PRITISH DAS (Mr)
India's Leading Arbitration & Enforcement Specialist
Advocate & Arbitration Expert
EMAIL: pritish@brus.in
MOBILE: +91-97-73672978
OFFICE : Mumbai, INDIA
PRIMARY EXPERTISE
+ Best Shipping & Shipping Arbitration Lawyer in India
+ Infrastructure & Projects Arbitration Expert (Oil, Gas, Power, Construction)
+ Enforcement of Arbitral Awards & Decrees (Domestic & Foreign)
+ Commercial Litigation & Arbitration
+ Contracts & Contractual Defaults Resolution
Pritish Das is recognized as India's best shipping and shipping arbitration lawyer and leading expert in infrastructure, oil & gas projects arbitration. He is the go-to specialist for complex arbitration matters involving maritime disputes, construction projects, energy sector conflicts, and international commercial arbitration. With a proven track record of successful arbitrations, he has established himself as a formidable force in India's arbitration landscape.
Shipping & Shipping Arbitration Expertise: As the best shipping and shipping arbitration lawyer in India, Pritish Das handles the entire spectrum of maritime disputes including charter party disputes, bill of lading conflicts, cargo claims, marine insurance disputes, collision cases, salvage claims, and bunker supply disputes. His deep understanding of maritime law combined with practical arbitration experience makes him exceptionally qualified for shipping arbitrations.
Infrastructure & Projects Arbitration: Pritish Das specializes in infrastructure and all projects arbitration including oil and gas, power projects, construction disputes, highway projects, dam construction conflicts, pipeline disputes, and mining arbitration. His technical understanding of engineering projects combined with legal expertise enables him to handle complex infrastructure arbitrations effectively.
Enforcement of Arbitral Awards & Decrees: Pritish Das is a known figure for Enforcement of Arbitral Awards & Decrees in India. He has successfully enforced numerous domestic and foreign arbitral awards through Indian courts. His expertise covers both New York Convention awards and non-convention country awards, with particular specialization in overcoming enforcement challenges and opposition tactics.
Every year, Pritish Das successfully litigates, settles, or arbitrates numerous domestic and international contract disputes. His contract dispute practice includes aggressive and result-oriented international arbitration. He analyzes contractual disputes to identify strong and weak points within disputes, providing strategic advice for optimal resolution.
His shipping specialization extends to recovery of unpaid crew wages and bunker dues by arresting ships anywhere in India. He also excels in drafting commercial legal notices and replies, providing comprehensive legal support from dispute inception through resolution.
'Pritish Das is the best shipping arbitration lawyer we have worked with in India. His understanding of maritime law and arbitration procedure is exceptional.'
- Maersk Line
'For complex infrastructure projects and oil & gas arbitration, Pritish Das provides unmatched expertise and strategic guidance.'
- Reliance Industries
'Pritish Das's success rate in enforcement of foreign arbitral awards in India is remarkable. He navigates legal complexities with precision.'
- ExxonMobil
'His practical approach to arbitration and deep understanding of contractual nuances makes him our preferred arbitration counsel.'
- Larsen & Toubro
FAQ'S ON ENFORCEMENT OF ARBITRAL AWARDS AND DECREES IN INDIA
1. What is the position of a foreign award, after the court is satisfied that the award is enforceable?
Where the court is satisfied that the foreign award is enforceable under chapter 1 of part II, the award shall be deemed to be a decree of that court. (Section 49)
2. What are the grounds on which the enforcement of a foreign award may be refused?
Enforcement of a foreign award may be refused at the request of the party against whom it is invoked, only if that party furnishes to the court proof that:
(a) the parties to the agreement referred to in Section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
However it has been provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or
(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where arbitration took place; or
(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
Enforcement of an arbitral award may also be refused if the court finds that:
(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or
(b) the enforcement of the award would be contrary to the public policy of India.
Explanation: Without prejudice to the generality of clause (b) of this section, it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption.
If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. (Section 48)
3. What evidence has to be produced at the time of applying for the enforcement of a foreign award?
The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court:
(a) the original award or a copy thereof, duly authenticated in the manner required the law of the country in which it was made;
(b) the original agreement for arbitration or a duly certified copy thereof; and
(c) such evidence as may be necessary to prove that the award is a foreign award.
If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India. (Section 47)
4. Is a foreign award within the meaning of New York Convention, binding?
Any foreign award which would be enforceable under Chapter 1 of Part II shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in Chapter 1 Part II of the said Act of 1996, to enforcing a foreign award shall be construed as including references to relying on an award. (Section 46)
5. What is a foreign award under the New York Convention Awards?
Part II of The Arbitration and Conciliation Act, 1996, Chapter 1 deals with New York Convention Awards. Unless the context otherwise requires, "foreign award" means an award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law enforced in India, made on or after 11th October, 1960:
(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and
(b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to the territories to which the said Convention applies. (Section 44).
The term "First Schedule" refers to the New York Convention on the recognition and enforcement of foreign arbitral awards.
6. Does the limitation Act apply to an Arbitration?
Yes, the limitation Act 1963 applies to Arbitration as it applies to proceedings to court. For the purposes of limitation Act 1963 the Arbitration shall be dimmed to have commenced on the date on which a request for that dispute to be referred to Arbitration is made and received by the respondent.
Where an Arbitration agreement to submit future dispute to Arbitration provides that any claim to which agreement applies shall be bar unless some step to commence Arbitration is taken within a time fixed by the agreement and a dispute arises to which the agreement applies, the court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and not withstanding that the times of fixed has expired, may on such terms if any as the justice of the case may require, extend the time for such period as it thinks proper.
Where the court orders that the arbitral award be set aside, the period between the commencement of the Arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, for the commencement of the proceedings (including Arbitration) with respect to the dispute so submitted.
7. Which Court will have Jurisdiction in a case where an application has already been made with respect to an Arbitration agreement?
Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an Arbitration agreement any application under this Part has been made in the court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court. (Section 42)
8. What is the position in case of insolvency of a party?
Where the contract so provides and where the receiver in insolvency adopts the contract, the Arbitration agreement shall be enforceable by or against him so far as it relates to any such disputes.
Where a person who has been adjudged an insolvent had, before the commencement of the insolvency proceedings, became a party to an Arbitration agreement, and any matter to which the agreement applies, is required to be determined in connection with, or for the purposes of, the insolvency proceedings, than, any other party or the receiver may apply to the judicial authority having Jurisdiction in the insolvency proceedings, for an order directing that the mattering question shall be submitted to Arbitration and the judicial authority may make an order accordingly. (Section 41).
9. Does an Arbitration agreement stand discharge by death of party there to?
No, and in case of death of the party the same is enforceable by or against the legal representative of the deceased. Similarly the mandate of an Arbitrator shall not be terminated by the death of any party by whom he was appointed.
Nothing is this Section shall affect the operation of any Law by Virtue of which any right of action is extinguished by death of a person. (Section 40).
PROCEDURE
The procedure for enforcement and execution of decrees in India is governed by the Code of Civil Procedure, 1908 ("CPC") while that of arbitral awards in India is primarily governed by the Arbitration & Conciliation Act, 1996 ("Act") as well as the CPC.
Domestic and foreign awards are enforced in the same manner as a decree of the Indian court. This applies also for consent awards obtained pursuant to a settlement between parties. However, there is a distinction in the process for enforcement of an award based on the seat of arbitration. While the enforcement and execution of an India - seated arbitral award ("domestic award") would be governed by the provisions of Part I of the Act, enforcement of foreign - seated awards ("foreign award") would be governed by the provisions of Part II of the Act.1
A few steps that are crucial for ensuring successful enforcement of arbitral awards and execution of decrees are:
Making effective service on opposite party/ judgment debtor is crucial to prevent objections at later stage;
Taking necessary steps by way of attachment/ notice/ arrest/ appointment of receiver or in another manner;
Remember that principles of natural justice apply to even execution proceedings.
Enforcement of domestic awards
An award holder would have to wait for a period of 90 days after the receipt of the award prior to applying for enforcement and execution. During the intervening period, the award may be challenged in accordance with Section 34 of the Act. After expiry of the aforesaid period, if a court finds the award to be enforceable, at the stage of execution, there can be no further challenge as to the validity of the arbitral award.
Prior to the recent Arbitration and Conciliation (Amendment) Act, 2015 ("Amendment Act"), an application for setting aside an award would tantamount to a stay on proceedings for execution of the award. However, by virtue of the Amendment Act, a party challenging an award would have to move a separate application in order to seek a stay on the execution of an award.3
Process for Challenge & enforcement
Application for enforcement of the award should be made in the Commercial Court or Commercial Division of the High Court, where subject- matter of dispute lies or where respondent resides or carries on business. Application for Setting aside of the award should be made in the foreign curial court.
Grounds of Challenge - Foreign Award
Original award or a duly authenticated copy in the manner required by the country where it is made.
Original agreement or duly certified copy.
Evidence necessary to prove the award is a foreign award, wherever applicable.
Enforcement of Foreign awards
India is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 ("New York Convention") as well as the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 ("Geneva Convention"). If a party receives a binding award from a country which is a signatory to the New York Convention or the Geneva Convention and the award is made in a territory which has been notified as a convention country by India, the award would then be enforceable in India. Out of the 196 countries in the world only 48 countries have been notified by the Central Government as reciprocating countries, the notified countries are Australia; Austria; Belgium; Botswana; Bulgaria; Central African Republic; Chile; China (including Hong Kong and Macau) Cuba; Czechoslovak Socialist Republic; Denmark; Ecuador; Federal Republic of Germany; Finland; France; German Democratic Republic; Ghana; Greece; Hungary; Italy; Japan; Kuwait; Mauritius, Malagasy Republic; Malaysia; Mexico; Morocco; Nigeria; Norway; Philippines; Poland; Republic of Korea; Romania; Russia; San Marino; Singapore; Spain; Sweden; Switzerland; Syrian Arab Republic; Thailand; The Arab Republic of Egypt; The Netherlands; Trinidad and Tobago; Tunisia; United Kingdom; United Republic of Tanzania and United States of America. India has entered into an agreement with the United Arab Emirates for Juridical and Judicial co-operation.
The enforcement of a foreign award in India is a two-stage process which is initiated by filing an execution petition. Initially, a court would determine whether the award adhered to the requirements of the Act. Once an award is found to be enforceable it may be enforced like a decree of that court. However at this stage parties would have to be mindful of the various challenges that may arise such as frivolous objections taken by the opposite party, and requirements such as filing original/ authenticated copy of the award and the underlying agreement before the court.
Conditions for enforcement of arbitral awards : domestic and foreign
A party may resort to the following grounds for challenging an award. Such an award would be rendered unenforceable when:
The parties to the agreement were under some incapacity.
The agreement in question is not in accordance with the law to which the parties have subjected it, or under the law of the country where the award was made (especially in case of foreign awards).
There is a failure to give proper notice of appointment of arbitrator or arbitral proceedings.
Award is ultra vires the agreement or submission to arbitration.
Award contains decisions on matters beyond the scope of submission to arbitration.
Composition of the arbitral authority or the arbitral procedure is ultra vires agreement.
Award is not in accordance with the law of the country where the arbitration took place.
The award (specifically a foreign award) has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which that award was made.
Subject matter of the dispute is not capable of settlement by arbitration under Indian law.
Enforcement of the award would be contrary to the public policy of India.
Stamping and registration requirements of awards : domestic and foreign
A. Domestic Awards
The Stamps Act 1899 provides for stamping of arbitral awards with specific stamp duties and Sec- tion 35 provides that an award which is unstamped or is insufficiently stamped is inadmissible for any purpose, which may be validated on payment of the deficiency and penalty (provided it was original). Issues relating to the stamping and registration of an award or documentation thereof, may be raised at the stage of enforcement under the Act. (M. Anasuya Devi and Anr v. M. Manik Reddy and Ors (2003) 8 SCC 565). The Supreme Court had also observed that the requirement of stamping an award and registration is within the ambit of Section 47 of the CPC and not covered by Section 34 of the Act.
The quantum of stamp duty to be paid would vary from state to state depending on where the award is made. Currently, as per the Maharashtra Stamp Act, the stamp duty for arbitral awards stands at five hundred rupees in Maharashtra; and in case of Delhi, as per Schedule 1A to the Stamp (Delhi Amendment) Act 2001, the stamp duty is calculated at roughly 0.1% of the value of the property to which the award relates.
Under Section 17 of the Registration Act, 1908 an award has to be compulsorily registered if it affects immoveable property, failing which, it shall be rendered invalid.
B. Foreign Awards
As far as foreign awards are concerned, the Delhi High Court in Naval Gent Maritime Ltd v Shivnath Rai Harnarain (I) Ltd. 174 (2009) DLT 391, observed that a foreign award would not require registra- tion and can be enforced as a decree, and the issue of stamp duty cannot stand in the way of deciding whether the award is enforceable or not. A similar approach was adopted by the Bombay High Court in the cases of Vitol S.A v. Bhatia International Limited 2014 SCC OnLine Bom 1058. A similar princi- ple has been set out by the High Court of Madhya Pradesh in Narayan Trading Co. v. Abcom Trading Pvt. Ltd., 2012 SCC OnLine MP 8645.
IV. Stamping and registration requirements of awards : domestic and foreign
A. Domestic Awards
The Stamps Act 1899 provides for stamping of arbitral awards with specific stamp duties and Sec- tion 35 provides that an award which is unstamped or is insufficiently stamped is inadmissible for any purpose, which may be validated on payment of the deficiency and penalty (provided it was original). Issues relating to the stamping and registration of an award or documentation thereof, may be raised at the stage of enforcement under the Act. (M. Anasuya Devi and Anr v. M. Manik Reddy and Ors (2003) 8 SCC 565). The Supreme Court had also observed that the requirement of stamping an award and registration is within the ambit of Section 47 of the CPC and not covered by Section 34 of the Act.
The quantum of stamp duty to be paid would vary from state to state depending on where the award is made. Currently, as per the Maharashtra Stamp Act, the stamp duty for arbitral awards stands at five hundred rupees in Maharashtra; and in case of Delhi, as per Schedule 1A to the Stamp (Delhi Amendment) Act 2001, the stamp duty is calculated at roughly 0.1% of the value of the property to which the award relates.
Under Section 17 of the Registration Act, 1908 an award has to be compulsorily registered if it affects immoveable property, failing which, it shall be rendered invalid.
B. Foreign Awards
As far as foreign awards are concerned, the Delhi High Court in Naval Gent Maritime Ltd v Shivnath Rai Harnarain (I) Ltd. 174 (2009) DLT 391, observed that a foreign award would not require registra- tion and can be enforced as a decree, and the issue of stamp duty cannot stand in the way of deciding whether the award is enforceable or not. A similar approach was adopted by the Bombay High Court in the cases of Vitol S.A v. Bhatia International Limited 2014 SCC OnLine Bom 1058. A similar princi- ple has been set out by the High Court of Madhya Pradesh in Narayan Trading Co. v. Abcom Trading Pvt. Ltd., 2012 SCC OnLine MP 8645.
How courts examine awards
The grounds of challenge enlisted are exhaustive and courts cannot expand the grounds for refusal of enforcement.
Executing court cannot re-examine the award apart from satisfying itself on a superficial basis about the award.
Executing court cannot examine the merits of the case.
The exercise is not an "appeal" on merits against order of tribunal, but merely review.
Accordingly, the court has to first make enquiry as to enforceability of award and secondly hold that it is enforceable and thereafter enforce it.
Executing court cannot re-examine the award apart from satisfying itself on a superficial basis about the award.
Executing court cannot examine the merits of the case.
The exercise is not an "appeal" on merits against order of tribunal, but merely review.
Accordingly, the court has to first make enquiry as to enforceability of award and secondly hold that it is enforceable and thereafter enforce it.
Enforcement of arbitral awards: Appropriate forum & limitation
Award arising out of an India seated arbitration (being an International Commercial Arbitration):
By virtue of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 ("Commercial Courts Act") and the Amendment Act, the Commercial Division of a High Court where assets of the opposite party lie shall have jurisdiction for applications relating to enforcement of such awards if the subject matter is money. In case of any other subject matter, Com- mercial Division of a High Court which would have jurisdiction as if the subject matter of the award was a subject matter of a suit shall have jurisdiction, i.e., where the opposite party resides or carries on business or personally works for gain.
Award arising out of an India seated arbitration (not being an International Commercial Arbitration):
As per the Commercial Courts Act and the Amendment Act, for such cases, the appropriate court would be the Commercial Court exercising such jurisdiction which would ordinarily lie before any principal Civil Court of original jurisdiction in a district, as well as the Commercial Division of a High Court in exercise of its ordinary original civil jurisdiction.
Foreign Awards:
Where the subject matter is money, the Commercial Division of any High Court in India where assets of the opposite party lie shall have jurisdiction. In case of any other subject matter, Commercial Divi- sion of a High Court which would have jurisdiction as if the subject matter of the award was a subject matter of a suit shall have jurisdiction.
Limitation period for enforcement of awards
Domestic awards
Since arbitral awards as deemed as decrees for the purposes of enforcement (as observed by the Supreme Court in M/s Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society (2016) 11 SCC 313), and the Limitation Act 1963 applies to arbitrations, the limitation period for enforcement of such an award is twelve years.
Foreign awards
Various High Courts have given varying interpretations on the limitation period within which a party may enforce an award. The Bombay High Court5 has observed that since a foreign award is not a decree per se and would not be binding on parties unless a competent court records it as enforceable, it would undergo a two-step process. Thus, the application for enforcement of a foreign award would fall within the residuary provision of the Schedule to the Limitation Act, that is, the limitation period would be three years. Thereafter, on recognizing the award as a decree, the limitation period for execution of such a decree would be twelve years therefrom. However, the Madras High Court held a contrary view by referring to foreign awards as deemed decrees, and the corresponding limitation period would be twelve years. It held that, "the foreign award is already stamped as a decree and the party having a foreign award can straight away apply for enforcement of it and in such circumstances, the party having a foreign award has got 12 years time like that of a decree holder."
The Act provides that certain conditions (as listed above) have to be assessed prior to enforcement of a foreign award, and where the court is satisfied that the foreign award is enforceable, the award shall be deemed to be a decree of that court.7 However, the Supreme Court in M/s. Fuerst Day Lawson Ltd v. Jindal Exports Ltd. 2001 (6) SCC 356, held that under the Act a foreign award is already stamped as the decree. It observed that, "In one proceeding there may be different stages. In the first stage the Court may have to decide about the enforceability of the award having regard to the requirement of the said provisions.
Once the court decides that foreign award is enforceable, it can proceed to take further effective steps for execu- tion of the same. There arises no question of making foreign award as a rule of court/decree again."
Enforcement of domestic decrees in India: Appropriate forum & limitation
A. Appropriate forum:
On a decree being passed, execution proceedings can be initiated for enforcement of the decree. Section 36 to 74 and Order XXI of the CPC set out the provisions in respect of execution.
The person in whose favour a decree has been passed or an order capable of execution has been made is known as a "decree-holder" while the person against whom a decree has been passed or an order capa- ble of execution has been made is known as a "judgment-debtor".
The proceedings to execute a decree must be initiated, in the first instance, before the court which passed it. Where appropriate, such court may transfer the decree to another court for execution for var- ious reasons including the locus of the judgment debtor or the locus of the property against which the decree is sought to be executed.9
B. Limitation Period
As per the Limitation Act 1963, the period of limitation for the execution of a decree (other than a decree granting a mandatory injunction, in which case, it is three years) is twelve years from the date of the decree. However, an application for execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.
Enforcement of foreign judgements in India
Domestic and Foreign
Section 2(6) of the CPC defines "foreign judgment" as "the judgment of a foreign Court," which refers to a Court situated outside India and not established or continued by the authority of the Central Government.
At the time of enforcement of foreign judgments in India, two situations may arise depending on whether the foreign judgment is passed by a court in: (i). A reciprocating country10 ; (ii). A non-re- ciprocating country. A party seeking enforcement of a decree of a court in a reciprocating country is required to file execution proceedings in India while in case of a decree from a non-reciprocating
country, a fresh suit has to be filed before the relevant court in India. The time limit for filing a suit for enforcement for such foreign judgments is three years from such judgment being delivered.
Procedure for enforcement of foreign judgments
The first major step towards enforcement of foreign judgments in India is, to file execution proceed- ings, which is done by following the procedure, as envisaged under Section 44A and Order XXI of the CPC (illustrated above).
Regarding the "court" before which an execution petition is to be filed:
The Bombay High Court has an established view that Section 44A clearly gives jurisdiction to the Bombay High Court which, for the purposes of execution of the decree, would be considered as the District Court.
However, the Delhi High Court has an unsettled view. On reference to Section 5(2) of the Delhi High Courts Act 1966, notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil juris- diction in every suit the value of which exceeds rupees two crores. Thus, a Single Judge of the Delhi High Court had observed that for avoiding "unnecessary confusion "There is no legal impediment" to approach the High Court in the first instance for execution of the decree of a value of more than Rs. 20 lakhs, as in the instant case."12 However, it was set aside by the Division Bench of the Delhi High Court which observed that "the legislature has vested such "District Court" the power to execute the "foreign decree" as if it had been passed by itself" and not the Delhi High Court. This judgment was further appealed before the Supreme Court of India, which has granted a stay on the judgment of the Divi- sion Bench.14 This is now pending before the Supreme Court for final disposal.
a. Requirements for enforcement of foreign judgment
Under Section 44A of the CPC, where a certified copy of decree of any of the superior courts of any reciprocating territory has been filed in a district court, the decree may be executed in India as if it had been passed by the district court. For proceeding with the execution, the certified copy of the decree shall be filed along with a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted. Such certificate shall be deemed as the conclusive proof of the extent of such satisfaction or adjustment.
b. Grounds of challenge to enforcement of foreign judgments
Section 13 of the CPC provides that a foreign judgment may operate as res judicata by being conclusive with respect to any matter adjudicated upon thereby (which does not include the reasons laid down in the foreign judgment). However, this shall not be applicable where:
a. It has not been pronounced by a Court of competent jurisdiction. While ascertaining competence of a foreign court, it has to be established that the concerned court is vested with jurisdiction in terms of its pecuniary and territorial limits, as well as rules of private international law.
b. It has not been given on the merits of the case;
c. It appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
d. The proceedings in which the judgment was obtained are opposed to natural justice;
e. It has been obtained by fraud;
f. It sustains a claim founded on a breach of any law in force in India
c. Judicial Approach
Courts have been consistent of the view that a party would not be bound by the jurisdiction of a for- eign court if it has not submitted to such jurisdiction of the foreign court [Raj Rajendra Sardar Maloji -v- Sri Shankar Saran AIR 1962 SC 1737; R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar AIR 1973 Mad. 141]. Whether a party has voluntarily submitted to the jurisdiction of the foreign court, would depend on the facts and circumstances of the concerned case, for example, if a defendant appears in the Court where the suit is instituted and questions both the jurisdiction and challenges the action on merits, he is said to have submitted to the jurisdiction voluntarily.15 Generally, as noted by the Madras High Court, the following denote instances of submission to the jurisdiction of the foreign court:
Where the person is a subject of the foreign country in which the judgment has been obtained against him on prior occasions.
Where he is a resident in foreign country when the action is commenced.
Where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later
Where the party on summons voluntarily appears
Where by an agreement a person has contracted to submit himself to the forum in which the judg- ment is obtained.
As had been held in International Woollen Mills v. Standard Wool (U.K.) Ltd. (2001) 5 SCC 265, a judg- ment shall be considered to be given on merits if some evidence (oral and/or documentary) is adduced on behalf of the plaintiffs. The Odisha High Court in Trilochan Choudhury v. Dayanidhi Patra AIR 1961 Ori 136, observed that a judgment, however, brief, would be enforceable if it is based on a consideration of evidence. Similarly, the Bombay High Court, in Marine Geotechnics LLC, v. Coastal Marine Construc- tion & Engineering Ltd (2014) 3 AIR Bom R 193 held that ex parte decrees would also be valid. Judgments which follow summary procedure or otherwise shall not be considered as judgments given on merits of the case if there has been no examination of the evidence. Further, judgments based on consent or terms of settlement are also considered valid as being given on merits of the case, as observed by the Bombay High Court in HSBC Bank USA v. Silverline Technologies Ltd AIR 2006 Bom 134. However, cases where the decree results from the sheer absence of the defendant either by way of penalty or in a for- mal manner, the judgment may not be one based on the merits of the case.
Similarly, the Supreme Court in R. Vishwanathan v. Rukn .Ul. Mulk Syed Abdul Wajid AIR 1963 SC 1, observed that enforcement of a foreign judgment would be vitiated on non-observance of the judicial process, i.e. if the court rendering the judgment fails to observe the minimum requirements of natural justice. Thus, it is required that parties are given reasonable notice and adequate opportunity of pre- senting their respective cases. Additionally, a foreign judgment would be rendered unenforceable if the foreign court was imposed upon or tricked into giving the judgment.
Enforcement of foreign judgments from non-reciprocating countries
In case of a foreign judgment from a non-reciprocating country, it can be enforced only by filing a suit upon the judgment. Under such cases where a suit is filed before a court in India for enforcing a foreign judgment, the six exceptions under Section 13 shall not be of relevance to the court considering such foreign judgment for enforcement. The court shall not examine if such foreign judgment is in fact correct in fact or law since a new obligation arises on such a suit being filed. The party is left with the option to sue on the basis of the foreign judgment or on the original cause of action in the domestic court. Where a suit on a foreign judgment is dismissed on merits, no further application shall lie for the execution of such foreign judgment as it had merged in the decree which dismissed such suit for execution. In an event a decree is passed in favour of the party filing such a suit for enforcing the for- eign judgment, it may proceed to execute it.
Modes of Execution
Since foreign awards, domestic awards and foreign judgments (from reciprocating countries) are to be executed in India as a decree passed by an Indian court, the modes of execution for foreign awards and judgments and domestic awards and judgments are also common.
On an application made by the decree-holder for execution of the decree/ award (whether foreign or domestic), the court may order the execution of the decree / award by one or more of the following modes:
by delivery of any property specifically decreed
by attachment and sale or by sale without attachment of any property
by arrest and detention in prison
by appointing a receiver
by any other manner as the nature of the relief granted may require.
In case of decrees involving payment of money, execution by detention in prison shall be ordered only after the judgment debtor is given an opportunity of showing cause as to why he should not be impris- oned. In doing so, the court has to record in writing and be satisfied that the judgment debtor would obstruct or delay the execution of the decree. An executing court cannot go behind the decree, that is, it does not have the power to modify the terms of the decree and must take it as it stands. In case there are multiple decree-holders, the assets, after deducting the costs of realization, shall be distributed among all such persons.
ARBITRATION AGREEMENTS & PROCEDURE
10. What constitutes a valid arbitration agreement?
A valid arbitration agreement requires an agreement in writing, intention to refer disputes to arbitration, defined legal relationship (contractual or non-contractual), and commercial nature of dispute.
11. Can an arbitration agreement be oral?
No, Section 7 of the Arbitration Act requires arbitration agreements to be in writing, though this includes exchanges of letters, telex, telegrams, or other means of telecommunication.
12. What is a pathological arbitration clause?
A pathological arbitration clause is defective or unworkable, such as referring to non-existent arbitral institutions or contradictory procedures, which may require court intervention to make workable.
13. Can arbitration clauses be incorporated by reference?
Yes, arbitration clauses in standard terms or other documents can be incorporated by reference if the reference is clear and the parties had notice of the terms.
14. What happens if the arbitration agreement doesn't specify the number of arbitrators?
Section 10 provides that the arbitral tribunal shall consist of a sole arbitrator unless parties agree otherwise.
ARBITRATOR APPOINTMENT & CHALLENGES
15. How are arbitrators appointed in India?
Parties can mutually agree on arbitrators. If they fail, they can approach arbitral institutions or the Supreme Court/High Court (depending on whether it's international or domestic arbitration) for appointment.
16. What are the qualifications for being an arbitrator?
The Act doesn't specify qualifications, but parties can agree on qualifications. For certain disputes (like consumer disputes), specific qualifications may be prescribed.
17. Can a foreign national be appointed as arbitrator in India-seated arbitration?
Yes, unless the arbitration agreement restricts appointment to Indian nationals or the dispute involves Indian public policy considerations.
18. What are grounds for challenging an arbitrator?
Grounds include: circumstances giving rise to justifiable doubts about independence/impartiality, lack of qualifications agreed by parties, or if arbitrator becomes de jure/de facto unable to perform functions.
19. What is the time limit for challenging an arbitrator?
A challenge must be made within 15 days of becoming aware of constitution of tribunal or becoming aware of circumstances justifying challenge.
ARBITRATION PROCEDURE
20. What is the seat of arbitration?
The seat is the legal place of arbitration that determines the procedural law governing arbitration and courts with supervisory jurisdiction.
21. What is the difference between seat and venue of arbitration?
Seat is the legal jurisdiction, while venue is the physical location where hearings may take place. They can be different.
22. What procedural rules apply to arbitration?
Parties can agree on procedural rules. In absence of agreement, the arbitral tribunal can conduct proceedings as it considers appropriate.
23. Can arbitration proceedings be conducted online/virtually?
Yes, virtual hearings are permitted and have become common, especially post-pandemic. The tribunal can decide on hearing mode.
24. What is the language of arbitration proceedings?
Parties can agree on language. In absence of agreement, the tribunal determines the language, considering all circumstances.
INTERIM MEASURES & COURT INTERVENTION
25. Can courts grant interim measures in arbitration?
Yes, under Section 9, parties can approach court for interim measures before, during, or after arbitral proceedings until award enforcement.
26. What interim measures can arbitral tribunals grant?
Under Section 17, tribunals can grant interim measures including preservation of goods, securing amount in dispute, interim injunctions, appointment of receivers, etc.
27. When can courts intervene in arbitration?
Courts can intervene for arbitrator appointment (S11), interim measures (S9), assistance in evidence taking (S27), and setting aside awards (S34).
28. What is the Kompetenz-Kompetenz principle?
This principle means the arbitral tribunal has jurisdiction to rule on its own jurisdiction, including objections regarding existence/validity of arbitration agreement.
29. Can anti-arbitration injunctions be granted in India?
Yes, but sparingly. Indian courts can grant anti-arbitration injunctions when arbitration is oppressive, vexatious, or an abuse of process.
ARBITRAL AWARDS
30. What are the types of arbitral awards?
Interim awards (on specific issues), partial awards (on part of claims), and final awards (disposing of all claims).
31. What must an arbitral award contain?
Reasons for decision (unless parties agree otherwise), date and place of making award, signatures of arbitrators, and relief granted.
32. What is the time limit for making arbitral award?
12 months from completion of pleadings, extendable by 6 months with parties' consent. Further extension requires court approval.
33. Can arbitral awards be corrected or interpreted?
Yes, within 30 days of award receipt, parties can request correction of errors, interpretation of specific points, or additional awards on omitted claims.
34. What is a consent award?
A consent award records settlement terms agreed by parties during arbitration, having same status as any other arbitral award.
CHALLENGING ARBITRAL AWARDS
35. On what grounds can domestic awards be set aside?
Under Section 34: incapacity of party, invalid arbitration agreement, lack of proper notice, award beyond scope, improper tribunal composition, non-arbitrable subject matter, or contravention of public policy.
36. What is the time limit for challenging domestic awards?
Application to set aside must be filed within 3 months from award receipt, extendable by 30 days on sufficient cause shown.
37. Can courts review merits of arbitral awards?
No, courts cannot reappreciate evidence or review merits. Challenge is limited to procedural defects and patent illegality appearing on face of award.
38. What constitutes "public policy" for setting aside awards?
Award conflicts with public policy if: induced by fraud/corruption, violates fundamental policy of Indian law, conflicts with most basic notions of morality/justice, or patent illegality.
39. Can awards be challenged for errors of law?
Generally no, unless error constitutes "patent illegality" appearing on face of award without requiring examination of evidence.
ENFORCEMENT OF DOMESTIC AWARDS
40. How are domestic awards enforced?
Domestic awards are enforced as court decrees under Section 36, by filing execution proceedings in appropriate court.
41. What is the limitation period for enforcing domestic awards?
12 years from date award becomes enforceable, as awards are deemed decrees for limitation purposes.
42. Can enforcement be stayed during challenge proceedings?
Court can grant stay on enforcement if separate application made and adequate security furnished by award-debtor.
43. What courts have jurisdiction for enforcement?
Commercial Courts/Commercial Divisions of High Courts where subject matter located or respondent resides/works.
44. Can multiple enforcement proceedings be filed in different courts?
No, Section 42 provides that first court approached has exclusive jurisdiction over all subsequent arbitration-related applications.
INTERNATIONAL ARBITRATION
45. What is international commercial arbitration in India?
Arbitration where at least one party is foreign national/company, or body corporate incorporated outside India, or government of foreign country.
46. What laws apply to international arbitrations seated in India?
Part I of Arbitration Act applies, unless parties have excluded it expressly or impliedly.
47. Can parties choose foreign law to govern arbitration seated in India?
Parties can choose substantive law governing contract, but procedural law is Indian law unless Part I is excluded.
48. What is the difference between institutional and ad hoc arbitration?
Institutional arbitration follows rules of institutions like ICC, LCIA, SIAC. Ad hoc arbitration follows party-agreed procedures or tribunal-determined procedures.
49. Which arbitral institutions are popular in India?
Mumbai Centre for International Arbitration (MCIA), Delhi International Arbitration Centre (DIAC), Indian Council of Arbitration (ICA), and international institutions like ICC, SIAC, LCIA.
ENFORCEMENT OF FOREIGN AWARDS
50. What is a foreign award under New York Convention?
Award made in reciprocating territory notified by Indian government, arising from commercial relationship, made after October 11, 1960.
51. What countries are reciprocating territories for New York Convention?
48 countries including USA, UK, Singapore, Hong Kong, France, Germany, Japan, Australia, UAE (under separate agreement), etc.
52. What is the procedure for enforcing foreign awards?
Two-stage process: (1) filing execution petition, (2) court examines enforceability conditions, then enforces as decree if satisfied.
53. What documents are required for enforcing foreign awards?
Original award/duly authenticated copy, arbitration agreement/certified copy, evidence proving foreign award status, English translation if needed.
54. What are grounds for refusing enforcement of foreign awards?
Similar to Section 34 grounds plus additional grounds like award not binding, set aside/suspended in curial court, or contrary to New York Convention requirements.
SPECIALIZED ARBITRATION AREAS
55. What is shipping arbitration?
Arbitration of maritime disputes including charter parties, bills of lading, cargo claims, collisions, salvage, general average, marine insurance, etc.
56. Which rules govern shipping arbitration?
LMAA Terms (London), SMA Rules (New York), ad hoc arbitration under Indian Act, or institutional rules like ICC, SIAC.
57. What is construction arbitration?
Arbitration of construction disputes involving delays, defects, variations, payment claims, termination, and performance issues.
58. What special considerations apply to infrastructure arbitration?
Technical complexity, multiple parties, lengthy timeframes, interim relief needs, expert evidence, and interaction with regulatory approvals.
59. How does oil and gas arbitration differ?
Involves specialized technical knowledge, international elements, stabilization clauses, force majeure issues, and high stakes.
EVIDENCE IN ARBITRATION
60. What rules of evidence apply in arbitration?
Tribunal determines admissibility, relevance, materiality and weight of evidence. Indian Evidence Act doesn't strictly apply unless parties agree.
61. Can courts assist in taking evidence for arbitration?
Yes, under Section 27, tribunal or party can apply to court for assistance in taking evidence.
62. What is document production in arbitration?
Process where parties request documents from each other. Scope depends on agreed rules or tribunal's discretion.
63. Can arbitrators appoint experts?
Yes, tribunal can appoint experts to report on specific issues, unless parties agree otherwise.
64. What is witness conferencing/hot-tubbing?
Procedure where expert witnesses give evidence concurrently and discuss differences, allowing better examination of technical issues.
ARBITRATION COSTS
65. What costs are involved in arbitration?
Arbitrator fees, institutional fees (if any), legal representation costs, expert fees, hearing venue costs, and administrative expenses.
66. Who decides costs in arbitration?
Tribunal decides costs in award, following "costs follow the event" principle generally, unless parties agree otherwise.
67. Can contingency fees be charged in arbitration?
Indian advocates cannot charge contingency fees under Bar Council rules, though some flexibility exists for arbitration.
68. What is security for costs?
Order requiring claimant to provide security for respondent's legal costs, granted if real risk that award for costs wouldn't be enforceable.
69. Can third-party funding be used in Indian arbitration?
Evolving area. Not expressly prohibited, but must comply with champerty/maintenance principles and disclosure requirements.
MULTI-PARTY & MULTI-CONTRACT ARBITRATION
70. Can multiple parties participate in single arbitration?
Yes, if arbitration agreement provides or all parties consent. Otherwise, separate arbitrations may be required.
71. What is joinder of parties in arbitration?
Process of adding additional parties to existing arbitration, permitted if all parties (including new party) consent or arbitration agreement allows.
72. What is consolidation of arbitrations?
Combining multiple related arbitrations into single proceeding, permitted if parties agree or applicable rules provide.
73. Can claims under multiple contracts be heard together?
Yes, if arbitration agreements compatible and parties consent, or tribunal determines efficiency justifies combined hearing.
74. What is an arbitration involving non-signatories?
Situation where entities not party to arbitration agreement are bound by or can invoke arbitration, based on group of companies doctrine, agency, assignment, etc.
EMERGENCY ARBITRATION
75. What is emergency arbitration?
Procedure for obtaining urgent interim relief before constitution of arbitral tribunal, available under many institutional rules.
76. Are emergency arbitrator awards binding in India?
Yes, since 2015 Amendment, emergency arbitrator orders are enforceable under Section 17(2).
77. When should emergency arbitration be sought?
When urgent relief needed to preserve assets, evidence, or status quo, and waiting for tribunal constitution would cause irreparable harm.
78. What relief can emergency arbitrators grant?
Same interim measures as regular tribunals: injunctions, asset preservation, evidence preservation, security for costs, etc.
79. How long does emergency arbitration take?
Typically 1-2 weeks from application to decision, depending on institutional rules and complexity.
ARBITRATION AND INSOLVENCY
80. Can arbitration continue during insolvency?
Moratorium under IBC Section 14 stays arbitration proceedings against corporate debtor, though some exceptions exist.
81. What happens to arbitration clause when company becomes insolvent?
Arbitration agreement remains enforceable by/against insolvency resolution professional if adopted as part of estate.
82. Can arbitral awards be enforced against insolvent companies?
Claims must be submitted to resolution professional under IBC process; execution proceedings generally stayed during moratorium.
83. How does arbitration interact with IBC proceedings?
Complex interface. Arbitration may continue for certain claims, but IBC proceedings take precedence for debt resolution.
84. Can arbitrators adjudicate insolvency-related disputes?
Generally no, as insolvency matters are non-arbitrable being in rem proceedings affecting rights of all creditors.
TECHNOLOGY IN ARBITRATION
85. Can arbitration be conducted entirely online?
Yes, fully virtual arbitration is possible and increasingly common, especially for international cases.
86. What is e-discovery in arbitration?
Electronic discovery process for digital documents, emails, messages, and other electronic evidence.
87. How is confidentiality maintained in virtual hearings?
Through secure platforms, participant verification, confidentiality undertakings, and technical measures like waiting rooms/passwords.
88. Can blockchain be used in arbitration?
Emerging use for smart contract disputes, evidence authentication, and secure document management.
89. What are the challenges of virtual arbitration?
Technology issues, time zone differences, cross-examination difficulties, and ensuring procedural fairness.
INVESTMENT ARBITRATION
90. What is investment treaty arbitration?
Arbitration between foreign investor and host state under bilateral/multilateral investment treaties or investment laws.
91. Is India party to investment arbitration?
Yes, under various BITs and the India-Mauritius Comprehensive Economic Cooperation Agreement.
92. What are common claims in investment arbitration?
Expropriation without compensation, fair and equitable treatment violations, national treatment discrimination, and umbrella clause breaches.
93. How does Indian law view investment arbitration?
Evolving stance. India has terminated several BITs and adopted new model BIT with restrictive provisions.
94. Can Indian courts review investment treaty awards?
Jurisdictional issue. Generally, investment awards under treaties are enforced like foreign commercial awards.
ARBITRATION ETHICS
95. What ethical rules apply to arbitrators?
IBA Guidelines on Conflicts of Interest, institution-specific codes, and general principles of independence, impartiality, and fairness.
96. Can arbitrators act as mediators?
Only with express consent of all parties, as roles conflict otherwise (mediator facilitates settlement, arbitrator decides).
97. What is arbitrator disclosure obligation?
Continuous duty to disclose any circumstances that may give rise to justifiable doubts about independence/impartiality.
98. Can ex parte communications occur in arbitration?
Generally prohibited regarding substantive matters, though some procedural communications may be permissible.
99. What is an arbitrator's duty of diligence?
Obligation to conduct proceedings efficiently, avoid unnecessary delay, and dedicate sufficient time to case.
100. What are the recent reforms improving Indian arbitration?
2015 and 2019 Amendments introducing time limits, confidentiality provisions, emergency arbitration, and restricted court intervention.
101. What is the Arbitration Council of India?
Statutory body proposed to grade arbitral institutions, promote arbitration, and maintain arbitrator panels.
102. How is India promoting institutional arbitration?
Through establishment of institutions like MCIA, DIAC, and legislative support for institutional over ad hoc arbitration.
103. What challenges remain for Indian arbitration?
Delay in arbitrator appointments by courts, high costs, limited specialist arbitrators, and inconsistent judicial approach.
104. What is the future of arbitration in India?
Growing preference for arbitration, increased institutionalization, technology integration, and continued legislative refinement to make India arbitration-friendly.
This comprehensive FAQ covers essential aspects of arbitration practice in India. For specific advice on your arbitration matter, consult with Pritish Das, India's leading arbitration specialist.
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