INDIA Law and Practice Contributed by: Gautam Bhatikar, Deeksha Dev Singh and Isha Patil, Phoenix Legal
6.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Although India is a party to the New York Con - vention, which has been incorporated into the Indian Arbitration and Conciliation Act, 1996 (the “Arbitration Act”), a foreign arbitral award can be enforced in India only if the government declares the country in which the award was passed to be a “reciprocating territory” under Section 44 or 53 of the Act. India has currently notified 48 New York Convention territories of the 164 contract - ing states to the Convention. Article V of the New York Convention, which sets out the grounds for refusal to enforce an arbitral award, has been incorporated into Section 48 of the Arbitration Act. The 2015 amendment to the Arbitration Act nar - rowed the scope of challenge of a foreign award, especially on the ground of public policy, by inserting a specific clarification that the test of whether there is a contravention with the funda - mental policy of Indian law cannot entail a review on the merits. In a series of judgments (most recently Vijay Karia and Others v Prysmian Cavi E Sistei SRL (2020 SCC Online SC 177)), the Supreme Court held that an enforcing court can - not go behind the award and/or the arbitrator’s interpretation on the ground of public policy. 6.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction Indian courts generally recognise the enforce - ability of forum selection clauses in contracts. In British India Steam Navigation Co Ltd v Shan - mughavilas Cashew Industries (1990) 3 SCC 481, the Supreme Court held that such clauses bind consignees/holders of bills of lading and are enforceable as a matter of Indian law.
However, should the cause of action be shown to be in India, or if India is shown to be the more natural or appropriate forum for determining disputes, Indian courts may hold that they are seized of jurisdiction, regardless of the exclu - sive jurisdiction clauses in the bills of lading. In this regard, Indian courts would apply the same principles as set out by the House of Lords in the case of Spiliada Maritime Corporation v Can - sulex (1987) 1 AC 460, in considering whether India is the more appropriate forum for determin - ing disputes under the bills of lading. 6.5 Domestic Arbitration Institutes At present, there is no arbitration centre spe - cifically for maritime claims, but the Gujarat Maritime University and the International Finan - cial Services Centres Authority have signed a Memorandum of Understanding (MoU) at GIFT City to launch the Gujarat International Maritime Arbitration Centre (GIMAC). 6.6 Remedies Where Proceedings Are Commenced in Breach of Foreign Jurisdiction or Arbitration Clauses Interim measures granted by India-seated tribu - nals are automatically enforceable in India under Sections 17(2) and 9(3) of the Arbitration and Conciliation Act 1996, which are expressly relat - ed to India-seated arbitrations, as evidenced by the reference to Section 17 of the Act; however, the principle enshrined therein is equally appli - cable when interim measures are sought in the Indian courts in connection with a foreign-seated arbitration. The 2015 amendments to the Arbitration and Conciliation Act 1996 brought about significant changes to the arbitration laws in India. The insertion of Section 9(3) served to reduce the role of the court in relation to the granting of interim measures once the arbitral tribunal has been
219 CHAMBERS.COM
Powered by FlippingBook