Unit 3

Recourse against Arbitral Award-

A court cannot intervene on the merits of an arbitral award, nor can the parties appeal against it. The
Supreme Court stated, “An arbitrator is a judge designated by the parties, and no one can tamper
the award given by him”. However, this does not imply that the arbitrator’s actions are not reviewed.
The law permits certain remedies against an award for easy conduct of the procedure.

The Arbitration Act of 1940, which was abolished, provided three ways to challenge an
award: modification, remission, and setting aside. Whereas the Arbitration and Conciliation Act of
1996 divided these remedies into two categories (i.e., modification and setting aside). The remedy has
been given to the parties, and the tribunal was intended to correct mistakes. Returning the award to the
tribunal for correction of errors has been modified as the remedy for setting aside.

Grounds on Which the Court Can Set Aside an Arbitral Award-

A court may set aside an arbitral award on the grounds listed in section 34 of the Arbitration and
Conciliation Act, 1996. These factors include:

• Incapacity of parties
• Invalidity of agreement
• Notice not given to parties
• Award beyond the scope of reference
• Illegality of arbitral procedure
• Award against public policy
1. Incapacity of Parties
The award will not be binding on a party to the arbitration who is incapable of protecting his own
interests and who is not represented by a person who can do so, and in such a situation, it may be set
aside on that party’s application.
A party who is a juvenile or a person of unsound mind must be appropriately represented by a
guardian for the award to be upheld. The court will have to appoint a guardian for a youngster or a
person who is mentally ill for the purpose of arbitral proceedings under section 9 of the Arbitration
and Conciliation Act, 1996. When a guardian represents the incapacitated individual, the basis for the
incapacity will no longer be valid.
2. Invalidity of Agreement
An agreement’s legality may be contested on any of the grounds on which the legality of the contract
may be contested. When an arbitration clause is part of a contract, the contract’s invalidity renders the
arbitration clause ineffective.
In State of UP vs Allied Constructions (2003), the court ruled that an agreement’s legality must be
determined in accordance with the laws that the parties have submitted. If there is no such indication,
the legality will be assessed under the applicable legislation.
3. Notice Not Given to Parties
As per section 34(2)(a)(iii) of the Arbitration and Conciliation Act, 1996, an award may be challenged
if a party did not get appropriate notice of the appointment of the arbitrator, the arbitral procedures, or
the party’s inability to submit his case for any other reason.
Dulal Poddar vs Executive Engineer, Dona Canal Division (2003) [AIR 2004 SC 1049]: In this case,
the court determined that the appellant’s request for the appointment of an arbitrator without notifying
the respondent, as well as the arbitrator’s ex-parte decision, were unconstitutional and subject to
review.
4. Award Beyond the Scope of Reference
The scope of the arbitrator’s power and jurisdiction is specified by the reference of a dispute under a
contract. The award would be illegal and subject to modification if the arbitrator claimed jurisdiction
over matters which is not under his authority.
5. Illegality of Arbitral Procedure
According to section 34(2)(a)(v) of the Arbitration and Conciliation Act, 1996, an award may be
challenged if the tribunal’s membership did not follow the parties’ agreement, or the parties’ agreed-
upon procedure was not followed in the conduct of the proceedings, or in the absence of a procedure
agreement, or if the prescribed procedure of the Act was not followed.
Procedure misconduct occurs when the agreed-upon procedure or the procedure outlined in the Act is
not followed. If the arbitral tribunal decides to pursue an issue that is obviously outside the purview of
its jurisdiction, this will constitute arbitrator misconduct. Arbitrator misconduct will be proven by an
award in which the arbitrator willfully departed from the arbitration agreement and terms of reference.
6. Award Against Public Policy
If an arbitral award is at odds with Indian public policy, an application to set it aside may be
submitted, according to section 34(2)(b)(ii) of the Arbitration and Conciliation Act, 1996.
An award obtained by fraud or corruption will likewise be considered against Indian public policy, as
is made clear in the explanation of clause (b) of section 34(2)(b) of the Arbitration and Conciliation
Act.
An award that was gained by concealing information, misrepresenting or manipulating the arbitrator,
buying their favour, applying pressure to the arbitrator, etc., is also likely to be set aside.

FINALITY AND ENFORCEMENT OF ARBITRAL AWARD-

The arbitral award or arbitration award refers to an arbitration hearing decision made by an arbitration
tribunal. An arbitral award is equal to a court judgment. An arbitral award may be non-monetary in
nature where the claims of the entire claimant fail and there is no need for any party to pay any
money[20].
An arbitration award may be given for payment of a sum of money, judgment of any matter to be
decided in the arbitration proceedings, injunctive relief, substantive fulfilment of a contract and
rectification, setting aside or cancelling an act or other document.
Essential Elements of Arbitral Award-

• Should be in written form.

• Signed by the Arbitrator.
• Shall contain the reason for the passing of Award.
• Date and place at which the arbitration took place.
Enforcement of an Arbitral Award
Section 36 covers enforcement,
Where the time for making an application of the arbitral award under section 34 has expired, then
subject to the provision of sub section(2), such award shall be enforced in accordance with the
provisions of the code of civil procedure 1908 as if were a decree of the court.
In order to enforce the award, it is compulsory for the arbitral award to be final and valid. When an
award becomes final it prevents the winning party from filing a successful claim. It also prevents the
lost party from raising a lost case because they believe they can secondly have a more agreeable court,
convincing witnesses, or a better lawyer. Therefore, section 35 of the Act provides that the arbitral
award shall be final and binding on parties and persons, claiming under them respectively.
The commencement of the arbitration process when the parties enter into an agreement, and not in the
manner provided under section 35 of the 1996 Act, it does not constitute an award and does not imply
that the option of award are permanent.
The award may be challenged under section 34 of the Act otherwise it is final and becomes a court
decision under section 35 and no dispute of jurisdiction other than an arbitration agreement may be
proposed in the case.
Enforcement of domestic award
An order passed by the Arbitral Tribunal on formal arbitration in India will be regarded as a court
order and will be enforceable under the provisions of the arbitration and conciliation act, as if it were
a court order, specifying its application.
Once the arbitral award has been finalized and operational, the prize holder shall apply for the award
to the debtor before a commercial court or High Court, subject to jurisdiction. In the interim, if
possible, the arbitral award is challenged, the court has the power to provide protection assistance and
grant residency when the arbitral award is made. It is worth noting that in terms of the Amendment
Act of 2015, the party challenging the arbitral award will have to apply for a separate application in
order to claim the residency. It may be noted that if the court finds that the award is valid, in the
execution phase, there will be no challenge to the validity of the mediation award.
Enforcement of foreign award
India has signed the Geneva Convention on the Execution of Foreign Affairs Arbitral Awards, 1927
and the Convention on the Recognition and Strengthening of Foreign Arbitral Awards, 1958. The
arbitral award would be enforced in India, if the courts in India receive award for mediation in the
country, signed by Geneva Convention or New York Convention, and the award is made with a place,
declared as a meeting country by India. The central government has declared the 48 countries to be
just like the other countries 196 countries in the world with Mauritius being the most recent to add.
Enforcement of an external prize in India begins with file submissions a request for execution and a
two-stage process.

• First stage, a competent person would determine to comply the award to the requirements of
the act.
• Step two, to enforce that award as a decision of that court.
However, the award provider may take delays on unimportant matters objections and requirements
such as filing a certified or original copy of the award and the basic agreement before the court.
The award must therefore meet two requirements to be named as “foreign award”.

• The first is that under Indian law, it has to deal with the difference from a legal relationship
can be considered commercial. The term “commercial relationship” has been widely
publicized translated by Indian courts.
• The second requirement is that the country in which the award was located, the issue must be
notified by the internal government to be a fit world.
Requirements for the enforcement of foreign awards

• Original copy or certified copy of award given by Arbitral tribunal.

• Original or certified copy of the agreement.
• Evidence needs to prove the existence of a foreign award.
Conditions for enforcement of domestic and foreign Arbitral Awards
The Arbitral Award may be awarded voluntarily and the party may look over to the following reasons
for challenging the award;

• Any failure of the parties to agree.

• Especially when there are foreign awards the agreement in question does not exist according
to the law of the country in which the award was made or the law that the parties have placed
under it.
• Failure of the party to request mediation to provide prior notice of an appointment of
arbitrator or arbitral tribunal.
• The award is based primarily on the delivery of the decision or the agreement itself.
• In particular the foreign award has never been binding on the parties, either suspended or set
aside by the appropriate state authority where that award was made.
• The arbitrator is unable to resolve the underlying dispute Indian law.
• Enforcement of the award may be opposite of the Indian public policy.
Types domestic and foreign arbitral awards which are enforceable

• Awards containing prohibiting the doing of acts or injunctions ordering.

• Decisions or awards by emergency arbitral authority which grants interim injunction.
• Declaratory awards
• Other Awards
• Money awards.
Limitation period for enforcement of Arbitral Awards
Domestic award-
The Supreme Court held in
Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society that,
An arbitral awards will be considered for enforcement purposes and the Limitation Act 1963 applies
to arbitration, so the maximum period for the enforcement of such awards is twelve years.
Foreign award-
Different High Courts have different views and interpretations of limitations a time when the team can
consolidate the award.
The Bombay High Court ruled that the foreign award would be a two-step process as it is not a private
declaration and would not be binding on parties unless the appropriate court records it as enforceable.
Therefore the prescribed period may be three years, as the application for enforcement of the foreign
award will fall under the provision of accommodation in the Program for limitation Act. After that
when the appropriate court accept the award as a decision, the estimated time will be twelve years of
execution such a proclamation.
The Madras High Court 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.”

Appeal in Court against Appealable Orders

Provisions of Appeal
Section 37 of the Arbitration and Conciliation Act of 1996 includes a provision for appeal. The
following orders of the Court are subject to appeal:

• Whether or not to grant any of the interim measures requested under Section 9 of the Act.
• Under Section 34 of the Act, an arbitral award may be set aside or refused to be set aside.
• The Amendment Act expanded the scope of the Act’s appeals. The arbitral tribunal’s order
awarding shall also be appealable to a court.
• Accepting the plea related to in section 16 sub-section (2) or (3), which may be challenging
the arbitral tribunal’s jurisdiction or scope of competence.
• Making a decision on whether or not to grant interim measures under Section 17.
No second appeal shall lie from an order entered in an appeal under section 37(3), and nothing in the
section changes or takes away any right to appeal to the Supreme Court.
This basically means that if the first appeal is quashed, a second appeal challenging the same order
cannot be filed in the same court under the appellate jurisdiction provisions of the Arbitration Act.
However, Section 37 does not preclude an appeal to the Supreme Court to challenge an order of any
other appellate court.
It’s worth noting, however, that this clause makes no mention of a time restriction for such appeals.
Furthermore, it is unclear whether or not the Limitation Act of 1963 will apply to the Arbitration Act.
Hence, the limitation time for appeals under section 37 is unclear.
The Supreme Court’s Appellate Jurisdiction is addressed in Part II of the Supreme Court Rules 2013.
The topic categories for which an appeal to the Supreme Court may be brought are listed in Part IV of
the Supreme Court Rules.
Arbitration cases are covered by Rule 11 of the Supreme Court’s Appellate Division.
Apart from that, Part I of the Supreme Court Rules states that memorandums of compromise or
arbitral awards that finally result in a court decree are considered part of the Supreme Court record
and are required to be archived in perpetuity.
Determination of Limitation Period of 120 days
Position in High Courts--
Bombay High said in Oil and Natural Gas Corporation Ltd. v. Jagson International Ltd[1]. (2005),
“…despite providing an appeal under Section 37, the Legislature has opted not to prescribe any time
of limitation”.
In light of this, the Court will not be justified, in my opinion, in importing the term of limitation given
by Section 34 for submitting an application and applying it to an appeal filed under Section 37.
So, there is no provision in the Limitation Act dictating the time limit for submitting an appeal under
Section 37,” and it was concluded that the time restriction for appeals under Section 34 would not
apply to appeals under Section 37.
It was also determined that the Limitation Act of 1963 did not contain a provision establishing a time
limit for filing an appeal under Section 37.
In Oil & Natural Gas Corporation Ltd v. M/s Dynamic Corporation[2], the Bombay High Court
reconsidered the Jagson decision (2012).
The Court stated that the decision in the Jagson case was faulty because it was based on an incorrect
assumption and that Section 29 of the Limitation Act, 1963, and Section 43 of the Arbitration &
Conciliation Act, 1996 were not taken into account while reaching the decision.
In this case, the appeal was brought against a High Court ruling that set aside an arbitral award under
Section 34. The Court decided that the appeals under Section 37 would be subject to Section 117 of
the Limitation Act, and that the limitation period would be 30 days.
According to Section 116(a) of the Limitation Act, the time of limitation for filing an appeal against a
judgement granting or refusing interim relief is 90 days from the date of the decree, as determined by
the Rajasthan High Court in Shivraj Singh v. Shri Ram Transport Finance Co Ltd (2013).
Therefore, if the appeals are brought after the limitation period has passed, they will be time-barred.
In North Eastern Electric Power Corporation Ltd v. M/s Patel Unity Joint Venture[3] (PUJV) (2017),
the Meghalaya High Court found that appeals under Article 37 of the Arbitration Act are covered by
clause (a) of Article 116 of the Schedule to the Limitation Act.
As a result, we can observe that different High Courts have issued varied limitation periods for
appeals in their judgements, and there is no universal limitation term for appeals under Section 37 of
the Arbitration Act.
As a result, there is still some ambiguity surrounding appeals under Section 37 of the Arbitration Act.

Position in the Supreme Court

The Supreme Court, in M/s Consolidated Engineering Enterprises v. The Principal Secretary
(Irrigation Department) & Ors.[4], ruled that Article 116 of the Limitation Act, which provided a 90-
day limitation period for appeals to the High Court under the Code of Civil Procedure 1908, would
regulate the terms of limitation for appeals under Section 37 of the Arbitration & Conciliation Act,
1996, unless expressly excluded by the Arbitration Act.
The Supreme Court decided the 120-day limitation period under Section 37 of the Act by comparing it
to the limitation time granted under Section 34 of the Act in the case of Union of India versus M/s
Varindera Const. Ltd[5] (2018).
“Because a Section 34 application must be filed within a maximum of 120 days, including the grace
period of 30 days,” the Court reasoned, “an appeal filed from the same action under Section 37 should
be covered by the same drill.”
In M/s N.V. International v. The State of Assam & Ors[6] (2019), the Supreme Court upheld the 120-
day limitation period for appeals under Section 37 of the Act, saying, “…We may only add that what
we have done in the aforesaid judgement is to add to the period of 90 days, which is provided by
statute for filing of an appeal under Section 37 of the Arbitration Act”, following Lakshmeshwar
Prasad Shukul[7], a grace period of 30 days under Section 5 of the Limitation Act, as well as having
regard to the object of speedy resolution of all arbitral disputes, which was foremost in the minds of
the 1996 Act’s framers, and which has been strengthened from time to time by amendments made
thereto.
Therefore, the current delay, which exceeds 120 days, cannot be excused.”
Is the 120 days limitation period a settled position?
There was no uniformity in the limitation period even after the N.V. International case. The decision
in the N.V. International case, which had some flaws, resulted in the High Courts taking opposing
views.
These were the flaws in the M/s N.V. International case:

• Will the verdict be applicable to intra-court appeals as well?

• Will it also cover appeals from commercial court orders made under the Arbitration Act’s
Sections 9 and 34?
The Supreme Court’s decision in Executive Engineer v. Borse Brothers Engineers & Contractors Pvt.
Ltd.[8] (2021) overruled the N.V. International, fixed its flaws, and clarified the issue of the limitation
period under section 37 of the Arbitration Act.
The following is the time limit for submitting an appeal, according to the Court:
If the claim amount is less than three lakh rupees, the Arbitration & Conciliation Act, 1996 will be
read with Article 116 of the Limitation Act, 1963, and the period of limitation will be 90 days.
In the case of an intra-court appeal where the claim amount is less than three lakh rupees, the
Arbitration & Conciliation Act, 1996 shall be read in conjunction with Article 117 of the Limitation
Act, 1963, and the limitation period will be 30 days.
If the claim amount exceeds three lakh rupees, the Arbitration & Conciliation Act, 1996 will be read
with Section 13(1A) of the Commercial Courts Act, 2015, and the period of limitation will be 60 days
in both inter-court and intra-court appeals.
As a result, it is apparent that the time restriction for filing an appeal will be determined by the type of
dispute (commercial or non-commercial).
The Court also stated that delays would be tolerated only in extraordinary circumstances when the
parties operated honestly and in good faith rather than negligently.
In addition, the Court stated that this decision would only be applied prospectively.
Because of this decision, the Supreme Court has definitively clarified the law on the appeals
limitation time under Section 37 of the Arbitration Act.
Important Cases Related to Appeals under Arbitration & Conciliation Act, 1996
Centrorade Minerals Vs. Hindustan Copper[9]
A three-judge Supreme Court bench recently ruled that if the contract’s arbitration clause called for a
two-tiered arbitration, the first in India, which may be challenged by the unsatisfied party through a
second arbitration in London.
Such a clause would not be in violation of the country’s laws, and hence would be enforceable.
In such circumstances, it appears that the scope of appeal is broader than in court cases. This indicates
that by including a language like this in the arbitration agreement, the scope of an arbitral appeal can
be expanded.
MMTC Limited Vs. Anglo American Metallurgical Coal[10]
The Court concluded that, under the basic principles of Section 37, the Court should refrain from
interfering with the Arbitral Tribunal’s conclusions of inference, even if they are sustained in Section
34 proceedings and are not supported by a simple, objective, and straightforward interpretation of the
documents.
The Court would have no hesitation in interfering with or correcting such a decision, particularly if it
goes to the heart of the problem.
Hyder Consulting Ltd. Vs. Governor, State of Orissa
There was no express provision in the Act of 1940 dealing with the arbitrator’s competence to grant
interest. Furthermore, it is well established that the Supreme Court’s decision on interest awards
granted under the 1940 Act does not apply to arbitrations performed under the Arbitration Act.
Alka Chandewar Vs. Shamshul Ishrar Khan[
The contention was that if orders made under Section 17 were enforceable, the consequence of the
provision would be rendered ineffectual, and that Section 9 and Section 17 were alternative remedies
accessible to the parties before the Tribunal.
In light of sub-section (2) to Section 17 added by the Amendment Act 2015, the Supreme Court
dismissed the argument, stating that such orders would now be deemed to be orders of the Court for
all purposes and would be enforceable under the Civil Procedure Code 1908 in the same manner as if
they were orders of the Court.

International Commercial Arbitration system

International commercial arbitration helps to resolve disputes among the international parties arising
out of the internal commercial agreements. Section 2(1)(f) of the Arbitration and Conciliation Act
defines international commercial arbitration as disputes arising out of the legal relationship where one
of the parties is a citizen, resident, or habitually residing out of India. International commercial
arbitration is used by the traders of different countries as a way of settling their business conflicts.
The procedure to apply for international commercial arbitration is the same as domestic arbitration.
The scope of Section 2(1)(f) of the Arbitration and Conciliation Act was determined by the Supreme
Court in the case of TDM Infrastructure Pvt. Ltd. v. UE Development India Pvt. Ltd. In this case it
was held that if the company has dual nationality, that means it is registered in foreign and in India
then that company for this Act would be regarded as Indian corporation and not the foreign
corporation. International arbitration just like domestic arbitration takes place involving a third party
known as an arbitrator. International commercial arbitration allows the parties to resolve their disputes
amicably by maintaining their relationship and with less money by respecting each other’s cultural
and linguistic background. International arbitration is also known as a ‘hybrid form of international
dispute resolution’ because international arbitration allows mixing two legal provisions the Code Civil
Law Procedure, 1908, and the Common Law Procedure. Parties coming together to work often in
their legal contract mentions the clause of the arbitration agreement to resolve the disputes without
going to court.
The International Chamber of Commerce (ICC) model arbitration clause, for instance, merely reads:
“All disputes arising out of or in connection with the present contract shall be finally settled under the
rules of arbitration of the International Chamber of Commerce by one or more arbitrators appointed
by the said rules.”
Steps involved in International Commercial Arbitration
There are various steps involved while conducting the proceedings of the international commercial
arbitration. The steps are explained below.
Notice of arbitration
To commence the proceedings of arbitration one party has to provide the notice of arbitration to the
other party requesting to refer the dispute to arbitration. When the respondent receives the notice of
arbitration, the proceedings of arbitrations begin. In this notice, there are two essentials: one is the
communication of an intention to refer the dispute to arbitration and the other is that the other party to
whom the notice has been served should take a step towards it.
Referral to arbitration
The judicial authority can refer the subject matters of the case to the arbitration if that agreement
contains the clause of arbitration to settle the disputes among the party if there are any. According to
Section 8 of the Arbitration and Conciliation Act, the judicial authority can refer the parties to
arbitration if there is an arbitration agreement.
Appointment of arbitrators
The parties are at their discretion to appoint the arbitrator to decide their case. If the parties are not
able to appoint the arbitrators mutually due to some issues then the court allows the parties to appoint
each arbitrator and then these two arbitrators will appoint the third party who will be neutral. If the
parties fail to appoint the arbitrators within thirty days or the two arbitrators fail to appoint the third
arbitrator then the parties can request the Supreme Court and High Court to appoint the arbitrators.
The High Court or the Supreme Court can appoint any person or institution to appoint arbitrators. In
the cases of International Commercial Arbitration, the Supreme Court can appoint the arbitrators for
the parties and in the cases of domestic arbitrations, the High Court appoints the arbitrators.

The challenge to the appointment of arbitrators

The appointment of arbitrators can be challenged only on these two criteria:
 • When there are circumstances that raise reasonable suspicions about his or her independence
or impartiality; or
• The arbitrator does not possess the qualities the parties required.
Interim relief--
The Arbitration and Conciliation Act, in Section 9 provides for interim measures of protection not just
before the commencement of arbitral proceedings and during the arbitral proceedings but also after
the arbitral award has been delivered. Section 17 provides for interim measures ordered by the arbitral
tribunal if it is found at the time of proceedings that the disputed matter is dangerous then it can ask
the party to provide security.
The mandate of the arbitrator--
If arbitrators do not deliver the arbitral award on time then the mandate of the arbitrators expires this
was held in the case of NBCC Ltd. v. J.G. Engineering Pvt. Ltd by the Supreme Court. The mandate
of the arbitrators expires according to the period agreed by the parties.
Challenge to jurisdiction--
The Supreme Court in the case of S.B.P. and Co. v. Patel Engineering Ltd. and Anr held that if without
judicial intervention the arbitral tribunal was constituted by the parties the arbitral tribunal can
determine all jurisdictional issues by exercising its powers of competence under Section 16 of the Act.
According to this Section, an arbitral tribunal has the authority to rule on its jurisdiction if there exists
a valid arbitration agreement. If any party has an objection regarding the invention of the tribunal then
that party can file a plea before the submission of defence.
Settlement during arbitration--
The parties are allowed to settle the dispute mutually even if the arbitration proceedings are going on.
If the parties arrive at the settlement amicably, the arbitration proceeding will be terminated. Also if
both the parties give their consent to record the settlement then this would be known as a consent
award that would work as an arbitral award.
Foreign Arbitral award
In the Arbitration and Conciliation Act, foreign awards are covered under part of the Act that contains
New York Convention Awards and Geneva Convention Awards. The New York Convention defines
foreign arbitral awards as differences between the parties arising out of the legal relationships. The
definition of the foreign award is given in Section 44 of the Arbitration and Conciliation Act. The
Geneva Convention defines the foreign awards in Section 53 as differences between the parties arising
out of commercial matters.

NEW YORK AND GENEVA CONVENTION AWARDS--

Under the Arbitration and Conciliation (Amendment) Act, 2015. There are two avenues available for
the enforcement of foreign awards in India, viz., the New York Convention and the Geneva
Convention, as the case may be.
A. Enforcement under the New York Convention
Sections 44 to 52 of the Arbitration and Conciliation (Amendment) Act, 2015 deals with foreign
awards passed under the New York Convention.
The New York Convention defines "foreign award" as an arbitral award on differences between
persons arising out of legal relationships, whether contractual or not, considered as commercial under
the law in force in India, made on or after the 11th day of October, 1960-

• In pursuance of an agreement in writing for arbitration to which the Convention set forth in
the First Schedule applies, and
• 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 be territories to which
the said Convention applies.[1]
From the abovementioned conditions, it is clear that there are two pre-requisites for enforcement of
foreign awards under the New York Convention. These are:

• The country must be a signatory to the New York Convention.

• The award shall be made in the territory of another contracting state which is a reciprocating
territory and notified as such by the Central Government.
Section 47 provides that the party applying for the enforcement of a foreign award shall, at the time of
the application, produce before the court (a) original award or a duly authenticated copy thereof; (b)
original arbitration agreement or a duly certified copy thereof; and (c) any evidence required to
establish that the award is a foreign award. As per the new Act, the application for enforcement of a
foreign award will now only lie to High Court.
Once an application for enforcement of a foreign award is made, the other party has the opportunity to
file an objection against enforcement on the grounds recognized under Section 48 of the Act. These
grounds include:

• 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
• 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
• 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: 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
• 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 the arbitration took place; or
• 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.
• the subject-matter of the difference is not capable of settlement by arbitration under the law of
India; or
• the enforcement of the award would be contrary to the public policy of India.
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.
It is further provided that if an application for the setting aside or suspension of the award has been
made to a competent authority, 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 49 provides that where the Court is satisfied that the foreign award is enforceable under this
Chapter, the award shall be deemed to be a decree of that Court.
B. Enforcement under the Geneva Convention--
Sections 53-60 of the Arbitration and Conciliation (Amendment) Act, 2015 contains provisions
relating to foreign awards passed under the Geneva Convention.
As per the Geneva Convention, "foreign award" means an arbitral award on differences relating to
matters considered as commercial under the law in force in India made after the 28th day of July,
1924,-

• in pursuance of an agreement for arbitration to which the Protocol set forth in the Second
Schedule applies, and
• between persons of whom one is subject to the jurisdiction of some one of such Powers as the
Central Government, being satisfied that reciprocal provisions have been made, may, by
notification in the Official Gazette, declare to be parties to the Convention set forth in the
Third Schedule, and of whom the other is subject to the jurisdiction of some other of the
Powers aforesaid, and
• in one of such territories as the Central Government, being satisfied that reciprocal provisions
have been made, by like notification, declare to be territories to which the said Convention
applies, and for the purposes of this Chapter, an award shall not be deemed to be final if any
• proceedings for the purpose of contesting the validity of the award are pending in any country
in which it was made.[2]
Section 56 provides that the party applying for the enforcement of a foreign award shall, at the time of
the application, produce before the court (a) original award or a duly authenticated copy thereof; (b)
evidence proving that the award has become final and (c) evidence to prove that the award has been
made in pursuance of a submission to arbitration which is valid under the law applicable thereto and
that the award has been made by the arbitral tribunal provided for in the submission to arbitration or
constituted in the manner agreed upon by the parties and in conformity with the law governing the
arbitration procedure. As per the new Act, the application for enforcement of a foreign award will now
only lie to High Court.
The conditions for enforcement of foreign awards under the Geneva Convention are provided under
Section 57 of the Arbitration and Conciliation Act, 1996. These are as follows:

• the award has been made in pursuance of a submission to arbitration which is valid under the
law applicable thereto;
• the subject-matter of the award is capable of settlement by arbitration under the law of India;
• the award has been made by the arbitral tribunal provided for in the submission to arbitration
or constituted in the manner agreed upon by the parties and in conformity with the law
governing the arbitration procedure;
• the award has become final in the country in which it has been made, in the sense that it will
not be considered as such if it is open to opposition or appeal or if it is proved that any
proceedings for the purpose of contesting the validity of the award are pending;
• the enforcement of the award is not contrary to the public policy or the law of India.
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.
However, the said section lays down that even if the aforesaid conditions are fulfilled, enforcement of
the award shall be refused if the Court is satisfied that-

• the award has been annulled in the country in which it was made;
• the party against whom it is sought to use the award was not given notice of the arbitration
proceedings in sufficient time to enable him to present his case; or that, being under a legal
incapacity, he was not properly represented;
• the award does not deal with the differences contemplated by or falling within the terms of the
submission to arbitration or that it contains decisions on matters beyond the scope of the
submission to arbitration: Provided that if the award has not covered all the differences
submitted to the arbitral tribunal, the Court may, if it thinks fit, postpone such enforcement or
grant it subject to such guarantee as the Court may decide.
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.
Section 58 provides that where the Court is satisfied that the foreign award is enforceable under this
Chapter, the award shall be deemed to be a decree of the Court.