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Interpreting International Law in India
Interpreting International Law in India
India also mostly follows the same principles of statutory interpretation drawing on English law and the New York Convention of 1958 among other vital developments.
Justice AK Patnaik’s remarks on the principles of statutory interpretation should always be kept in mind by legal practitioners as well as by courts while interpreting the prevailing Indian law in the form of the Arbitration and Conciliation Act 26,1996 as well as keeping in mind the various additions and subsequent amendments. The remarks were along the following lines-
In construing the very expression ‘public policy’ in Section 7(1)(b)(ii) of the Foreign Awards(Recognition and Enforcement) Act,1961 which in turn was facilitated for giving adequate and practical effect to the New York convention of 1958 and assistance was taken from terms of the convention and the exact meaning of public policy which was understood in private international law. The word commercial in Section 3 of the same act was in an extremely liberal and flexible manner construed to encapsulate contracts for consultancy services to in turn promote speedy settlement of disputes which arose in international trade and recourse was also taken to the meaning of the word ‘commercial’ in the Model law that was arranged by the United Nations Commission on International Trade Law.
Pertaining specifically to the importance of the Arbitration and Conciliation Act 26, 1996 along with its numerous additions and amendments in lieu of the amending act 3 of 2016 precisely due to Part 1(Arbitration) of the 1996 Act(Sections 2 to 43) and Part |||(Conciliation) of the 1996 Act(Sections 61 to 81) have been enacted in cognizance of the preamble of the 1996 act since the Model Law and Rules have made immense contributions towards establishing a unified legal framework for a fair and efficient settlement of disputes which in turn arose in various international commercial relations. Secondly, Chapter 1 of the 1996 Act: New York convention awards have been enacted by reproducing in statute form(Sections 44 to 52) the relevant and appropriate articles of the New York convention 1958, which in itself had already been ratified by India in the year 1960.
Part 1 (Arbitration) of India’s 1996 Act had been framed and promulgated after taking into due consideration the UNCITRAL Model law of 1985. The basis of which was the International Commercial Arbitration Act of 1996 of British Columbia (Canada) which intricately follows the UNCITRAL Model Law of 1985.
Most contracting states of the New York Convention,1958 have enacted implementing acts which can be broadly categorized and tabulated in the following form-
Canada and former Czechoslovakia have attached to the implementing enactment the whole of the New York convention,1958 as a schedule.
Australia, Denmark, Ireland, Indonesia, Malaysia, Israel, and New Zealand have taken the convention in question as its very rudimentary base and have modified it subsequently in its statute form itself.
India, which had ratified the New York convention in 1960, enacted arguably without much success an initial implementing act which was titled the Foreign Awards (Recognition and Enforcement) Act,1961. However, gradually India re-enacted recent implementing legislation in the form of the Arbitration and Conciliation Act 26 of 1996, this, in turn, included Part 2, Chapter 1 of the Arbitration and Conciliation Act 26 of 1996(New York Convention Awards) - which in turn included sections 44 to 52.
Source: Harmony amidst Disharmony: The International Framework: Fali S Nariman
- Principles of Staturoty Interpretation
- Arbitration and Conciliation Act
- UNCITRAL Model Law
