This article was written by Priyanka Cholera and further updated by Sneha Arora. This article deals with the enforcement of foreign arbitral awards in India while discussing its legal framework, and procedures, as well as the treaties and conventions. It further covers all the definitions and significance of Conventions such as the New York Convention and the Geneva Conventions, and the grounds for enforcement. Furthermore, it explores the power of judicial authorities for the parties of arbitration. The article concludes with some insights into the recent amendments and processing and its improvements in foreign arbitral awards. 

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

In today’s global economy where business transactions transcend national borders, there certainly is a need to embrace robust strategies for addressing cross-border disputes. As connections with other countries grow rapidly through the exchange of values, trends, art, culture, and more, the legal landscape has been changing significantly. In light of this, it becomes important to understand the enforcement of Foreign Arbitral Awards, which plays a significant role for those dealing with the matters of Arbitration and seeking damage claims, while also ensuring compliance with Human rights laws across Nations.

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However, before beginning with foreign arbitral awards, it is very important to know about arbitration. 

Arbitration serves as an alternate dispute resolution mechanism for two parties in a contractual relationship who want to solve disputes without going to court due to cost and time factors. In such cases, they can add an arbitration clause in the contract, which proves to be very helpful in times of dispute.

To understand foreign arbitral awards, one should be able to distinguish between international commercial arbitration and foreign arbitration. 

Arbitration, in India, is governed by the Arbitration and Conciliation Act, 1996 where Section 2(1)(f) defines international commercial arbitration. In other words, it can be understood as an arbitration between two parties, where at least one of the parties is a foreign national, company, or government entity, thereby qualifying as international commercial arbitration. 

Arbitration involves the concept of “seat”, which determines the jurisdiction whose laws apply to the arbitration proceedings. For example, if arbitration occurs between a foreign company and an Indian company with that in India, then it constitutes international commercial arbitration. Conversely, if the seat is outside India, i.e., governed by foreign laws of arbitration, then it will be a foreign arbitration.

What are foreign arbitral awards                                            

Foreign arbitral awards, being closely associated with arbitration, can be defined as awards issued in foreign jurisdictions. Typically, these awards stem from the proceedings held in foreign arbitral tribunals and need to be recognized as “foreign signs”. They are governed by various international treaties, conventions, and respective national laws to ensure uniformity and predictability in their recognition and enforcement on a global scale. 

To maintain international standards in arbitration law and enforce foreign arbitral awards, domestic arbitration and international commercial arbitration laws have been introduced, modified, and amended as needed. It ensures that arbitration laws remain effective and efficient in meeting present requirements. 

Foreign arbitral awards specifically refer to those arbitral awards that are issued in a country other than where the enforcement takes place. These awards are internationally recognizable and are subject to specific legal structures and frameworks for enforcement. They fall under the purview of various laws, specific legislations, and international conventions to facilitate their recognition and application across borders. With regard to India, the Arbitration and Conciliation Act, 1996 defines “foreign award” under Section 44 of Arbitration and Conciliation Act.

Foreign arbitral awards play a crucial role in international arbitration, expediting the dispute resolution process between parties from different nations while adhering to legal conventions and frameworks.

The term “foreign arbitral awards” specifically refers to the award issued through foreign arbitration, which is distinct from domestic arbitration. In the case of Serajuddin and Co. v. Michael Golodetz and Others, (1959) the Calcutta High Court elucidated necessary restrictions and conditions aligning with the term “foreign arbitration”. The court laid down certain essentials for what constitutes a foreign arbitration. According to this decision, arbitration will be considered to be foreign arbitration, if: 

  1. a foreign party is involved,
  2. arbitration is held in a foreign land,
  3. arbitration is conducted by foreign arbitrators, and
  4. foreign laws are applied to the arbitration. 

Enforcement vs. recognition of foreign arbitral awards

While we are on foreign arbitral awards, it also becomes necessary to understand the distinction between the terms “enforcement” and “recognition” in the context of foreign arbitral awards. This distinction is crucial because it helps in the clarification of legal processes, risk assessment, and decision-making, especially for parties involved in international arbitration and cross-border dispute resolution, and legal practitioners and arbitrators. By understanding the difference between these two terms and their practical implications, the parties can streamline and expedite the dispute resolution process. 

The term “recognition” is defensive and secures the arbitral awards between the same parties, of the same/similar nature, and under the same convention. In other words, the contesting party may seek the recognition of the arbitral award to set off any other claim of arbitration involving those parties with whom the disputes have already been settled or resolved. 

“Enforcement”, on the other hand, is of an offensive structure and nature. Over here, the party seeking the arbitral award not only inducts for the intention of recognition of the award but also intends for its enforcement by the method of legal sanctions.

In the case of Brace Transport Corpn. of Monrovia v. Orient Middle East Lines Ltd. (1993), the Supreme Court of India held that an award may be enforced without getting recognition. However, once it is enforced, its recognition inherently follows. Therefore, both “enforcement” and “recognition” are two sides of the same coin. They are contemporaries and act in tandem with each other. 

Enforcement of foreign arbitral awards in India

The enforcement of arbitral awards involves two primary aspects: domestic awards, governed by Section 36 of Part I of the Arbitration and Conciliation Act, 1996, and foreign arbitral awards, which are recognized and enforced through two avenues: the New York Convention, outlined in Chapter I of Part II of the Arbitration and Conciliation Act, 1996, and the Geneva Convention, specified in Chapter II of Part II of the Arbitration and Conciliation Act, 1996.

When the arbitral award from one country is recognized and enforced in another, this involvement is considered as the enforcement of foreign arbitral awards. 

The origins of the present law can be traced back to the provisions of the Arbitration (Protocol and Convention) Act, 1937, and the Foreign Awards (Recognition and Enforcement) Act, 1961. Both are repealed by the Arbitration and Conciliation Act, 1996. These have been incorporated or referenced in Part II of the 1996 Act. Over time, there have been many amendments and deletions to align with international protocols such as the Geneva Protocol of the Arbitration Clauses, 1923 and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. 

Enforcement of foreign arbitral awards under the New York Convention 

Chapter I of Part II of the Arbitration and Conciliation Act, 1996 deals with the enforcement of New York Convention Awards. From Sections 44 to 52, this chapter essentially outlines the conditions under which a foreign award is recognized and enforced in accordance with the New York Convention.

Definition of a foreign award

The foreign award is an arbitration settling disputes between those parties arising out of the legal relationship, whether contractual or not, to be considered as commercial under law. 

Thereby, the definitions outline two essential conditions for the Enforcement of Foreign Arbitral Awards under New York Convention : Firstly, the country 

. 

According to the Supreme Court of India, the term “commercial” encompasses various activities structured towards international trade. This interpretation was elucidated in R.M. Investments & Trading Co. Pvt. Ltd. v. Boeing Co (1994) wherein the Court stated that the Arbitration Act was enacted to facilitate international trade through a speedy redressal of disputes, therefore, the meaning of terms like “commercial” occurring in the Act should be given a “liberal construction”.

Power of judicial authority to refer parties to arbitration 

Section 45, essentially outlines that the parties who are under the contract or agreement to resolve the dispute through Arbitration, and if one party asks for it, a judicial authority must refer to the dispute through the way of Arbitration. It establishes that the courts have the power to refer parties to arbitration only when the agreement that contains the arbitration clause is not “null and void”, “inoperative”, or “incapable of being performed”. 

Evidence

Section 47 lists the evidence to be presented before the court by the party seeking the enforcement of a foreign arbitral award. Such evidence must be produced at the time of application and must include:

  1. Original award or its duly authenticated copy;
  2. Original arbitration agreement or its duly certified copy;
  3. Any evidence of relevance that can show that the award in question is foreign; and
  4. A certified copy of the award and/or agreement translated into English if the award or agreement is in a foreign language.

Other provisions

Section 46 states that the foreign arbitral awards enforceable under Chapter I of Part II of the Arbitration and Conciliation Act are binding in nature. They are binding against the parties between whom it was made and can be used by them in any legal proceedings taking place in India as a defence, set off, or otherwise. Section 48 lists the conditions for the enforcement of foreign arbitral awards, which are the situations when the enforcement of a foreign arbitral award in India can be refused. This article will discuss this provision in detail later on. Furthermore, Section 49 allows for a foreign arbitral award to be treated as the court’s decree if the said court is satisfied with respect to the enforceability of the foreign award in question. 

Enforcement of foreign arbitral awards under the Geneva Convention 

Chapter II of Part II of the Arbitration and Conciliation Act deals with the avenue of enforcement of the Geneva Convention Awards. This Chapter comprises Sections 53 to 60, which incorporate the principles of enforcement as laid down in the Geneva Convention.

It involves the recognition and enforcement of arbitral awards made in accordance with an arbitration agreement governed by the Geneva Convention. The conditions for recognition of such an award are:

  • Validity under applicable law,
  • Potential for arbitration settlement,
  • Finality in the country of origin, and 
  • Abidance with public policy

As per this Convention, enforcement of such awards may be refused if the award is annulled in the country of origin or if the notice of representation to the parties against whom enforcement is sought is not clear and proper.

The Convention also mandates the submission of certain important documentation, such as authenticated awards, for the purpose of enforcement of such awards. 

Ultimately, the purpose of the enforcement of foreign arbitral awards under the Geneva Convention of 1927 is to ensure that the arbitral awards made in pursuance of an agreement are recognized and enforced as per the procedural rules established in the territory where enforcement is sought. The Convention serves as a framework for the recognition and enforcement of foreign arbitral awards, promoting legal standards and fostering international arbitration. 

Foreign arbitral awards under the Geneva Convention

According to Section 53, of Geneva Protocol  the three essential requirements for the enforcement of a foreign arbitral award are:

  1. The award is based on an arbitration agreement that falls under the Geneva Protocol on Arbitration Clauses, 1923;
  2. The award involves parties who come under the jurisdiction of territories designated as “reciprocating” by the Central Government and where the Geneva Convention on the Execution of Foreign Arbitral Awards is applicable; and
  3. The award in question is issued in a reciprocating territory recognized by the Central Government.

What to submit

According to Section 56, the party that seeks the enforcement of a foreign arbitral award under the Geneva Convention in India is required to submit the following:

  1. Original award or its duly authenticated copy;
  2. Evidence to show that the award is final;
  3. Evidence proving that the award was issued based on a valid arbitration agreement and by the arbitral tribunal specified in the agreement or as agreed upon by the parties under the applicable laws; and 
  4. A certified copy of the award and/or agreement translated into English if the award or agreement is in a foreign language. 

Conditions for enforcement

Section 57 enlists the conditions necessary for the enforcement of foreign arbitral awards under the Geneva Convention. They are as follows:

  1. The award must have been issued based on an arbitration agreement valid under the relevant laws;
  2. The subject matter of the award must be one that can be resolved through arbitration under Indian law;
  3. The award must be issued by the arbitral tribunal specified in the arbitral agreement or agreed upon by both parties;
  4. The award must be final in the country where it was issued, meaning there are no appeals or challenges to such award pending; and
  5. The enforcement of the award must not be against “public policy” under Indian laws.

Refusal of enforcement of foreign arbitral awards in India

In India, the enforcement of foreign arbitral awards has undergone significant motions in recent years, marked by several improvements. There has been a pro-enforcement stance towards foreign arbitral awards to ensure consistency, with a keen focus on upholding values and principles associated with them. 

The real power to set aside foreign arbitral awards lies with the court at the seat of arbitration, rather than of the court that enforces the award. A recent decision of the Supreme Court highlights the judiciary’s commitment to enforcing foreign arbitral awards within a narrow scope, restricting parties from obstructing the enforcement through multiple dimensions and issues. The Amendments made to the Arbitration and Conciliation Act,1996  in 2015 have enhanced the avenues provided by the New York Convention and the Geneva Convention, along with specifying conditions and grounds for challenging the enforcement. 

Ultimately, India has made significant strides to streamline and align the process of enforcing foreign arbitral awards with arbitration-friendly outcomes, along with maintaining a balance between enforcement procedures and limited intervention.

In India, the enforcement of foreign arbitral awards may be refused if it is contrary to the fundamental policies of Indian law. There are several grounds outlined in the Arbitration and Conciliation Act, 1996 under which the enforcement of foreign arbitral awards can be refused.

Grounds of refusal under the New York Convention

Section 48 of the Arbitration and Conciliation Act sets forth the grounds for the instances when Indian courts can refuse the enforcement of foreign arbitral awards. These conditions can also be understood as defences available to the party who is opposing the enforcement of the foreign award in question.

The court cannot go into the merits of the case, therefore, the scope of interference in foreign arbitral awards is very limited. The grounds for enforcement and its refusal can be better explained through the arbitration proceedings that took place in White Industries Australia Limited v. Republic of India (2011).

There were arbitration proceedings between an Australian company named White Industries Limited and an Indian company called Coal India (which previously held a monopoly over coal mining in India before the present government). White Industries was awarded in their favour, and they sought to enforce the award in India. Indian lawyers are infamous for delaying proceedings and thus, the White Industries case was not spared. It dragged on for 10 to 11 years. After exhausting all avenues and facing frustration, Australia commenced proceedings against India in an ad-hoc tribunal per the rules of UNCITRAL Arbitration Rules, 1976. 

Australia contended that by unnecessarily delaying the enforcement India was in breach of “fair and equitable treatment”. The government of India responded that it cannot be held responsible for the decision regarding the ICC arbitral award. However, the ad-hoc arbitral tribunal imposed a 4 million-dollar penalty on India, citing delays in the justice system as grounds for violating Australia’s status as the most favoured nation. 

This incident was highly criticised by The Economist, as such occurrences cast India in a very bad light while it was trying to attract foreign investment. This incident led to the 2015 Amendment to the Arbitration and Conciliation Act, 1996. 

The scope of Section 48(1) of Arbitration  has significantly narrowed, leaving only five conditions for refusing the enforcement of foreign arbitral awards. 

Section 48(2) of arbitration  talks about the refusal of enforcement of foreign arbitral awards on the grounds of subject matter or public policy. Earlier, public policy has been used as a tool for striking any award at one’s will, but after the 2015 Amendment, the explanation has become more specific regarding what it means by “public policy”. The amendment talks about that in no way, an award can be refused solely based on the merits of the case, as they have already been decided.

Section 48(2)(a) outlines provisions concerning disputes over subject matter. It states that the enforcement can be refused if the subject matter of the dispute is not capable of settlement by arbitration under Indian law. Thus, it is very important to know what are the subjects of difference covered under this provision.

The cases of Booz-Allen & Hamilton Inc. v. SBI Home Finance Limited and Others (2011) and A. Ayyasamy v. A. Paramasivam & Others (2016) can be referenced to list several subjects that the Supreme Court recognized to be outside the ambit of arbitration or non-arbitrable: 

  • Disputes related to rights and liabilities that lead to or are caused by criminal offences;
  • Matrimonial disputes, including restitution of conjugal rights, judicial separation, divorce, child custody, etc.;
  • Matters of guardianship;
  • Matters of insolvency and winding up;
  • Testamentary matters, such as grant of probate;
  • Matters of eviction or tenancy;
  • Mortgage
  • Anti-trust and competition laws
  • Copyright, patent, and trademark;
  • Fraud, bribery, etc.

The above list is not exhaustive; it provides a general overview of subjects that cannot be settled by arbitration under Indian laws.

Section 48(2)(b) addressed refusal based on “public policy”, a concept that opens Pandora’s box due to its plethora of interpretations.

The landmark case of Renusagar Power Co. Ltd v. General Electric Co. (1993) remains relevant even in light of the recent amendments to the Arbitration Act. The decision in this case outlined three conditions for the non-enforcement of a foreign award on the grounds of public policy, which are as follows: 

  • If the award is contrary to fundamental policy;
  • If it violates the interest of India; and
  • If it is against the basic notion of justice and morality.

A similarity to the above decision can be found in the latest amendments to Section 48.

The Renusagar case was also referenced in Shri Lal Mahal Ltd v. Progetto Grano Spa (2013) wherein the Apex Court contemplated on Section 48(2)(b) of the 1996 Act and held that the enforcement of foreign arbitral awards can be refused if it is contrary to the fundamental policy of Indian law. Furthermore, the Apex court observed that the term “public policy” as in Section 7(1)(b)(ii) of foreign award act of the Foreign Awards Act refers to the public policy of India. 

This interpretation sheds light on the concept of enforcing foreign arbitral awards and the grounds for refusal, especially when they are contrary to the public policy of India as elucidated in the Renusagar case. However, both Section 34(2)(b)(ii) and Section 48(2)(b) employ the term “public policy in India”, indicating a similar nature but differing in degree so far as their application is concerned. 

Before that, in Open Sea Maritimes Inc. v. R. Pyarelal International Pvt. Ltd. (1998), the Bombay High Court observed that when petitioners filed a suit in the Bombay High Court on the original side, covering the same nature and subject matter as the arbitration, it amounted to fraud. As a result, the enforcement of the award was deemed contrary to the public policy of the country. 

Another case that proved to be instrumental in shaping the 2015 Amendment was ONGC Ltd v. Western Geco International Ltd (2014), where the Wednesbury principle i.e., the test of reasonableness was applied. According to this principle, actions or awards that lack reasonableness, as judged by a reasonable person, cannot be enforced in India. However, the 2015 Amendment set aside the Wednesbury principle, and later on, it was admitted that the Western Geco decision was erroneous.

Grounds of refusal of foreign arbitral awards under the Geneva Convention 

Section 57 of Geneva  lays down the conditions that are essential for the enforcement of a foreign arbitral award under the Geneva Convention. The enforcement can be refused if any of these conditions specified in Section 57(1) of arbitration  are not met. Additionally, Section 57(2)  states that even though the conditions specified in Sub-section (1) are fulfilled, the court can still refuse the enforcement of foreign arbitral awards if the court is satisfied that party against whom enforcement is sought was not timely notified of the arbitration proceedings preventing them from presenting their case, or if due to some legal incapacity, they were not represented properly;

  1. The award does not address the issues agreed upon for arbitration by the parties or the award makes decisions on issues that were not a part of the arbitration agreement. 

In Se Se Oil v. Gorakhram Gokalchand (1960), it was held that Sections 57(1) and 57(2) provide the grounds that must be complied with before the enforcement of foreign arbitral awards in India. The party seeking the enforcement of foreign arbitral awards must satisfy the burden of proof on these grounds. Additionally, Section 57(3) confers the power on the court to refuse the enforcement of foreign arbitral awards on the grounds specified therein, considering the objections raised by the party opposing the enforcement of foreign arbitral awards.

In Società Anonmina Lucchesse Qlli E. Vini Lucca v. Gorakharam Gokalchand (1963), the Madras High Court held that if the contract is illegal, the award provided by the Tribunal in the pursuance of the arbitration clause will not be enforceable.

Appropriate court 

Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 defines the term “court”, which was clarified after the 2015 Amendment that the High Court is the appropriate authority to approach for enforcement of foreign arbitral awards. Under Section 47 the party applying for the enforcement of the foreign arbitral awards must provide the original award, agreement, and other relevant documents at the time of application.  

In India, the appropriate court for the enforcement of foreign arbitral awards is the High Court of the respective states. The process typically has two stages: filing an application under Section 48 or Section 59 of the Arbitration and Conciliation Act, 1996. The Court may order the execution similar to the decree only in the case if the award is declared enforceable. 

Timeline for enforcement of foreign arbitral awards in India 

The timeline for the enforcement of foreign arbitral awards in India is categorised as under:

  • Upon receiving the award, the party must wait for 3 months for the application and execution to take place. During this time, the award may be challenged under Section 34 of the Arbitration and Conciliation Act, 1996. After the elapse of this period, if the court agrees to enforce the award, no further challenges or refusals can be made during the execution stage. 
  • Within 3 years, the application for the enforcement and the recognition of the foreign arbitral awards must be filed, as clarified by the Supreme Court regarding Article 137 of the Schedule to the Limitation Act, 1963. Although the Arbitration Act does not establish or specify any time limit for the enforcement of foreign arbitral awards, the Supreme Court’s guideline of the 3-year period must be adhered to. 

In the recent case of P.E.C. Limited v. Austbulk Shipping (2018), the Court said that the term “shall” in Section 47(1) should be replaced with “may”, indicating a pro-arbitration stance. It reflects that the court has the power to refuse the enforcement under specific circumstances, ensuring that once satisfied, a foreign award is deemed a decree of the domestic court. 

Limitation period for enforcement of foreign arbitral awards

The decision in M/S Fuerst Day Lawson Ltd v. Jindal Exports Ltd. (2001) cleared the air that the foreign award holds the status of a decree itself and hence is capable of enforcement. Under the Limitation Act, Article 136 of the Schedule applies to the enforcement of decrees, with the limitation period being 12 years from the date of the decree.

However, in a recent judgment in the case of Bank of Baroda v. Kotak Mahindra Bank (2020), it was ruled that for foreign decrees (which are issued by foreign courts) to be enforced, Article 136 does not apply; instead, Article 137 is applicable (it is the residuary provision which says that when no other limitation is prescribed limitation of 3 years will apply).

The above-discussed judgment has created confusion because foreign arbitral awards are considered to be decrees. Hence, there are opinions that since a foreign award is considered to be a decree, it should also have a limitation period of 3 years.

Relevant case laws on enforcement of foreign arbitral awards in India

Enforcement of foreign arbitral awards in India is governed by the Arbitration and Conciliation Act of 1996, which distinguishes between the New York Convention and the Geneva Convention. The Act outlines a carefully designed and regulated process that grants recognition to foreign arbitral awards by Indian courts. 

Here are some of the relevant cases as such: 

  • Government of India v. Vedanta Ltd & Others (2020): The decision in this case emphasises the significant pro-enforcement trend, urging the courts not to refrain from enforcing the arbitral awards.
  • In NAFED v. Alimenta S.A. (2020), the Supreme Court ruled that for a foreign award to be unenforceable, it must pertain to a transaction that would have violated Indian laws, and was therefore in contradiction to the public policy of India. 
  • In the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2011), it was held by the Supreme Court that once a foreign award is deemed enforceable, there is no requirement to make the foreign arbitral  awards a rule of the court.
  • In the landmark case of Bhatia International v. Bulk Trading S.A. & Another (2002),  the Supreme Court held that those awards which are not made in the Convention country cannot be recognised as a foreign arbitral award, and to enforce an award in a non-Convention country, a separate action has to be filed. Thus, it was held that all those awards that are not made in the Convention country are to be enforced by the process of filing another suit on the set grounds.
  • The Supreme Court in R. Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid (1962) observed that if the court fails to fulfil the minimum requirements of natural justice or if the foreign court was under coercion while issuing the judgment, so, in such conditions, the court can refuse to enforce the foreign arbitral awards.
  • In Serajuddin & Co. v. Michael Golodetz (1959), the Calcutta High Court clarified that the expression “foreign arbitration” includes arbitrations conducted in countries that are not a party to the Geneva Convention, and the awards resulting from such arbitrations would also be considered to be enforceable. The court examined various decisions and policies related to the usage of terminologies like “foreign arbitration” and “foreign arbitral awards”. It concluded that these terms are typically used with regard to the following: 
  1. Arbitrations in foreign lands; 
  2. Foreign arbitrators; 
  3. Foreign nationals; and 
  4. Application of foreign laws. 

The court further observed that the definition of arbitration provisions, though not exhaustive, provides a certain class of such clauses that have also been used by the countries that have ratified the Geneva Convention. In the present case, one party was Indian and the other was American. The court determined that all the conditions as to the characteristics mentioned in the foreign arbitration were satisfied, even though the case did not fall under the ambit of the Indian Arbitration Act, 1937, or the American laws.

Conclusion

In conclusion, the enforcement of foreign arbitral awards plays a pivotal role in resolving international disputes and promoting cross-border business transactions. India through the recognition and enforcement of foreign arbitral awards demonstrates its dedication to upholding its commitment towards the international Conventions and legal frameworks, ensuring that parties from different nations can effectively seek timely resolution of their disputes. The Arbitration and Conciliation Act, 1996, along with the avenues provided by the New York Convention and the Geneva Convention, set forth a legal structure for the recognition and enforcement of foreign arbitral awards in India. It is of vital importance for individuals and businesses involved in international arbitration to follow and work as per the procedural setup, limitations, and adapt to the recent development in this area.

Overall, foreign arbitral awards play a significant role in maintaining the reliability and efficiency of mechanisms for resolving cross-border disputes, thereby contributing to both national and global peace.

Frequently Asked Questions (FAQs)

Can patent illegality be a ground for the arbitral award being unenforceable?

Patent illegality is a recognized ground for domestic awards, but not a ground for challenging the enforcement of foreign arbitral awards under the current law on arbitration. However, it can still be challenged on other grounds such as public policy.

Does a foreign award need to be stamped and registered to be enforced?

No, foreign arbitral awards do not need to be stamped and registered to be enforced. The Supreme Court categorically stated so in M/S Shriram EPC Limited v. Rioglass Solar (2018). Several other judgments support the notion that registration is not necessary for enforcing a foreign award. 

What is the distinction between a foreign judgment and foreign arbitral awards? 

A foreign judgment is a ruling or decision issued by a foreign court typically in civil or criminal proceedings whereas a foreign arbitral award is issued by an arbitral tribunal in arbitration proceedings. Foreign arbitral awards are enforced in India as per the provisions of the Arbitration and Conciliation Act, 1996 while foreign judgments are enforced through a separate legal process governed by the Code of Civil Procedure, 1908. 

What role does the High Court play in the enforcement of foreign arbitral awards in India? 

The High Court plays a pivotal role in the enforcement of foreign arbitral awards in India by examining the validity and enforceability of such awards under the Arbitration and Conciliation Act, 1996. Based on certain grounds, the High Court has the authority to recognise and enforce foreign arbitral awards. 

What remedies are available for the affected party when the enforcement of the foreign award is refused by the courts? 

Parties whose foreign arbitral awards have been refused in India can seek remedies under Section 57 of the Arbitration and Conciliation Act, 1996, which delineates specific conditions for the same. Recent judicial decisions favour enforcement with the grounds for refusal being limited.

References

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