CHANAKYA NATIONAL LAW

UNIVERSITY

ENFORCEMENT OF FOREIGN AWARD IN

INDIA
CONFLICT OF LAWS

Submitted to:
Dr. P.P. Rao

Submitted by:
Rajat Kashyap
Roll No- 1423
5th Year, 9th Semester

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 Research Methodology

Aims and Objectives:

The aim of the project is to present a detailed study of enforcement of foreign award in india.

Scope and Limitations:

The project is basically based on the doctrinal method of research as no field work is done on
this particular topic. The whole project is made with the use of the secondary sources.

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical and
descriptive.

Mode of Citation:

The researcher has followed uniform form of citation throughout the course of this research
paper.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Books
2. Websites

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 Acknowledgement
It gives me incredible pleasure to present a research work on the case study of “Enforcement of
foreign award in India”. I would like to enlighten my readers regarding this topic and I have tried
my best to pave the way for bringing more luminosity to this topic.

I am grateful to my faculty in charge Dr. P.P. Rao who has encouraged me to complete this
project. I would like to thank the librarian of CNLU for their interest in providing me ample
research material.

Rajat kashyap

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Table of Contents
CHAPTER I – NEW YORK CONVENTION AWARDS ..................................................... 5
DEFINITION OF FOREIGN AWARD ........................................................................................................ 5
POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO ARBITRATION .............................................. 5
FOREIGN AWARD WHEN BINDING ....................................................................................................... 5
ENFORCEMENT OF FOREIGN AWARDS ................................................................................................ 8
CHAPTER II – GENEVA CONVENTION AWARDS ................................................................... 9
INTERPRETATION .................................................................................................................................. 9
POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO ARBITRATION .............................................. 9
FOREIGN AWARD WHEN BINDING ....................................................................................................... 9
EVIDENCE REQUIRED TO APPLY FOR ENFORCEMENT OF A FORIEGN AWARD .................................. 10
CONDITION FOR ENFORCEMENT OF FOREIGN AWARDS ................................................................... 10
ENFORCEMENT OF FOREIGN AWARDS .............................................................................................. 11

Conclusion ............................................................................................................................. 12
BIBLIOGRAPHY ...................................................................................................................... 13

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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.

CHAPTER I – NEW YORK CONVENTION AWARDS

DEFINITION OF FOREIGN AWARD1

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.

POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO

ARBITRATION

Section 45 of the Act empowers a judicial authority to refer the parties to

arbitration at the request of one of the parties or any person claiming through or
under him except in the situation when the agreement is found to be void,
inoperative or incapable of being performed.

FOREIGN AWARD WHEN BINDING

Section 46 of the Act provides that any foreign award which would be enforceable
under this Chapter shall be treated as binding for all purposes on the persons as

1
The Foreign Awards (Recognition And enforcement) Act, 1961

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 between whom it was made. It may be relied upon by the parties in any legal
proceedings in India.

1. EVIDENCE REQUIRED TO APPLY FOR ENFORCEMENT OF A

FORIEGN AWARD

According to section 47 of the Act a person seeking to enforce a foreign arbitral

award shall make an application to a court, i.e. high court having jurisdiction in the
matter as per the provisions of the Amendment Act, 2015 and provide the original
award or its certified copy; original arbitration agreement or its duly certified copy;
and if the award or agreement is in a foreign language, the party seeking to enforce
must produce a certified copy of a foreign award 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.

2. CONDITION FOR ENFORCEMENT OF FOREIGN AWARDS

1. 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:
2. 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,
3. 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,

1. 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,

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2. 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,

3. 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.

1. 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:

2. the settlement of the award is not as per Indian arbitration laws, or

3. 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 contravention with the fundamental policy
of Indian law or basic principles of morality or justice.

Section 48 only provides grounds for refusal of enforcement of foreign award as

mentioned in A and B and it does not permit the court to make a review of the
foreign award on the merits of the case; does not permit the court to exercise its
appellate jurisdiction over the foreign award; and does not permit the court to
enquire as to whether some error has been committed by the tribunal while passing
the foreign award.

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It is further provided that if an application for the setting aside or suspension of the
award has been made to a competent authority, the court may, if it considers it
proper adjourn the decision on the enforcement of the award and may also, on the
application of the party claiming enforcement of the award, order the other party to
give suitable security.

ENFORCEMENT OF FOREIGN AWARDS

As per section 49 of the Act if a court decides to uphold the foreign award and
enforce it then it shall be deemed to be a decree of the court and no appeal shall lie
against the award so upheld except for a discretionary appeal to Supreme Court of
India under Article 136 of the Constitution of India when it 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.

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 CHAPTER II – GENEVA CONVENTION AWARDS

INTERPRETATION

As per section 53 of the Act a foreign award is an arbitral award on disputes

relating to matters which are considered commercial under Indian laws enacted
after 28th day of July, 1924 and comply with the following conditions:

• The award is in accordance with the agreement for arbitration to which the
Protocol laid down in the Second Schedule of the Act is applicable;
• The award is with respect to the persons, one of whom is subjected to the
jurisdiction of the country which has been recognised as a Convention party by the
Central Government of India vide notification in the Official Gazette and the other
who is subject to the jurisdiction of any other Convention country so recognised by
India through notification in the Official Gazette.
• The award has been made in any of the Convention countries so recognised by the
Central Government of India vide notification in the Official Gazette and the
award shall be deemed final only if no legal proceedings or appeal against such
award is not pending in such jurisdictions.

POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO

ARBITRATION

Section 54 of the Act empowers a judicial authority at the request of one of the
parties or any person claiming through or under him to refer the parties to
arbitration if it is satisfied about the validity of the agreement. The section is
attracted only if there is an actual reference to the arbitration.

FOREIGN AWARD WHEN BINDING

Section 55 of the Act provides that an award which satisfies the conditions of
enforceability mentioned under section 57 of the Act is enforceable and is to be
treated as binding for all purposes and also on persons as between whom it was
made. It may be relied upon by the parties in any legal proceedings in India. Any
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 references to enforcing a foreign award shall be construed as including references
to relying on an award.

EVIDENCE REQUIRED TO APPLY FOR ENFORCEMENT OF A FORIEGN

AWARD

According to section 56 of the Act a party seeking to enforce a foreign arbitral

award shall make an application to a court, i.e. high court having jurisdiction in the
matter as per the provisions of the Amendment Act, 2015 and provide the original
award or its certified copy; evidence to prove that the award has become final and
is in pursuance with section 57 (1) (a) and (c); and if the award or agreement is in a
foreign language, the party seeking to enforce must produce a certified copy of a
foreign award translated into English and/or any other evidence to establish that
the award is a foreign award.

If the award or agreement is in a foreign language, the party seeking to enforce

must produce a certified copy of a foreign award translated into English. As per the
Amendment Act, 2015 the application for enforcement of a foreign award will only
lie to a high court having jurisdiction.

CONDITION FOR ENFORCEMENT OF FOREIGN AWARDS

As per section 57 (1) of the Act, there are certain conditions for enforcement of
foreign awards under the Geneva Convention, such as:

• The award has been passed in accordance with the submission to arbitration by
parties;
• The Indian laws of arbitration allow the settlement of the award;
• The award has been passed in accordance with the arbitration agreement by the
tribunal or arbitral authority as determined by the parties mutually and according to
the law governing the arbitration;
• The award has become final in the country where it has been passed and no
objections or appeal or any other proceedings are pending against it;
• The enforcement of the award is not contrary to the public policy or the laws of
India. 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 is in violation of confidentiality

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 provisions of an attempted conciliation under the Act; or it was in contravention
with the fundamental policy of Indian law or basic principles of morality or justice.
As per section 57 (2) of the Act, a foreign award may not be enforced in India if it
is found by the court in India that:

1. the award has been declared null and void by courts in the country in which it was
made;
2. fair trial was not held by the arbitrator, in the sense, that the party was not given a
fair opportunity to be heard or that he was not properly represented by an advocate,
pending which the award has been passed;
3. the award is beyond the scope of the submission to arbitration: Provided that if the
award has not covered all the disputes submitted to the arbitral tribunal, the court
may either postpone such enforcement or grant it subject to such guarantee as the
court may decide.
Section 57 only provides grounds for refusal of enforcement of foreign award as
mentioned in A and B and it does not permit the court to make a review of the
foreign award on the merits of the case; does not permit the court to exercise its
appellate jurisdiction over the foreign award; and does not permit the court to
enquire as to whether some error has been committed by the tribunal while passing
the foreign award.

The party against whom the award has been passed, if he proves, that there exists
any other ground other than mentioned above to challenge the validity of the
award, then the court, may, either refuse the enforcement of such award or
postpone the proceedings and give the party sufficient time to get the award
cancelled by the competent tribunal.

ENFORCEMENT OF FOREIGN AWARDS

As per section 58 of the Act if a court decides to uphold the foreign award and
enforce it then it shall be deemed to be a decree of the court. The Arbitration Act
and interpretations by the Supreme Court provide that every final arbitral award is
enforced in the same manner as if it were a decree of the court and as per section
59 of the Act appeals may lie against the order refusing to refer the parties to
arbitration under section 54; refusing to enforce a foreign award under section 57.
Generally, no second appeal shall lie from the order passed in the appeal under
section 58 but right to appeal to Supreme Court is not barred.

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Conclusion

Recent decisions of the Supreme Court of India show a shift of stance. The attitude
of the higher judiciary in India is taking a positive turn, and they are
approaching international arbitration with caution and pragmatism, in line with
courts in some other parts of the world. How this will filter down to the lower
judiciary in India is yet to be fully tested, however, and parties may yet find
themselves engaged in litigation in the lower courts which must be pursued on
appeal, in order to gain the benefit of this new approach.

The business community also awaits steps from the Indian legislature to amend the
Act, to put an end to the varied interpretations provided over the years by the
Indian judiciary.

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BIBLIOGRAPHY

• A.S.Bell, Forum Shopping and Venue in Transnational Litigation, Oxford Private Int'l L
J., 1-5, (2003).
• Adrian bridggs, the conflict of law, 189 (2nd ed, oxford univ. Press, 2008).
• Pm North & Jj Fawcett, Cheshire and North's Private International Law, LexisNexsis
Butterworths, 605- 614, ( 13TH ED ,1999).
• System des heutigen roemische Rechts (1849), Vol.8, pp. 275. et seq. Or see J.D. Mc
Clean, Morris : The Conflict of Law, 14th Ed, 277-78 (Universal Law Publication, 2004).
[Morris]
• John Humphrey Carlile Morris, The Conflict of Laws, 287, (Stevens, 1971).
• Paras Diwan & Peeyushi Diwan, Private International Law, 551-552, (Deep & Deep
Publications, New Delhi, 1998).
• Ehrenzweig, Treatise on the Conflict of Laws, 211; Currie. Selected Essays on: Conflict
of Laws, Chapter 1
• Lawrence Collins, Essays In International Litigation and The Conflict of Laws, 379-382,
(Oxford University Press, 1996).
• Craig Scott, Torture as Tort: Comparative Perspectives on the Development of
Transnational Human Rights Litigation, 320-21, (Hart Publishing, 2001).
• Joseph H. Beale, Bartolus on the Conflict of Laws, Baker, 287, (Voorhis & Co. 1935).
• Abla J & Licence En Proit, Conflict Of Laws, Ch.6, 93, (Cavendish Pub. Ltd, 2002).
• Jason Chuah & Richard Earle, Statutes and Conventions on Private International Law,
235, (Routledge Cavendish, 2004).

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