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Enforcing Foreign Arbitration Awards in India

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Enforcing Foreign Arbitration Awards in India

Article & FAQ's

 

Can an Arbitration Award Obtained from a Foreign Country be Enforced Against a Party in India?

Under Section 44 of the Indian Arbitration and Conciliation Act, 1996, a foreign arbitration a foreign award by definition means an award passed in such territory as the Central Government by notification may declare to be a territory to which the New York Convention applies.

Hence, even if a country is a signatory to the New York Convention, it does not ipso facto mean that an award passed in such country would be enforceable in India. There has to be further notification by the Central Government declaring that country to be a territory to which the New York Convention applies.

About 40 countries have been notified so far by the Indian government. The United States of America, United Kingdom, France, Germany, Japan and Singapore are among the countries notified by India.

Australia and Hong Kong are among the countries which have not yet been notified.

 

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Is India a Party to the New York Convention of Enforcement of Arbitration Awards?

India is a party to the the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. It became a party to the 1958 Convention on 10th June, 1958 and ratified it on 13th July, 1961.

India is also a party to the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927.

The Indian law is complex in these kind of matters. Therefore, please seek a proper legal advice regarding this matter. Click here to Contact us for further information

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Whether an Arbitration Award obtained in the USA is enforceable in India?

The USA and India are both parties to the the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.

The United States of America is among the countries notified by India under the New York Convention.

Therefore, an Arbitration Award obtained in the USA is enforceable in India.

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What law governs the enforcement of Foreign Arbitration Awards in India?

The Indian Arbitration and Conciliation Act, 1996 the governing arbitration statute in India. It is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985.

The Code of Civil Procedure, 1908 (CPC) governs the execution of decrees, whether foreign or domestic, in India.

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What are the Conditions for enforcement of Foreign Arbitration Awards in India?

Section 48 of the Indian Arbitration and Conciliation Act, 1996 lays down the conditions for enforcing a foreign arbitration award in India.

Grounds for refusal of enforcement are provided for under Section 48 are similar to the New York Convention.

If the court is satisfied that the foreign award is enforceable, the same shall be deemed to be a decree of the court. The Supreme Court has held that no separate application need be filed for execution of the award. A single application for enforcement of award would undergo a two-stage process. In the first stage, the enforceability of the award, having regard to the requirements of the Act (New York Convention grounds) would be determined. Once the court decides that the foreign award is enforceable, it shall proceed to take further steps for execution of the same.
 

 

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Whether a Foreign Arbitration Award can be challenged in India on the ground of public policy?

Previously, under the Indian Arbitration and Conciliation Act, 1996, challenging a foreign arbitration award on the ground of public policy was not available.

In a recent judgment, the Supreme Court of India has ruled that broadly interpreted public policy considerations that were previously only grounds for challenging domestic arbitration awards are now appropriate grounds for challenging foreign arbitration awards. (Venture Global Engineering v. Satyam Computer Services, Ltd., January 2008). Specifically, the Supreme Court upheld a challenge in India to a foreign arbitration award on the grounds that the relief contained in the award violated certain Indian statutes and was therefore contrary to Indian public policy pursuant to Part I of the Indian Arbitration and Conciliation Act, 1996.

The case arose from a challenge in India by a US company, Venture Global Engineering (VGE), to set aside an award rendered against it in an arbitration proceeding in London under the rules of the LCIA. The relief in the award implicated VGE’s interests in India and called for the transfer of certain shares that VGE owned in an Indian joint venture. VGE’s challenge asserted that the relief in the award violated certain Indian corporate and foreign investment statutes, specifically the Foreign Exchange Management Act, 1999, and therefore constituted a "conflict with the public policy of India" pursuant to the general provisions contained in Section 34 of Part I of the Arbitration Act..

The decision has important implications both for companies doing business involving India and for companies with substantial assets located in India and for companies required to enforce foreign arbitration awards in India.

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