Foreign Awards In India : Recognition, Challenge And Enforcement

INTRODUCTION The legislation applicable for recognition and enforcement of an arbitral award in India is the Arbitration and Conciliation (Amendment) Act 2019[1]. India is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958[2] and the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927[3]. India has also entered into various Bilateral and Multilateral investment treaties, though the current status is most of them is under question. Typically, bilateral investment treaties contain a dispute resolution clause. However, India is not a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States[4] (ICSID Convention). If a party receives a binding award from a country which is a signatory to the New York Convention or the Geneva Convention and the award is made in a territory which has been notified as a convention country by India, the award would then be enforceable in India. Before an award is enforced in India, the court examines whether the award complies with the requirements of the Act, and after these requirements (explained below) are satisfied, the award is enforced like a decree of the court. JURISDICTION OF COURT FOR ENFORCEMENT The competent court for filling an application for enforcement of a foreign award is before the court in whose jurisdiction the assets of the award debtor are located.[5] In case where the assets of the judgment debtor are located in the territorial jurisdiction of more than one court, the award holder can file execution petitions simultaneously in all of such courts.[6] The judgment debtor can use the provisions of Order XXI Rule 41 of the Code of Civil Procedure, 1908[7] to make an application to the court requesting a disclosure of the assets held by the award debtor under provisions, in cases where the award holder is not able to distinguish the assets of the judgment debtor. REQUIRED DOCUMENTATION The relevant provision stating the documents required at the time when a party is applying for the enforcement of a foreign award is Section 47(1) of the Arbitration Act[8]. The relevant documents are: (a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made; (b) the original agreement for arbitration or a duly certified copy thereof; (c) such evidence, if needed, to prove that the award is a foreign award. TRANSLATION In case a party is applying for the enforcement of a foreign award, which is in a foreign language, then the party seeking such enforcement will have to produce a translation of the award into English, certified as correct, by a diplomatic or consular agent of the country to which that party belongs. As another alternative, the award may also be certified as correct in such other manner as may be sufficient according to the law in force in India. In such a case, a translated copy of the award must be certified as correct by a notary appointed under the Notaries Act 1952[9]. Further, the translation certified by the notary could be a translation of the award made by either the notary himself/herself, or any other person, but verified by the notary as correct.[10] STAMPING, REGISTRATION AND COURT FEES A foreign award require does not require any registration nor any stamping, and can be purely enforced as a decree of the court.[11] The Courts Fees Act 1870[12] prescribes the mandatory court fees to be paid in any judicial proceeding and the same applies for applications seeking enforcement of foreign award. Nevertheless, there exits amendments by various states to the Court Fees Act or in their own Court Fees Act. Therefore, the court fees payable is not uniform throughout the country and varies depending on the court in which the execution proceedings are filed, and must be checked accordingly. INTERIM AWARDS Section 2(1)(c) of the Arbitration Act[13] of defines the term, 'arbitral award' and includes in its meaning an interim award. The enforcement of any interim award is by the same procedure as that of a domestic award (Section 36 of the Arbitration Act[14]) and foreign award (Section 47 of the Arbitration Act[15]). Though the procedure for enforcement is the same, per say, but for an award to be enforced as a decree of the court, the conclusiveness of the award is one of the most important considerations. For an interim award to be enforced, it must entirely conclude over the issues or claims deliberated by it. Where the nature of the claim / interim award is such that it might still be altered by the final award, then such an award is not enforceable under the Indian law.[16] LIMITATION PERIOD The 1996 Act does not recommend any time limit within which a foreign award must be applied to ...

Foreign Awards In India : Recognition, Challenge And Enforcement

Asmita Singh

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