INDIA Law and Practice Contributed by: Neeraj Tuli, Rajat Taimni, Amrit Singh and Anuj Bahukhandi, Tuli & Co
tion frameworks are inadequate. It affirmed that com- mercial substance must prevail over procedural form to reflect modern business realities. 3.2 Enforcement of Arbitral Awards In India,domestic arbitral awards are governed by Part I of the Arbitration Act read with the Code of Civil Pro- cedure, 1908 (“CPC”) and are enforced in the same manner as a decree of a Court under Section 36 of the Arbitration Act. In practice, however, enforcement through execution proceedings can take considerable time, particularly where the award-debtor raises objec- tions, seeks repeated adjournments, or the execution requires identification and attachment of assets. Thus, while the statutory framework is pro-enforcement, the actual recovery of the awarded amount may still be prolonged. India is a signatory and has enacted the New York Convention and the Geneva Convention. Enforcement of a foreign arbitral award rendered in a recognised jurisdiction is governed by Part II of the Arbitration Act. The party applying for enforcement of a foreign award is required to produce, as evidence, the following: • the original award or a duly authenticated copy of the award; • the original arbitration agreement or a duly certified copy of the same; and • such other evidence as is necessary to prove that it is a foreign award. Refusal to Enforce a Foreign Award Enforcement of a foreign award may be refused on any of the following grounds (among others): • a party to the arbitration is under some incapacity or the arbitration agreement is not valid under the law to which the parties have subjected it or under the law of the country where the award was made; • no proper notice of the appointment of an arbitra- tor or of the arbitration proceedings was served, or a party was otherwise unable to present its case; • the arbitral award is beyond the scope of the arbi- tration agreement;
• the composition of the arbitral tribunal was not in accordance with the parties’ agreement or the law of the country where the arbitration took place; • the award has not yet become binding on the par- ties, or has been set aside or suspended at the seat of the arbitration; • the subject matter of the arbitration is not arbitra- ble under the law of India; and • the enforcement of the award would be contrary to the public policy of India. Indian Courts have generally adopted a pro-enforce- ment approach and have emphasised that Section 48 of the Arbitration Act does not permit a merits-based review of the award. In Avitel Post Studioz Limited v HSBC PI Holdings ( Mauritius ) Limited , 2024 SCC OnLine SC 345, the Supreme Court emphasised that a party resisting enforcement cannot use Section 48 as a means to reo- pen issues already determined by the arbitral tribunal or to seek a review on merits. Challenges to enforce- ment must be raised in good faith and in a timely man- ner, and can succeed only where one of the specific grounds under Section 48 is established. In particular, the public policy exception is to be construed nar- rowly, having regard to the international character of a foreign award, and the enforcement Court cannot act as an appellate Court over the award. Recently, in Messer Griesheim GmbH v Goyal MG Gases Pvt Ltd , 2026 INSC 298, the Supreme Court refused to enforce a foreign summary judgment, hold- ing that a judgment rendered despite triable issues existing, and in disregard of, Indian foreign exchange laws is violative of Section 13 of the CPC. In Nagaraj V Mylandla v PI Opportunities Fund - I , 2026 SCC OnLine SC 1218, concerning enforcement of a Singapore-seated award, the Supreme Court applied the doctrine of transnational issue estoppel, holding that issues conclusively determined by the Courts at the seat could not ordinarily be re-litigated in India by recasting them as objections to enforcement. The decision reinforces the distinction between the pri- mary jurisdiction of the Courts at the seat and the secondary jurisdiction exercised by an enforcement Court.
153 I NSURANCE L I T IGATI O N 2026
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