Professional Documents
Culture Documents
ENFORCEMENT OF
FOREIGN
ARBITRAL AWARDS
CONCLUSION
BIBLIOGRAPHY
INTRODUCTION
enactments viz.
It was widely felt that the 1940 act, which contained the general laws
trade and commerce and expert of the field of arbitration had experts
also recognized that our economic reforms may not become fully
reforms.
Further, the award must have been made in the country that has ratified
them. The Geneva convention had has ceased to apply those awards to
The arbitration (protocol and convention) act, 1937 came into effect on
4th march 1937 and provided for the enforcement of foreign arbitral
came into force on 30th November, 1961, had been enacted pursuant to
the New York convention of 1958 and it prescribed the law and
procedure for the enforcement of foreign awards in India to which they
has recommended that all countries give due consideration to the said
practice.
An important feature of the said UNCITRAL model law and rules is that
universal application.
Though the said UNCITRAL model law and rules are intended to deal
Part [2] of the new 1996 act which maintains the same scheme for
parties as held in
The essence of arbitration is that the arbitrator decides the case and his
outside India
Section 2(7) of the 1996 act states that an arbitral award made under
\Part [1] of the act shall be considered as a domestic award. Section 2(2)
mandates that Part [1] shall apply where place of arbitration is in India.
India, Part [1] shall not apply to such arbitration. Thus an award
The Supreme Court held that the provisions of Part [1] would apply even
INDIAN RESERVATIONS
India has made two reservations while ratifying the conventions namely,
bound by contract.
and 1961 provided that the government of India would notify the names
of the countries to which the conventions would apply and also the
The second reservation was that the India would apply the convention
relationship takes place within its ambit all relationship which arises out
international trade in all its form between the different states. Courts
have interpreted the term ‘commercial dispute’ under the two acts, in
It has been held that the provisions of the conventions and implementing
1937 and 1961 acts earlier and the 1996 act now are designed to sub
law as settled by the courts in the following cases is relevant even today
Vs.
BOEING &CO.
It was held that consultancy services for the promotions of the sales of
INVEST IMPORT,
It was held that a party from a country which has not ratified the New
benefit from the court under any enactment, made on the basis of the
conventions.
contravention of the public policy may not attract the bar. It may not be
morality.
CLAUSE (f) of sub section [1] of section 2 of the 1996 act defines
of India
goods by road, rail, air and waterways, contracts, banking, insurance, etc
commercial intercourse.
On the above logic, the Supreme Court ruled that a consultancy services
which will have jurisdiction over the subject matter of the award.
suit between the applicant as plaintiff and the other parties are
The various high courts, including the Bombay and Calcutta, have
and Enforcement) Act, 1961 its not available when the arbitration clause
DONOT APPLY
The awards which are made in the countries that are not a party to
apply.
was made.
India.
1996, mean an award under the act while section 49 of the act
where the court is satisfied that the foreign award is enforceable, there
refusing to:-
Such appeal should lie in the court authorized to hear appeal from the
LAWS
which neither the arbitration act nor the conventions will apply. Its
PROCEDURAL LAWS
An award made outside India under the foreign law is a foreign award. It
has to be enforced as per the provisions of the 1996 act now. In other
PROCEDURAL LAWS
enforced as a foreign award but as per the judgment of the supreme court
in N.T.P.C VS. THE SINGER & CO. and held that such an award but
will be a foreign award as a domestic award under the Part [1] of the act.
This decision has been criticised as it is given under the old act 1961.
Since the new act is enforced yet the decision still is good as it has not
been over-ruled.
subject matter.
and the foreign awards are only those where arbitration takes place in a
convention country.
V/s
Section 45. However, if any of the parties feel that such an argument is
has the right to approach the competent court as held in the case.
V/s
ITALGRANI S.P.A
application should be made before the court where the suit is pending.
If there is valid arbitration agreement, the suit must be stayed and the
V/s
S.P.C
STC
V/s
According to the Section 46, foreign award shall be binding for all
the law of the country the award being governed by the law of that
country then the enforcement of that award of India does not violate
V/s
Also for the enforcement of the foreign award there is no need to take
make rule on the court or decree and other to take up execution after
Under section 49, the court cannot directly enforce foreign award
acting under section 49 of the 1996 Act. Once the court under section 49
Ltd.2
Court enforcing a foreign award cannot grant interest beyond the date of
abiter dictum. Under section 50, the court is authorized by law to hear
If an order refers to –
1
AIR 2001 SC 2293
2
AIR 1999 BOM 417
If under this section any order is passed in appeal, second appeal cannot
be filed against such order. But appeal to the Supreme Court can be
filed.
This convention has been reproduced more or less same as the New York
convention and has name sake relevance because of the fact that this
cannot be applied to the foreign awards under the New York Convention.
the Arbitration Act 1950, which actually considerate the Arbitration Act
1889-1934.
order in council.
that the parties should signify their consent to the award before the same
procedure
law and its enforcement may not be against the public policy or
arbitral award.
It can’t be enforced if it doesn’t deal with all the questions referred to the
properly represented.
More or less, it is not final when the rules of natural justice were not
party.
TIME LIMIT
The act doesn’t prescribe any time limit within which a foreign award
provisions under the limitation act i.e. the period would be three years
from the date when the right to apply for the enforcement accrues. The
Bombay high court have held that the right to apply would accrue when
the right i.e. the award is actually received by the applicant as in the case
VS.
Vs.
it was held by the Supreme Court that once the court determines that a
into a decree. The court clearly stated in its judgment that “Once the
reason, section 47 to 49 and the scheme of act that every final arbitral
proceeding, the court can enforce a foreign award and deal with the
of the court, rejecting objections to the award. An appeal shall lie only if
decision of the court rejecting objections to the above. And appeal shall
lie only if the courts hold the award to be non-enforceable. Hence a
under the Article 136 of The Constitution of India. Such appeals are
CONCLUSION
Viewed in its totality India does not come across as a jurisdiction which
review, Indian Courts do not cross the limits and refrain themselves from