.

The finest way to make certain the application of a particular legal method to international contracts is to pick a specific law to govern this contract. This law is referred to as the ?Appropriate Law of the Contract?. The Courts have held that ?Correct Law is the law which the parties have expressly or impliedly chosen, or which is imputed to them by reason of its closest and most actual connection?.

Indian courts uphold choice of law

When the parties in the Contract make an express selection of law, the Indian Courts have usually recognized such choice of appropriate law. Previously in the US , although Courts generally honored the law chosen by the parties, the identical was limited due to the holding that there really should be some ?reasonable relationship? between the transaction and the chosen law. This produced some uncertainty. This legal quandary was totally removed by the New York General Obligations Law, which became powerful on July 19 th 1984. According to Section five-1401 of the stated Law, parties are given freedom to pick New York as their correct Law regardless of any relation to New York . Nonetheless, where parties have chosen any law other than Indian Law, the selections of law have always been upheld by the Indian Courts.

Outsourcing parties are no cost to pick the law that will govern their contracts.

Under Indian Law, parties are free to stipulate their terms of contract and lay down the law by which the Contract is to be governed. Courts in India have held that the intention of parties would choose the law of which country would govern the Contract and which Court would have jurisdiction. Sections 13, 15 and 44A of the Indian Civil Procedure Code and Section 41 of the Indian Evidence Act, govern the conclusiveness and enforcement of foreign judgments in India . If there is a reciprocal arrangement between India and the foreign country whose judgment is sought to be enforced, then under section 44A of the Indian Civil Procedure code, the said foreign Decree could be executed as if it had been a Decree passed by the Indian court with out the require to file a Suit. If there is no reciprocal arrangement between the foreign country concerned and India , then the stated Judgment/ Decree can be enforced in India by filing a Suit on the foreign judgment.

Guidelines to follow while entering International Contracts
Firms enter into International Contracts, as they are often profitable. The following aspects really should be deemed while entering into International Contracts, which would safeguard the interests of all the parties to the Contract:

o There should be an express selection of Law governing the Contracts.

o Make certain that the legal regime of the Country whose law is chosen, recognizes the proper law for enforcement.

o In instances where Contracts are signed in a country which is diverse from the country whose law is chosen, it really should be ensured that the formal requirements of that place of Contract are fulfilled in all respects.

o Where the chosen Law is Indian Law and if Indian Judgment is to be enforced on any foreign soil, guarantee that the said foreign soil has a similar law on the lines of Section 44A of the Indian Civil Process Code.

o Where Arbitration is chosen as the technique of dispute resolution, the place of arbitration and other aspects have to be correctly determined.

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Source: http://www.meiem.org/legal-issues-of-offshore-outsourcing-to-india.html

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