ENFORCEMENT OF ARBITRAL AWARDS PASSED BY UAE IN INDIA: HAS

INDIA FORGOTTEN
ABSTRACT:
This article examines the challenges and uncertainties surrounding the enforcement of UAE
arbitral awards in India. It highlights the recent notification issued by the Indian government
on the enforcement of UAE arbitral awards and identifies key ambiguities and gaps that still
exist. The analysis explores the requirement of a certificate of executability, the enforcement
of DIFC awards, the definition of a "foreign award" and reciprocity issues, and the
discretionary nature of reciprocity under the Indian Arbitration Act. The author proposes
potential solutions, including clarifying the notification's application, expanding its scope,
and considering the adoption of legislation equivalent to the UNCITRAL Model Law.
BACKGROUND:
The bilateral relations between India and the United Arab Emirates (UAE) have experienced
significant growth in recent years, with both countries aiming to strengthen their economic
ties. However, amidst this positive momentum, it appears that India may have overlooked an
important aspect: the enforcement of arbitral awards issued in the UAE. This article will shed
light on this issue and propose a potential method to address the enforcement gap.
While tracing the development of the enforcement and recognition of foreign arbitral awards
in India, two statutes were significant. The first is the Arbitration (Protocol and Convention)
Act, 1937, and the second is the Foreign Awards (Recognition and Enforcement) Act, 1961.
In India, the enforcement of foreign arbitral awards is governed by Part II of the Indian
Arbitration and Conciliation Act, 1996 (Arbitration Act). For a foreign award to be enforced
in India, it must qualify as a New York Convention award and fulfill certain conditions
stipulated in Section 44 of the Arbitration Act.
On January 17, 2020, the Indian Central Government declared the UAE as a reciprocating
territory under Section 44A of the Code of Civil Procedure, 1908 (CPC). This status enables
foreign decree holders to enforce their decrees in India, subject to limited grounds outlined in
Section 13 of the CPC. However, it is crucial to note that this provision only applies to the
enforcement of decrees/orders, and it does not alter the enforcement status of arbitral awards
issued by Arbitral Tribunals seated in the UAE. Consequently, the position regarding the
enforcement of UAE-seated arbitration awards remains unaffected by the reciprocating
territory declaration. This oversight creates a potential gap in the enforcement regime and
may pose challenges for parties seeking to enforce UAE-seated arbitral awards in India. 1
UNRAVELING AMBIGUITES: The Notification on Enforcement of UAE Arbitral
Awards in India
The recent notification by the Indian government regarding the enforcement of UAE arbitral
awards in India has raised some uncertainties.

1
Sumeet Lall, Sidhant Kapoor ‘Dawn of a Golden Era: UAE declared as a Reciprocating Territory by Indian
government’ Bar and Bench (2020) https://www.barandbench.com/columns/dawn-of-a-golden-era-uae-
declared-as-a-reciprocating-territory-by-indian-government
1. Prospective or Retrospective Application: It could be argued that the notification falls
within the realm of procedural matters. In general, procedural laws are deemed to apply
retrospectively, meaning they govern both pending and future cases. However, the
notification itself does not explicitly state its prospective or retrospective application. This
lack of clarity leaves room for interpretation and potential disputes regarding the timeline of
its applicability.
2. Potential Litigation for Decree Holders: The notification only covers enforcement under
Section 44A of the Code of Civil Procedure, which pertains to the enforcement of decrees
and orders. Decree holders who obtained favorable judgments from UAE courts not included
in the notification may face a potential challenge in enforcing their decrees in India. This
situation could lead to additional litigation for those decree holders seeking enforcement, as
they may need to rely on alternative avenues or seek clarification from the Indian courts.
3. Limitation Period for Decree Holders: The Indian Limitation Act prescribes a three-year
limitation period for enforcing decrees from the date of default. The notification does not
explicitly address the impact on decree holders whose decrees were passed more than three
years ago. This raises a question about whether such decree holders can now invoke the
notification and utilize the provisions of Section 44A of the Code to enforce their older
decrees. The position on this matter remains uncertain and may require clarification from the
Indian judiciary.
4. Seeking Rule of the Court Declaration: Can arbitral award holders approach the
appropriate courts in UAE to get their awards declared as a Rule of the Court for subsequent
enforcement in India?2
While the recent notification addresses certain aspects of the enforcement of UAE decrees in
India, it leaves several obscurities that require further clarification. The prospective or
retrospective application, the situation for decree holders not covered by the notification, the
limitation period for older decrees, and the process of obtaining a Rule of the Court
declaration in the UAE all contribute to the complexity and potential litigation in the
enforcement of UAE arbitral awards in India
CHALLENGES AHEAD:
The challenges pertaining to the enforcement of UAE arbitration awards in India , can be
explained as follows, taking into account the recent notification of 17 January 2020:
1. Requirement of Certificate of Executability: According to Article XXV of the
Bilateral Treaty between India and the UAE, a certificate from the competent judicial
authority in the requesting state is required to confirm the executability of the
arbitration award. However, since the UAE does not have legislation equivalent to the
UNCITRAL Model Law (except in the DIFC and ADGM), arbitration awards would
typically need to be executed through UAE courts under Article 213 of the UAE Civil
Procedure Code. This poses a challenge for parties seeking enforcement in India, as
the process for enforcing UAE decrees in India is considered unsatisfactory.
2. Enforcement of DIFC Awards: In the case of DIFC awards, parties seeking
enforcement in India can obtain an "enforcement letter" from the DIFC Courts under
2
Ibid
 specific rules. However, the enforcement procedure for ADGM awards remains
unclear as the relevant Practice Direction has not been issued yet. This uncertainty
adds complexity to the enforcement process, particularly when seeking enforcement
in India.
3. Definition of "Foreign Award" and Reciprocity: The Indian Arbitration and
Conciliation Act of 1996 defines a "foreign award" under Section 44 as an award that
falls under the New York Convention and is issued in territories notified by the Indian
government. While India has notified the UAE as a "reciprocating territory" under
Section 44, the argument arises as to whether the Bilateral Treaty itself establishes
reciprocity, rendering the application of the New York Convention unnecessary. This
argument requires Indian courts to adopt a purposive interpretation of Sections 44 and
47, which may not be straightforward.
4. Discretionary Reciprocity and Constitutional Implications: Section 44(b) of the 1996
Act, which provides for "discretionary reciprocity," is seen as a potential breach of the
New York Convention. The Ministry of Law and Justice's failure to address this issue
may fall into a constitutional gray area. While Indian courts have the power to issue
writs of mandamus to compel the executive branch to act, they generally do not do so
when the act in question is discretionary. The discretionary language used in Section
44(b) may be interpreted by Indian courts as placing the government's notification
obligation outside their writ jurisdiction.3
Although the issues appear to be "legal" ones, the most effective solutions lie in the political
sphere. The tools available to lawyers and the courts are limited, but there appears to be
significant room for judicial creativity to ensure that justice is done until these administrative
notifications are issued.
ANALYSIS BY THE AUTHOR:

Enforcement of Arbitral Awards by UAE in India has been a subject of challenges and uncertainties.
The recent notification provided on 17 January 2020 has attempted to address some of these issues,
but several ambiguities and gaps remain.

The enforcement regime for foreign arbitral awards in India is governed by the Arbitration
and Conciliation Act, 1996. For a foreign award to be enforceable in India, it must meet the
criteria of being a New York Convention award and satisfy the conditions outlined in Section
44 of the Arbitration Act. However, the enforcement of UAE-seated arbitral awards in India
has posed challenges due to the absence of specific provisions and inconsistencies in the legal
framework.
The recent notification declaring the UAE as a reciprocating territory under Section 44A of
the Code of Civil Procedure has brought some clarity. This provision enables the enforcement
of decrees and orders from the UAE in India, subject to certain limitations. However, it does
not address the enforcement status of UAE-seated arbitral awards. This omission creates a
gap in the enforcement regime and raises concerns for parties seeking to enforce UAE arbitral
awards in India.

3
Hari Krishna ‘How do you enforce a UAE judgment or arbitration award in India? Nimble Legal (2017)
One of the key challenges is the requirement of a certificate of executability under Article
XXV of the Bilateral Treaty between India and the UAE. In the absence of legislation
equivalent to the UNCITRAL Model Law in the UAE (except in the DIFC and ADGM),
arbitration awards typically need to be executed through UAE courts. This presents
difficulties for parties seeking enforcement in India as the process for enforcing UAE decrees
in India is considered unsatisfactory.
The enforcement of DIFC awards also presents uncertainties. While parties seeking
enforcement in India can obtain an "enforcement letter" from the DIFC Courts, the procedure
for ADGM awards remains unclear as the relevant Practice Direction has not been issued.
This lack of clarity adds complexity to the enforcement process, particularly when seeking
enforcement in India.
The definition of a "foreign award" under Section 44 of the Arbitration Act and the
requirement of reciprocity further complicate the enforcement of UAE arbitral awards in
India. Although India has notified the UAE as a reciprocating territory, the question arises as
to whether the Bilateral Treaty itself establishes reciprocity, rendering the application of the
New York Convention unnecessary. This interpretation requires Indian courts to adopt a
purposive approach and may not be straightforward.
Another challenge arises from the discretionary nature of reciprocity under Section 44(b) of
the Arbitration Act. This provision, which allows the government to notify territories to
which the New York Convention applies at its discretion, raises constitutional implications
and potential conflicts with the New York Convention's non-discriminatory principle. The
discretionary language used in the provision may limit the writ jurisdiction of Indian courts to
compel the government to enforce arbitral awards from specific member states.
To address these challenges, a comprehensive approach is required. First, the notification on
the enforcement of UAE arbitral awards should provide clarity on its prospective or
retrospective application. This will avoid disputes regarding the timeline of its applicability.
Second, the notification should be expanded to cover the enforcement of UAE-seated arbitral
awards under Section 44A of the Code of Civil Procedure. This would fill the existing gap
and provide a clear framework for enforcement.
Furthermore, India should consider adopting legislation equivalent to the UNCITRAL Model
Law, or at least extend the applicability of the Model Law to the entire UAE jurisdiction,
beyond the DIFC and ADGM. This would streamline the enforcement process and ensure
consistency in the treatment of UAE arbitral awards in India.