Date: 6 October, 2020
by Upamanyu Ganguly, ILS Law College, Pune
Under the Arbitration and Conciliation Act, 1996, Part II lays down the criteria for enforcing arbitral awards that are awarded by an international institution. The Act considers New York Convention awards and Geneva Convention Awards as enforceable, as long as certain conditions are fulfilled.
Under The Act, the party that wants to enforce an international award must present the following in front of a court-
The original copy of the award or a copy of the award signed by the legal authority of the country in which it was made
The original arbitration agreement or a certified copy of the agreement
Any evidence that is necessary to prove that the award is a foreign award
In case the award is in a foreign language, the party must produce a copy translated to English and certified by a diplomatic or consular agent of that country
CONDITIONS OF ENFORCEMENT
If the party, against whom the award is being enforced, wants the enforcement of the award to be refused, they must prove to the court that-
Under the law of the country the award was made, the party in question were under some incapacity, or the agreement was not valid or the party was not able to present their case
The party was not given a proper notice as to the appointment of the arbitrators or as to the arbitration proceedings
The matter of the case was not submitted to arbitration in accordance to the terms of arbitration or a decision regarding a matter was made that was beyond the scope of submission to arbitration
The composition of the arbitral authority or the arbitration proceeding was not in accordance with the arbitration agreement, or was not in accordance with the law of that country
The award has not yet become binding on the parties or has been set aside by a competent authority of the country where the award was made
The award can also be set aside by the courts in India if-
The subject-matter of the dispute is not capable of being referred to arbitration under the laws of India
The enforcement of the award goes against the public policy of India
The idea of being able to enforce foreign arbitral awards is a result of the idea of “Minimum Judicial Interference” and promoting foreign investments.
In the recent case of Vijay Karia & ors. v. Prysmian Cavi E Sistemi SRL & ors., the Supreme Court promoted a minimal interference approach towards dispute settlement, and also promoted a pro-enforcement bias to not only parties to a dispute but also to the courts of India as well.