The Guide to Challenging and Enforcing Arbitration Awards- Part I
As with a verdict in a court of law, an arbitration award (or arbitral award) is a finding of the merits by an arbitration tribunal. When the claimant’s claims are rejected (and no money needs to be paid by either side), or when the award is non-monetary in character, it is nevertheless referred to as an ‘award.’
As a technique of resolving economic disputes, arbitration is particularly popular (for a summary of the various arenas in which arbitration is usually chosen, see the specific article on “arbitration”).
As a result, it’s generally easier to enforce an arbitral award in a foreign country than to enforce a court ruling in international trade.
If an award given in one state is freely enforced in another state, the New York Convention of 1958 provides certain limited defenses. They are as following:
- As per relevant legislation, one of the parties to the arbitration agreement was incompetent or ineligible to arbitrate;
- the other party was not properly notified of the appointment of the arbitrator or of arbitration proceedings;
- the third party was otherwise unable to present its case;
- it contains decisions on matters outside the scope of the arbitration; the arbitral authority was not composed in accordance with the arbitration agreement;
- it contains decisions on matters outside the scope of the arbitration;
- A competent authority in the nation where the arbitration took place (or according to the arbitration agreement’s law) has set aside or suspended the decision, or enforcement would be contrary to “public policy.”
- The award has not yet become binding upon the parties.
Modification, clarification, or correctness of a judgement
On the other hand, a party may seek the arbitral tribunal within 30 days of receiving an arbitration award to fix errors in computation, clerical or typographical work. As well as any other errors of a similar type appear in the award by giving notice of the request to the other party.
In addition, if both parties agree, a party may ask the arbitral tribunal to interpret a specific point or part of the ruling by notifying the other party.
A party’s request for a correction or interpretation must address within 30 days of the arbitral tribunal’s receipt of the request, and any such interpretation becomes part of the arbitral award. The arbitral tribunal may also, on its own initiative, fix any of the above-mentioned errors within 30 days of the award date.
Another provision in section 33[3] allows a party to obtain an extra award from the arbitral tribunal within 30 days of receiving it if both parties do not otherwise accept it. Done with notice to the other party and within 30 days of receiving it.
The arbitral tribunal makes the additional arbitral award within 60 days of receiving the request if it considers the request justified.
As a result, it is also possible for an arbitral tribunal to extend. Therefore if necessary, the time limit must make a correction, provide an interpretation, or make an extra award.
Jurisdiction’s procedural law application to the recognition and execution of an arbitral award
Indian law recognizes and enforces arbitral awards under the Arbitration Act.
A member of both the Geneva Convention of 1927 (the Geneva Convention)[4] and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958,[5] India is a party to both conventions (i.e., the New York Convention). Other bilateral investment treaties that India has signed feature a dispute resolution provision. On the contrary, India is not a signatory to The Convention for the Settlement of Investment Disputes between States and Nationals of Other States (i.e., the ICSID Convention).
For purposes of recognition procedures, must the petitioner identify assets within the court’s jurisdiction that will be subject to enforcement?
An award holder must file its application to enforce an arbitral award before the competent court[6] in the jurisdiction where the award debtor’s assets are located. For example, in Bulk Trading SA v. Dalmia Cement (Bharat) Limited,[7] and Cholamandalam Investment, 2005,[8] the award holder can file execution petitions simultaneously in all such courts.
Therefore, as a matter of practice, the applicant generally files a list of assets held by the judgment of a debtor with the enforcement petition. To obtain disclosure of assets held by a defendant whose assets cannot be identified, a court order similar to Order XXI, Rule 41 (Civil Procedure Code, 1908)[9] may be filed by the award debtor’s award holder (CPC).
Documentation required to obtain the recognition of an arbitral award
Concerning a foreign judgment, Section 47(1) of the Arbitration Act[10] states that the party seeking enforcement of a judgment must present to the court: (1) The judgment in its original form or a copy thereof duly authenticated following applicable laws; (2) The arbitration agreement in its original form or a duly certified copy thereof; and (3) Hugo Neu Corporation v. Lloyds Steel Industries, 2009,[11] the petitioner’s attorney filed an affidavit after the first award and other papers were destroyed.
In so far as a domestic award is concerned, the original copy of the award must be filed in court, Indian courts have held that in the case of a domestic award if the original award is not filed in court, a certified copy may be filed with an endorsement regarding whether the original award is duly stamped specifying whether the original award is duly registered (Union of India v. M/S Gala Constructions, 2015).[12]
Do I need to provide a translation of the needed documentation? Does it have to? If so, in what form must it be?
Under Section 47(2) of the Arbitration Act,[13] any award or agreement sought to be submitted under Section 47, subsection (1) must be translated into English and confirmed as correct by a diplomatic or consular agent of the country from which the award is sought.
As a result, there are a variety of ways to certify the award’s accuracy in India. In this case, a notary authorised under the Notaries Act of 1952. It must certify that a translated copy of the award is correct (KTC Korea Company Limited v. Hobb International Pvt Ltd, 2004).[14]
Recognisation and enforcement of partial or interim awards by the courts
Any interim or partial award can be enforced under Section 36 of the Arbitration Act (domestic award). Or even under Section 47 of the Arbitration Act (international award). However, it is important to emphasize that the finality of the award is the determining factor for recognition and enforcement under Indian law. Finality is required for interim or partial awards to be enforceable. Several awards can’t be enforced because of their nature after a judgment has been rendered. But before it is enforced under Section 17 of the Act, arbitration tribunals may provide temporary protection measures.
As a result, recent amendments to Section 17 of the Arbitration (Amendment) Act 2015 (the Amendment Act)[15] give the arbitral tribunal the same power to make orders under Section 17 as a court has to make orders under Section 9 of the Act, and any such order passed by the arbitral tribunal is enforceable under the CPC, in the court.
Unrecognised Awards
Why do the courts rely on a different set of reasons than those stated in Article V of the Convention?
As with Article V of the Convention, the Arbitration[16] Act provides identical grounds for refusing acknowledgment of a judgment. Under the Arbitration Act, Section 48(1), the following are the grounds for refusing to recognize and enforce a foreign award.
- the parties to the agreement were in some way incompetent in terms of the law applicable to them. Or the aforementioned agreement is invalid under the legislation to which the parties have subjected it;
- insufficient notice of the arbitrator or arbitral proceedings;
- the award deals with a difference not contemplated by the arbitration agreement or not falling within its terms; it contains decisions on matters outside of the arbitration agreement;
- and the arbitrator’s composition.
- not yet binding on the parties. Hence, A country’s responsible authority hasn’t yet revoked the order or halted it. Where its made or under its laws.
Under Section 48(2) of the Arbitration Act. The court may also deny the enforcement of a foreign decision if it determines that:
- the subject matter of the dispute is not capable of settled by arbitration under Indian law; or
- the enforcement of the award would be contrary to the public policy of India.
Recent amendments to the Act have clarified that an award conflicts with the public policy if:
To challenge a domestic award, one must rely on the same grounds as to challenge a foreign award.
Appealing for a decision in your jurisdiction that recognises an arbitral award
As a result, Section 36 (domestic award) and Section 49 of the Arbitration Act[17] provide that an award is regarded to be one of the court’s judgments if the executing court is satisfied that it is either identifiable or enforceable (or both) (foreign award). Therefore, It may implement by any applicable CPC laws. About the execution of a decree.
[1] Arbitration and Conciliation Act 1996, S 31.
[2] Ibid, s 31(2)
[3] Ibid, s 33.
[4] Geneva Convention, 1927.
[5] Recognition and Enforcement of Foreign Arbitral Awards of 1958
[6] Tata International Ltd. v. Trisuns Chemical Industry Ltd., 2001, SCC Online Bom 905
[7] 2005, SCC Online Del 1389
[8] SCC Online Del 1389
[9] Civil Procedure Code, 1908.
[10] Arbitration and Conciliation Act 1996, S 41.
[11] SCC Online Bom 785
[12] SCC Online MP 5908
[13] Arbitration and Conciliation Act 1996, S 47.
[14] SCC Online Cal 179
[15] Arbitration and Conciliation Act 1996, S 17.
[16] Ibid, s V.
[17] Arbitration and Conciliation Act 1996, S 49.