- In the proliferation of commerce, trade and investment, Arbitration manifested the way for expeditious resolution of disputes not only in the domestic sphere but also across borders.
- Securing an award from the proceedings is only one aspect of combat as enforcement requires tremendous struggles.
- Enforcement of arbitral awards in India is primarily governed by the Arbitration and Conciliation Act 1996 and also Civil procedure Code 1908.
- India being a signatory to New York Convention and Geneva Convention two avenues are available, for enforcement of foreign award. Party receiving an award from a country which is a signatory to New York Convention or Geneva Convention and the award is made in the territory which has been notified as a convention country by India, the award would then be enforceable in India.
- The Supreme Court in Vijay Karia v. Prysmian Cavi, (2020 SCCOnline SC 177), analyzed the elements of public policy defence available for denying enforcement of a foreign award. It noted that while the courts in the country of arbitral situs have the jurisdiction to set aside the arbitral award, the courts of secondary jurisdiction i.e., for the purposes of enforcement, may refuse to do so only on the grounds mentioned in Article V of the New York Convention. Thus, it interpreted the usage of 'may' in Section 48(1) and (2) to connote the discretion with the court to enforce an award which must be exercised, only if the resisting party is able to furnish proof based on the conditions mentioned in the provision.
- Grounds for refusing enforceability of Award in India Section 47 of the Act
- Agreement is not valid
- Due process of law has been violated
- Arbitrator has exceeded his authority
- Irregularity in the composition of Arbitral Tribunal or arbitral proceedings
- Award being set aside or suspended in the country in which, or under the law which, that award was made.
- Non-arbitrability of dispute.
- Award being contrary to public policy.
- The Amendment Act has restricted the ambit of violation of public policy for international commercial arbitration to only include those awards that are: (i) affected by fraud or corruption, (ii) in contravention with the fundamental policy of Indian law, or (iii) conflict with the notions of morality or justice.
Furthermore, if the party against whom the award has been made proves that under the law governing the arbitration procedure there is any other ground, entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.
