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DISPUTE RESOLUTION -
ENFORCEMENT OF FOREIGN ARBITRAL AWARD IN INDIA

LITIGATION - ENFORCEMENT OF FOREIGN ARBITRAL AWARD IN INDIA
INTERNATIONAL ARBITRATION - ENFORCEMENT OF FOREIGN ARBITRAL AWARD IN INDIA
A foreign arbitral award is enforceable in India when on application to the Indian court is made at appropriate jurisdiction and where the court is satisfied that the foreign award is enforceable under chapter 1 of part II of the Arbitration and Conciliation Act, 1996, the award shall be deemed to be a decree of that court.
 
Brus Chambers is a specialised law firm and dispute resolution is within our specialised practice.
 
Brus Chambers has a formidable track record in enforcement of foreign arbitral award dispute resolution with a reputation as a aggressive and result oriented dispute resolution law firm,, is an award winning law firm and is considered to be one of the best law firm of the country by several Independent credential bodies for litigation and arbitration.
 
Ms. Binita Hathi heads dispute  resolution team, other lawyers work alongside with her, 'she is able to present complex matters in a simple way'.

Our firm is recognised and recommended by several international credential bodies as the most effective and result oriented dispute resolution law firm, is preferred by international and local clients.

FAQ'S ON ENFORCEMENT OF ARBITRAL AWARD IN INDIA.

What is the position of a foreign award, after the court is satisfied that the award is enforceable ?
Where the court is satisfied that the foreign award is enforceable under chapter 1 of part II, the award shall be deemed to be a decree of that court. (Section 49)

What are the grounds on which the enforcement of a foreign award may be refused ?
Enforcement of a foreign award may be refused at the request of the party against whom it is invoked, only if that party furnishes to the court proof that –

(a) the parties to the agreement referred to in Section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

However it has been provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where arbitration took place; or

(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

Enforcement of an arbitral award may also be refused if the court finds that –
 
(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or
 
(b) the enforcement of the award would be contrary to the public policy of India.

Explanation – Without prejudice to the generality of clause (b) of this section, it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption.

If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) 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. (Section 48)

What evidence has to be produced at the time of applying for the enforcement of a foreign award ?
The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court–

(a) the original award or a copy thereof, duly authenticated in the manner required the law of the country in which it was made;

(b) the original agreement for arbitration or a duly certified copy thereof; and

(c) such evidence as may be necessary to prove that the award is a foreign award.

If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India. (Section 47)

Is a foreign award within the meaning of New York Convention, binding ?
Any foreign award which would be enforceable under Chapter 1 of Part II shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in Chapter 1 Part II of the said Act of 1996, to enforcing a foreign award shall be construed as including references to relying on an award. (Section 46)

What is a foreign award under the New York Convention Awards ?
Part II of The Arbitration and Conciliation Act, 1996, Chapter 1 deals with New York Convention Awards. Unless the context otherwise requires, ‘foreign award’ means an award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law enforced in India, made on or after 11th October, 1960 –
(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and
(b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to the territories to which the said Convention applies. (Section 44).

The term ‘First Schedule’ refers to the New York Convention on the recognition and enforcement of foreign arbitral awards.

Does the limitation Act apply to an Arbitration?
Yes, the limitation Act 1963 applies to Arbitration as it applies to proceedings to court. For the purposes of limitation Act 1963 the Arbitration shall be dimmed to have commenced on the date on which a request for that dispute to be referred to Arbitration is made and received by the respondent.

Where an Arbitration agreement to submit future dispute to Arbitration provides that any claim to which agreement applies shall be bar unless some step to commence Arbitration is taken within a time fixed by the agreement and a dispute arises to which the agreement applies, the court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and not withstanding that the times of fixed has expired, may on such terms if any as the justice of the case may require, extend the time for such period as it thinks proper.

Where the court orders that the arbitral award be set aside, the period between the commencement of the Arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, for the commencement of the proceedings (including Arbitration) with respect to the dispute so submitted.

Which Court will have Jurisdiction in a case where an application has already been made with respect to an Arbitration agreement?
Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an Arbitration agreement any application under this Part has been made in the court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court. (Section 42)

What is the position in case of insolvency of a party ?
Where the contract so provides and where the receiver in insolvency adopts the contract, the Arbitration agreement shall be enforceable by or against him so far as it relates to any such disputes.

Where a person who has been adjudged an insolvent had, before the commencement of the insolvency proceedings, became a party to an Arbitration agreement, and any matter to which the agreement applies, is required to be determined in connection with, or for the purposes of, the insolvency proceedings, than, any other party or the receiver may apply to the judicial authority having Jurisdiction in the insolvency proceedings, for an order directing that the mattering question shall be submitted to Arbitration and the judicial authority may make an order accordingly. (Section 41) .

Does an Arbitration agreement stand discharge by death of party there to ?
No, and in case of death of the party the same is enforceable by or against the legal representative of the deceased. Similarly the mandate of an Arbitrator shall not be terminated by the death of any party by whom he was appointed.

Nothing is this Section shall affect the operation of any Law by Virtue of which any right of action is extinguished by death of a person. (Section 40).
 

 

 

 

 
 

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