INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
Foreign Arbitral Award The enforcement of foreign awards is provided for in Part II of the Arbitration Act. A foreign award that would be enforceable under the Arbi- tration Act would be binding on the parties and can be relied upon by them in any legal pro- ceedings in India. Once a court is satisfied that a foreign award is enforceable, such award will be deemed to be a decree of that court as per Section 49 of the Arbitration Act. A petition seek- ing the enforcement of a foreign award has to be made within three years from the date when the right to apply accrues. There is no provision for challenging a foreign award. However, the enforcement of a foreign award may be refused on the following limited grounds: • the award debtor was under some incapacity, or the underlying agreement is not valid under the applicable law; • the award debtor did not have proper notice of the arbitrator’s appointment or was unable to present its case; • the award deals with a subject that is beyond the terms of referral to arbitration; • the composition of the arbitral tribunal was contrary to the agreement or the law of coun- try where the arbitration took place; or • the award is not yet binding or has been set aside/suspended in the country in which it was made. The enforcement of a foreign award may also be refused if the court finds that: • the subject matter of the dispute is not capa- ble of settlement by arbitration under the law of India; or • the enforcement of the award would be con- trary to the public policy of India.
Furthermore, a domestic award shall be con- strued to be in conflict with the public policy of India if: • the making of the award was induced or affected by fraud or in violation of confidenti- ality provisions of the Act or provisions relat- ing to the admissibility of evidence of concili- ation proceedings; • the award is in contravention of the funda- mental policy of Indian law; or • the award is in conflict with the basic notions of morality and justice. An application for setting aside a domestic award shall be made within three months of the receipt of the arbitral award, unless sufficient cause is shown by the applicant for an exten- sion of this period by a further period of 30 days. 13.4 Procedure for Enforcing Domestic The enforcement of domestic arbitral awards is provided for under Section 36 of the Arbitra- tion Act, and an award has to be enforced in accordance with the provisions of the CPC, in the same manner as a decree of the court. An arbitral award can be enforced once the time provided for challenging the award has expired. However, appropriate stamp duty has to be paid for the enforcement of a domestic arbitral award. The mere filing of a challenge to the award will not stay the operation of the award and render it unenforceable; a separate application seeking stay has to be made. Subject to such condi- tions as it may deem fit, a court may grant stay of operation of the arbitral award for reasons recorded in writing. and Foreign Arbitration Domestic Arbitral Award
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