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Interpretation of section 48 subsection one of the act
The Public Policy ground
Under Article V(2)(b) of the New York Convention, ‘public policy’ means the doctrine as applied by the courts in which the foreign award is sought to be enforced. Under the Indian Arbitration Act and various precedents set by the judiciary of India, enforcement of awards which would be contrary to the morality, fundamental principles of law, natural justice, and interests if India is prohibited with the following reasonings:
- ONGC v Western Geco International Ltd, 2014 (9) SCC 263 - The Supreme Court explained that Public Policy includes "all such fundamental principles as providing a basis for administration of justice and enforcement of the law in this country" and the court may assess if the concerned arbitral tribunal has:
- Taken a judicial approach and did not act arbitrarily;
- Acted in cognizance of the principles of natural justice; and
- Avoided coming to any perverse or irrational conclusions which no reasonable or rational person would arrive at.
- Associate Builders v Delhi Development Authority, 2012 (4) ARBLR 307 - the Supreme Court stated that an award may be set aside if it is:
- Arbitrary or whimsical instead of fair, reasonable, and objective awards which contain a conclusion so irrational that no reasonable person would arrive at and hence being, contrary to the fundamental policy of laws in India;
- Awards which adversely affect the national interests and intra-state relations of Indian with other such foreign countries.
- Awards which “which shocks the conscience of the Court” or in contravention to any provisions of the Act and hence, patently illegal.
The 2015 Law Commission Report
In response to the above-mentioned judgments, the Law Commission emphasized that Section 34 of the Act provides an exhaustive list of grounds to challenge on the grounds of public policy and states that "For the avoidance of doubt the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute."
Stamping and Registration
In M/S. Shri Ram EPC Limited v Rioglass Solar SA (2018) SCC Online 147.
the Supreme Court of India, and Naval Gent Maritime Ltd v Shivnath Rai Harnarain (I) Ltd,174 (2009) DLT 391. the Delhi High Court held that a foreign arbitral award is not liable to be stamped and would not require registration. Similarly, held in Vitol S.A v. Bhatia International Limited, 2014 SCC OnLine Bom 1058 and Narayan Trading Co. v. Abcom Trading Pvt. Ltd., 2012 SCC OnLine MP 8645.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
- Interpretation of section 48 subsection one of the act
- The Public Policy ground
- The 2015 Law Commission Report
