Enforcing Foreign Arbitral Awards in India: A Legal Overview, Assignments of Law

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Section 44-52 of ARTRATION COCILATION ACT, Yashpal yadav 906 LLB 3 YEAR 5TH^ SEM

Part II of the Arbitration and Conciliation Act,

1996 (the Act) amended by the Arbitration and

Conciliation (Amendment) Act, 2015 deals with

enforcement of certain foreign awards. India

recognises foreign awards under the New York

Convention and the Geneva Convention.

1. DEFINITION OF FOREIGN AWARD

According to Section 44 of the Act a foreign award means an arbitral award on disputes arising between parties to arbitration, whether in contractual or non-contractual relationship, considered as commercial under Indian laws enacted on or after the 11th day of October, 1960. But the country must be a signatory to the New York Convention and recognised by the Central Government of India as a Convention country and the award shall be passed in the territory of another contracting country which is a reciprocating territory, i.e the Central Government of India has notified it as Convention country in its Official Gazette.

2. POWER OF JUDICIAL AUTHORITY TO REFER

PARTIES TO ARBITRATION

translated into English and/or any other evidence to establish that the award is a foreign award. The burden of proof is on the party seeking to enforce the foreign arbitral award to prove that it is a genuine foreign award and the aforesaid documents form a prima facie evidence to establish the same.

5. CONDITION FOR ENFORCEMENT OF FOREIGN

AWARDS

As per section 48 (1) of the Act, a foreign award may not be enforced in India if it is proved by the party against whom it is sought to be enforced that: the parties to the agreement were under some incapacity to perform under the law to which they were subjected to and in the absence of any mention of such law, the law of the country where the award was made, i.e. the place of arbitration, or, the agreement was invalid under the law to which the parties have subjected it and in the absence of any mention of such law, the law of the country where the award was made, or, a fair trial was not conducted by the tribunal passing the award by failing to adhere to the principles of fair hearing, or, the award passed was partly or wholly beyond the scope of the arbitration agreement, in which case the part of the

award exceeding the scope of submission to arbitration may be separated from rest of the award, or, the composition of the arbitral tribunal or authority and/or the procedure of its appointment was not in accordance with the arbitration agreement or in the absence of any mention of the same in the agreement, it was not in accordance with the law of the country where the arbitration proceedings were held, i.e. the place of arbitration, or, the award has not yet been made binding on the parties or has been set aside or suspended by a competent authority of the country which is either the place or seat of arbitration. The court may call upon such party making an application under section 48 (1) to provide evidence to prove the existence of any or all of the grounds for refusal of enforcement of award as mentioned above. As per section 48 (2) of the Act, a foreign award may not be enforced in India if it is found by the court in India that: the settlement of the award is not as per Indian arbitration laws, or the enforcement of the award is contrary to the public policy of India. This defense should be construed narrowly. It has to be something more than mere contravention of law to attract this defense. An award is said to be in conflict with the public policy of India if it has been affected by fraud or corruption; or it was in violation of the of the Act; or it was in

is a question of fundamental importance or public interest. But in the case of an award held to be non-enforceable by the court, an appeal may be allowed under section 50 (1) (b) of the Act. The decree shall be executed, on application by the decree- holder, in accordance with the provisions of CPC by the court which passed it.