ENFORCEMENT OF FOREIGN AWARD
-By: Sunaina Jain
Under Indian law, foreign awards passed in countries of the New York Convention to, among others, Singapore and England are enforceable in India. Once an award is passed, it is required to file a certified copy of the award and the original arbitration agreement in a court of competent jurisdiction in India. The court would issue a notice to the counterparty upon such an application allowing it to either accept or object to such award. The counterparty has the option of raising the following grounds for rejecting such a request to enforce foreign awards.
The enforcement of a foreign award may only be refused, at the request of the party against which it is invoked, if that party provides proof to the court that –
Arbitration and Conciliation Act Section 48,
Conditions for International award enforcement: -
o Incapacity: the parties to the agreement were due to some incapacity under the law applicable to them. It may be the parties' incapacity or disability by the complainant. The validity of the arbitral clause must be decided according to the law of the arbitral tribunal 's seat, in the absence of the choice of law provision.
o The Invalidity of Agreement: The Agreement is not valid under the law to which the parties submitted the Agreement or under the law of the country in which the award was made.
o Inability to present his case: - A proper notice of the arbitral proceedings or some legitimate reason was not given to him/her
o The award goes beyond reference: the award does not deal with un-referred issues or include judgments on matters outside the reach of the Agreement. The award is not enforceable because it sets out disputes as to the authority of the arbitrator on which they have no power to rule under international law.
o The legality of arbitral tribunal composition and procedure: enforcement of any award may be denied;
The composition of the arbitral tribunal did not conform either to the agreement or to the law of the country in which the arbitration took place.
o The arbitral proceedings were not in conformity with the agreement or law of the country in which the arbitration took place.
o An award not yet binding discontinued or suspended.
o Other factors:- Section 48, subparagraph (2) empowers the court to deny compliance for two purposes
o The subject matter of dispute can not be decided by arbitration in accordance with the law in India.
o Unlike Public Policy.
Procedure for enforcement of a Domestic award
A person against whom a domestic award is made has to immediately approach a civil court for challenging the same by making an application under section 34 of the act otherwise the person in whose favor the award has been made can execute an equivalent as a decree.