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ENFORCEMENT OF CERTAIN FOREIGN AWARDS
PRESENTATION BY:NAMAN JAIN10313403811
FOREIGN AWARDS MEANINGFOREIGN AWARDS MEANS AN ARBITRAL AWARD ON DIFFERENCES BETWEEN THE PARTIES ARISING OUT OF LEGAL RELATIONSHIPS , WHETHER CONTRACTUAL OR NOT , CONSIDERED AS COMMERCIAL UNDER THE LAW IN FORCE IN INDIA. Taking into theconsideration the enforcement of foreign award, it canbe enforced in Indiaunder the multilateral international conventions to which India is a party.Foreign arbitration is an award or arbitration conducted in a place outside India . The resultant award is an award, if sought to be enforced in India , constitutes a foreign award.
The United Nations commission on international trade law[UNCITRAL] adopted in 1985 the model law on International Commercial Arbitration. The General Assembly of theUnited Nations has recommended that all countries give dueconsideration to the said model law ,in view ofthe desirability of uniformity of law ofarbitralprocedures and the specific needs ofinternational commercial arbitrationpractice.An important feature of thesaid UNCITRAL model law and rules is that they have harmonized concepts of arbitration and conciliation ofdifferent legal systems ofthe world and thuscontained provisions universal application.Though the said UNCITRAL model law and rulesare intended to deal with international commercial arbitration andconciliation, they could with appropriate modifications, serve as a model forlegislation on domestic arbitration and conciliation.
REQUIREMENT
CONVENTIONS UNDER THE ARBITRATION AND CONCILIATION ACT , 1996 ARE :
THE NEW YORK CONVENTION AWARDS OF 1958 (SECTION 44-50)
THE GENEVA CONVENTION AWARDS OF 1927 (SECTION 53-59)
The scope of thissection is actually utilized by any party that is interested in foreign awards to the court having jurisdiction over the subject matter . The differentiation between the awards mustapply in writing toa court and the foreign awards are only those where arbitration takes place in a convention country. BASICALLY NEW YORK CONVENTION AWARDS ARE APPLICABLE TO THE DIFFERENCES BETWEEN PERSONS ARISING OUT OF LEGAL RELATIONSHIPS , WHETHER CONTRCTUAL OR NOT.NEW YORK CONVENTION OF 1958
THE JUDICIAL AUTHORITY , WHEN SEIZED OF AN ACTION IN A MATTER IN RESPECT OF ONE OF THE PARTIES HAVE MADE AN AGREEMENT REFERRED TO IN SECTION 44 , SHALL, AT THE REQUEST OF ONE OF THE PARTIES OR ANY PERSON CLAIMING THROUGH OR UNDER HIM , REFER THE PARTIES TO ARBITRATION , UNLESS IT FINDS THAT THE SAI AGREEMENT IS NULL AND VOID , INOPERATIVE OR INCAPABLE OF BEING PERFORMED. SECTION 45 : POWER OF THE JUDICIAL AUTHORITY TO REFER PARTIES TO ARBITRATION.
SHIVNATH RAI HAR NARAIN V/s ITALGRANI S.P.A According to Section 45, Judicial Authority has power to refer parties to arbitration. The application must be made in writingand at any timebefore the judgment of the court is pronounced in the suit. Such application should be made before the court where the suit is pending. If there is valid arbitration agreement, the suit must be stayed and the matter referred to arbitration as held in the case.
IN SUPPORT OF THIS , A CASE LAW IS THERE:
SECTION 46 : WHEN FOREIGN AWARD BINDINGAccording to the Section 46, foreign award shall be binding for allpurposes on for all purposes, on the personsas between whom it was made and may accordingly be relied on any of those persons by way ofdefense , set off or otherwise ant legal proceedings inIndia.
SECTION 47: EVIDENCETHE PARTY APPLYING FOR ENFORCEMENT OF A FOREIGN AWARD SHALL PRODUCE FOLLOWING TO THE COURT:ORIGINAL AWARD OR A COPY THEREOF , DULY AUTHENTICATED IN THE MANNER REQUIRED BY THE LAW OF THE COUNTRY IN WHICH IT WAS MADE.ORIGINAL AGREEMENT FOR ARBITRATION OR A DULY CERTIFIED COPY THEREOF.SUCH EVIDENCE AS MAY BE NECCESSARY TO PROVE THAT THE AWARD IS A FOREIGN AWARD.
TRANS OCEAN SHIPPING AGENCY PVT LTD V/S BLACK SEA SHIPPING When the award given in a foreign country is valid underthe law of the country the award being governed by the law of that country then the enforcement of that award of India does not violatepublic policy as held in the case.IN SUPPORT OF THIS, A CASE LAW IS THERE:
Section 48 provides that theenforcement of foreign award may be refused at the request of other party against whom it is invoked, only ifthat party furnishes Court some proof :
PARTY AGAINST WHOM THE AWARD IS INVOKED WAS NOT GIVEN PROPER NOTICE OF THE APPOINTMENT OF THE ARBITRATOR OR OF THE ARBITRAL PROCEDDINGS.UNDER SOME INCAPACITY OR THE SAID AGREEMENT IS NOT VALID UNDER THE LAW TO WHICH PARTIES ARE SUBJECTED IT.COMPOSITION OF ARBITRAL AUTHORITY OR PROCEDURE WAS NOT ACCORDING WITH THE AGREEMENT OF THE PARTIES.AWARD HAS NOT YET BECOME BIDING ON THE PARTIES OR HAS BEEN SET ASIDE OR SUSPENDED BY A COMPETENT AUTHORITY OF THE COUNTRY IN WHICH THE AWARD WAS MADE. SECTION 48: CONDITIONS FOR ENFORCEMENT OF FOREIGN AWARDS
FUERST DAY LAWSON Ltd V/S JINDAL EXPORTS Ltd For the enforcement of the foreign award there is no need to take separate proceedings one for deciding the enforceability of award to make rule on the court or decree andotherto take up execution afterthat as held in this case.IN SUPPORT OF THIS, A CASE LAW IS THERE:
ACCORDING TO THIS , WHERE THE COURT IS SATISFIED THAT THE FOREIGN AWARD IS ENFORCEABLE , THEN THE AWARD SHALL BE DEEMED TO BE A DECREE OF THAT COURT.SECTION 49: ENFORCEMENT OF FOREIGN AWARDS
SECTION 50: APPEALABLE ORDERSCourt enforcing a foreign award cannot grant interest beyond the date ofabiter dictum. Under section 50, the court is authorized by law to hearappeal from the following orders:IF AN ORDER REFERS TO:1)REFER THE PARTY TO ARBITRATION2)ENFORCE A FOREIGN AWARDIf under this section any order is passed in appeal, second appeal cannotbe filed against such order. But appeal to the SupremeCourt can be filed.
GENEVA CONVENTION AWARDSThis convention hasbeen reproduced moreor lesssame as theNew Yorkconvention and has name sake relevance because of the fact that this cannot be appliedto theforeign awards underthe New York Convention.IN THIS FOREIGN AWARDS MEANS AN ARBITRAL AWARD ON DIFFERENCES RELTING TO MATTERS CONSIDERED S COMMERCIAL UNDER THE LAW IN FORCE IN INDIA.
WHEN THERE IS DISPUTE REGARDING A CONTRACT MADE BETWEEN PARTIES UNDER SECTION 53 AND WITH AN ARBITRATION AGREEMENT ARE CAPABLE OF BEING CARRIED INTO EFFECT, SHALL REFER THE PARTIES ON THE APPLICATION OF EITHER OF PARTIES CLAIMING OR UNDER HIM ON THE DECISION OF ARBITRATORS.SEC 54: POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO ARBITRATION
SEC 55: FOREIGN AWARDS WHEN BINDINGANY FOREIGN AWARD WILL BE ENFORCEABLE SHALL BE TREATED AS BINDING FOR ALL PURPOSE ON THE PERSONS AS BETWEEN WHOM IT WAS MADE AND MAY ACCORDINGLY BE RELIED ON BY ANY OF THOSE PERSONS BY WAY OF DEENCE, SET OFF OR OTHERWISE IN ANY LEGAL PROCEEDINGS IN INDIA.
SEC 56:EVIDENCESOME CONDITIONS NEED TO BE FULFILLED BEFORE ENFORCEABILITY OF FOREIGN AWARDS :. EVIDENCE PROVING THAT THE AWARD HAS BECOME FINAL. IF DOCUMENT IS IN FOREIGN LANGUAGE THEN PARTY SEEKING TO ENFORCE THE AWARD SHALL PRODUCE A TRANSLATION INTO ENGLISH AS CORRECT BY A DIPLOMATIC OR CONSULAR AGENT OF THE COUNTRY TO WHICH PARTY BELONGS. made in pursuance of an agreement for arbitration valid by the lawby which it was governed.made by the tribunal provided by the agreement
made in pursuance of an agreement for arbitration valid by the lawby which it was governed.madeinconformitywiththelawgoverningthearbitrationprocedure.ENFORCEMT OF AWARD IS NOT CONTRARY TO THE PUBLIC POLICY OR THE LAW OF INDIA.made by the tribunal provided by the agreement.become final in the country it was made in respect of a matterwhich may be lawfully be referred to ARBITRATION.
SEC 57:CONDITIONS FOR ENFORCEMENT OF FOREIGN AWARDS
WHEN THE COURT IS SATISFIED THAT THE FOREIGN AWARD IS ENFORCEABLE UNDER THIS , THE AWARD SHALL BE ENFORCED AND DEEMED TO BE A DECREE OF THE COURT.
SEC 58:ENFORCEMENT OF FOREIGN AWARDS
AN APPEAL CAN BE DONE FROM THE ORDERS REFUSING:TO REFER PARTIES TO ARBITRATION UNDER SECTION 54.TO ENORCE A FOREIGN AWARD UNDER SECTION 57.IMP: NO SECOND APPEAL CAN BE DONE UNDER THIS SECTION, BUT NOTHING SHALL TAKE AWAY ANY RIGHT TO APPEAL TO SUPREME COURT.SEC 59:APPEALABLE ORDERS
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