Enforcement of Foreign Awards in India
The Arbitration and Conciliation Act 1996 (hereinafter referred to as The Act) specifically provides for the manner in which a Foreign Award is to be dealt with for the purposes of its enforcement. The Act of 1940 had no such provision.
The Foreign Awards are to be dealt with separately under the New York Convention and the Geneva Convention both of which are dealt with under Chapter I and II of Part II of the Act.
According to Section 44 of Chapter I of the Arbitration and Conciliation Act 1996, Foreign Awards means an arbitral Award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after 11th October 1960 in pursuance of an Agreement in writing for Arbitration. The Award has to be passed in one such territory with which India has a reciprocal treaty. Similar conditions are specified under Section 53 for the Geneva Convention Awards. The said Awards can be executed as if it was a decree passed by the Civil Court of original jurisdiction in India as envisaged under Section 36 of the Act. For execution of the Award the format laid down in Order 21 Rule 11 (2) of the Code of civil Procedure 1908 for execution of decree is required to be followed.
Under Section 48, the Executing Court shall enforce the Award only after it is satisfied that the parties were not under some incapacity, were given proper notice and that the disputes submitted to arbitration were not beyond the scope of Arbitration Agreement.
Section 57 lays down some more conditions while dealing with the Geneva Convention Award, that the Executing Court shall enforce the Award only after it is satisfied that the conditions are fulfilled.
(a) the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;
(b) the subject- matter of the award is capable of settlement by arbitration under the law of India;
(c) the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;
(d) the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;
(e) The enforcement of the award is not contrary to the public policy or the law of India. Without prejudice to the generality of clause 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.
The Party enforcing the Award has to show beyond doubt that the Award has become final in the country in which it was passed.
However, for Awards falling under both the conventions some rules are generally applicable, one of them being that there is no need to take out separate proceedings in the nature of an application for seeking an order from the Court that the Foreign Award can be enforced as a decree of the court and a separate one for execution. The Hon'ble Supreme Court in the case of M/s Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd. AIR 2001 SC 2293 observed that In our opinion, for enforcement of foreign Award there is no need to take separate proceedings , one for deciding the enforceability of the Award to make rule of the Court or decree and the other to take up execution thereafter. In one proceeding , as already above, the Court enforcing the Foreign Award can deal with the entire matter.
In the case of Noy Velessina Engineering Spa Vs. Jindal Drugs Ltd., 2006 (4) Bom CR 155, the Hon'ble Court while considering the observations of the Hon'ble Supreme Court in the case of M/s Fuerst Day Lawson held that From the observations of the Supreme Court quoted above , it is clear that it is not necessary for the person who has foreign Award in his favour to apply for recognition of the Award by the Court separately, he could make application for execution of the Award and in that Application a request for inquiry by the Court as required by the statute to find out whether the Award is enforceable is implicit and the Court in that application can make an inquiry as to the enforceability of the Award and the Court after recording its satisfaction that the Award is enforceable can proceed to execute that Award as if the Award is a decree made by that Court.
No notice is required to be issued to the Judgement Debtor in case the execution /enforcement has been proceeded with within 2 years of the passing of the Award in terms of Order 21 Rule 22 Code of Civil Procedure.
For the New York Convention Awards, incorporated in Section 48 (2) of the Act, enforcement of Arbitral Award may be refused on two grounds:
a)That 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, which means that the making of the Award was induced by fraud or corruption
As per Section 57 (2) of the Act, for the Geneva Convention Awards, the executing Court may refuse to enforce the Award in case:
a)the award has been annulled in the country in which it was made, or
b)the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case, or
c) that, being under a legal incapacity, he was not properly represented or
d) the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration,
Provided that if the award has not covered all the differences submitted to the arbitral tribunal, the Court may, if it thinks fit, postpone such enforcement or grant it subject to such guarantee as the Court may decide.
The Courts can though intervene only to limited extents as stated above and shall not be entitled to go into the merits of the case as the same has not been provided in the scheme of the Act. Some recent judgements as that of ONGC Vs. Saw Pipes (AIR 2003 SC 2629) have held that the Award can be challenged only in case it is contrary to the Public Policy of India which would mean that the Award is against the
(a) fundamental policy of Indian law;
(b) the interest of India; or
(c) justice or morality, or
(d) if it is patently illegal.
In case of a refusal for enforcement an appeal would lie only to the Supreme Court under Article 136 on very limited grounds. This means that no appeal shall lie if the Executing Court approves of the enforcement.
Such decisions by the Courts to limit intervention while executing Foreign Awards and scheme of the Act to make foreign Awards enforceable without much glitches only goes on to affirm what Lord Mustill & Stewart C. Stated in Boyd QC's "Commercial Arbitration" 2001
"Mutual recognition of awards is the glue which holds the international arbitrating community together, and this will only be strong if the enforcing court is willing to trust, as the convention assumes that they will trust, the supervising authorities of the chosen venue.
Therefore for filing of execution for enforcement of foreign Awards passed in a Country with which India has a reciprocal treaty, the procedure is as follows:
File an execution application in the format provided for under the Code of Civil Procedure before the Court of competent Pecuniary jurisdiction
Accompany the same with the certified authenticated copy of the Award. An English translation would be required in case it is in some other language
An application/affidavit required to be filed along with the Execution Application seeking the executing Court to certify that the Award is enforceable in India
Once the Court certifies and is satisfied that the Award is enforceable in India, it shall make the Award a decree of the Court and shall issue warrants of attachment/execution
In cases of execution of such Awards which are not passed in Countries with whom India has a reciprocal treaty, the Award has to be filed as a regular civil suit and the proceedings would be the same as are applicable to a civil suit filed in India.