How to Enforce/ Execute Foreign Awards in India

In India, the enforcement of foreign awards and carrying out of these arbitral awards are guided by both the Arbitration and Conciliation Act of 1996 and the Code of Civil Procedure of 1908.

The enforcement of a foreign award in India is a two-stage process which is initiated by filing an execution petition. Initially, a court would determine whether the award adhered to the requirements of the Act. Once an award is found to be enforceable it may be enforced like a decree of that court.

Enforcement of Foreign Arbitral Awards in India, as dealt with by Part II of the Arbitration and Conciliation  Act, provides for such enforcement to occur either under the New York Convention or the Geneva Convention. These applications lie only before a High Court.

Enforcement of Awards passed under the New York Convention

This part is dealt in Chapter I, Part II of the A&C Act and the relevant provisions range from Sections 44-52.

Section 44 defines a foreign award as an arbitral award on disputes between persons that arise from a legal relationship, whether contractual or not. The dispute must be recognized as a commercial one under the law in force in India, on or after 11th October 1960. The two prerequisites for enforcement here are that the country needs to be a signatory to the New York Convention and the Award must be made in the territory of another state that the Central Government notifies as a reciprocating territory.

Per Section 47, the party applying for the enforcement of the foreign award in India is required tosubmitthe following at the time of application:

• The original award or authenticated copy
• The original arbitration award or its certified copy
• Any evidence of the foreign nature of the Award

Section 48provides certain grounds on which the other party gets the opportunity to file an objection against such enforcement.Finally, per Section 49, when the Court is satisfied with the enforceability of the foreign award under this Chapter, the award is then considered a decree of that Court.

Enforcement of Awards passed under the Geneva Convention

This part is dealt with in Chapter II, Part II of the A&C Act and the relevant provisions range from Sections 53-60.

Section 53 defines a foreign award as an arbitral award on disputes related to matters considered commercial under the law in force in India after 28thJuly 1924. The three pre-requisites for enforcement here are:

• The award is in pursuance of an agreement for arbitration to which the Geneva Protocol on Arbitration Clauses, 1923 applies.
• The award is between persons subject to the jurisdiction of reciprocating territories, as designated by the Central Government and where the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 applies.
• The award is made in a territory designated as a reciprocating one by the Central Government.

Per Section 56, the party applying for the enforcement of the foreign award in India is required to submit the following at the time of application:

• The original award or authenticated copy
• Evidence showing that the award has become final
• Evidence to prove that the award was made in pursuance of a valid arbitration under the applicable law

Section 57(2) lays down certain conditions where the enforcement of the award can be refused.Finally, per Section 58, when the Court is satisfied with the enforceability of the foreign award under this Chapter, the award is then considered a decree of that Court.

Challenging Enforcement of Foreign Awards in India

Concerning the challenging of enforcement of foreign arbitral awards in India, refusal may occur on grounds such as:

• The parties to the arbitration agreement are incapacitated.
• The arbitration agreement is invalid under the controlling legislation.
• The party challenging the award did not receive proper notice of the arbitrator’s appointment or the arbitration proceedings or they were otherwise unable to present their case.
• The award addresses a dispute not anticipated by or outside the scope of the submission to arbitration or it includes decisions on subjects beyond the submission’s scope.
• The appointment of arbitrators or the arbitral procedure did not conform to the parties’ agreement or in the absence of such agreement, to the legislation of the country where the arbitration took place.
• The award has not become binding on the parties or a competent authority has suspended or set it aside.
• The subject matter of the dispute cannot be resolved by arbitration under Indian law.
• Implementing the award would be contrary to India’s public policy.