PRO-ENFORCEMENT TREND OF FOREIGN

AWARDS IN INDIA: A CRITICAL ANALYSIS

By
Akanksha Bohra
19-08
 Introduction
• The object of this research paper is to provide a brief description about the
pro-enforcement of foreign arbitral awards in India.
• Objectives :
1. To analyze the enforcement mechanism of Foreign Arbitral Awards.
2. To analyze the judicial opinion in enforcement of international arbitration
awards with help of various case laws.
3. To understand the procedural challenges to the enforcement of international
commercial arbitration.
 Foreign Arbitral Award
• An arbitral award is defined as the decision delivered by an arbitration
tribunal during the course of arbitration proceeding.
• Section 44 of the Arbitration and Conciliation,1996 a foreign award is
defined as,“an arbitral award on differences that are related to the matters
which are deemed commercial under the Indian law”.
 Enforcement of Foreign Arbitral Award in
India
• The Code of Civil Procedure and the Arbitration and Conciliation Act, 1996 governs
the “Enforcement of the arbitral awards in India”.
• A three step procedure is followed for the compliance of a foreign arbitral award.
• Firstly that the party who is the award holder along with the submission of all
supporting documents shall move an application under Section 47 of Arbitration Act.
Second step includes the raising of a defence by the opposite party under Section 48
of the Act along with providing all the relevant facts. Lastly the court shall execute
the award under Section 49 if the court is of the opinion that the award passed is
enforceable with regard to all the facts placed before the court by the parties
Pro-Enforcement of Foreign Arbitral Award
• The judgements delivered by Indian courts express the positive attitude of the
courts to shift towards a “pro-enforcement mechanism” with reliance on
principle of non-interference with execution of arbitration.
• Major Judicial Pronouncement :
1. Balco Judgement
2. NTT Docomo v. Tata Sons
3. Cruz City I Mauritius Holdings v. Unitech Limited
4. Vijay Karia & Ors. v. Prysmian Cavi E Sistemi SRL & Ors
 Vedanta Judgement
• The relevant facts of the case are that a product sharing agreement was signed between the
Government and Cairn India Ltd. (later acquired by Vedanta) to separate oil and gas from the
facility.
• A dispute arose regarding the cost and around $499 Million was recovered by the government from
Vedanta. In 2011, the dispute came before the Malaysian Tribunal i.e shifted to an international
arbitration forum.
• The tribunal ruled an award in favour of Vedanta. Appeals were filed in Delhi High Court with
regard to the issue of “Enforcement of the foreign award” in 2018.
• The Supreme Court took a step toward ensuring the seamless enforcement of the foreign judgement
by eliminating loopholes in the existing legal framework and adopting a pro-enforcement approach.
 Analysis
• It can be analysed that considering the current justice delivery system, the
arbitration mechanism of India should be improved and innovative policies
must be developed to cater the needs of the society.
• The Supreme Court has bolstered India’s status as an arbitration-friendly state.
• The importance of effective and timely enforcement of an international
arbitration award has been recognised by the judiciary, which has gradually
adopted a pro-arbitration stance and is executing the international award when
no conflict of law exists.