Obstacles In Enforcement of

Foreign Arbitral Awards In

India
(Synopsis)

Submitted To :- Submitted By :-

Mr. V. Surya Narayana Raju Name :- Srishti Sahu

Assistant Professor Semester :- VI

Section :- C

Roll No. :-172

B.A.LLB.(Hons.)

Batch XV

Date of Submission :- 09.02.2018

Hidayatullah National Law University,

Post Uparwara, Abhanpur, New Raipur - 493661 (Chattisgarh)

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 INTRODUCTION

The litigious spirit is more often found with ignorance than with knowledge of law. ~ Cicero1.
The proliferation of international commercial disputes, usually involving several parties, is an
inevitable by-product of the global economy. Litigation ceases to be an option in a country
like India where delivering speedy justice is but a distant dream due to inordinate delays and
backlogs that are characteristic of the Indian Judiciary. With more than 2500 bilateral
investments in place, investors are frantically looking for international protection of their
investments more specifically, in terms of an appropriate dispute settlement mechanism.
Arbitration, an outcome of discontentment with the traditional rigid and adversarial court
system, has emerged as a favourite choice of dispute resolution mechanism especially in case
of cross border disputes. The dramatic growth of international commercial arbitration in
recent years in the Asia-Pacific region has been extraordinary. This reflects the rapid growth
of international trade and commerce in this region as well as an increased willingness of
commercial parties to resort to international arbitration as a dispute resolution mechanism.2
Arbitration as a method of Alternative Dispute Resolution3 is not free from loopholes. Of
late, this method of ADR has been a subject of criticism chiefly on account of difficulty in
enforcement of arbitral awards. In this respect, the viability of arbitration as an efficient
mechanism of dispute resolution has come under question. This note shall set out to examine
the factors that affect the enforceability of foreign awards in India. Part I of the note is a
primer on the Arbitration law in India. Part II discusses the scope of the term ‘international
commercial arbitration’ in light of judicial interpretation. Part III discusses the meaning and
scope of ‘court intervention’ in arbitral process and enforcement of foreign arbitral awards in
India in light of the judicial interpretation or rather “intervention”. Part IV of this note is a
critical analysis of the proposed amendments to the Arbitration and Conciliation Act, 1996
including suggestions to facilitate successful enforceability of foreign awards in India with
the least amount of judicial intervention. The conclusion underscores the need to remove the
hurdles in enforcing foreign awards in India by adopting suitable reforms both on statutory
and judicial avenues on the lines of the suggested changes.

1
I CICERO, DELEGIBUS vi (1928 ed.)
2
See Kyriaki Noussia, Arbitration Reform in Australia, INT. ARB. L. R. 12 (2009) (This paper considers
amendment in order to ensure that the Act provides a comprehensive and clear framework governing
international arbitration in India, to improve the effectiveness and efficiency of the arbitral process and to adopt
the best practice development in national arbitration law from overseas.).
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Hereinafter ADR.

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 SURVEY OF LITERATURE

 Books
 The Arbitration & Conciliation Act , 1996
 Arbitration & Conciliation Act,1996 with Alternative means of Settlement of
Disputes, Dr. S.C. Tripathi, Central Law Publications, 8th Edition, 2017.
 Articles
 The Predicaments of Enforcing Arbitral Awards, Shubham Yogi,
http://www.legalserviceindia.com/article/l111-Arbitral-Awards.html , February
07, 2018.
 Obstacles to the enforcement of arbitral awards against States- an international
perspective, Anirudh Krishnan , March16,2011,
http://www.criticaltwenties.in/lawthejudiciary/obstacles-to-the-enforcement-of-
arbitral-awards-against-states-an-international-perspective, , February 07, 2018
 India clears obstacle to enforcement of mainland China and Hong Kong arbitral
awards by notifying China as New York Convention territory, Debevoise &
Plimpton LLP, April 26
2012,https://www.lexology.com/library/detail.aspx?g=892e7304-ffc7-4388-aace-
8562908954f2 , , February 07, 2018.

 The enforcement of arbitral awards in India - The elephant in the room, BJÖRN
GEHLE, SALONI KANTARIA,25FEB 2011,
HTTPS://WWW.CLAYTONUTZ.COM/KNOWLEDGE/2011/FEBRUARY/
THE-ENFORCEMENT-OF-ARBITRAL-AWARDS-IN-INDIA-THE-
ELEPHANT-IN-THE-ROOM, February 07, 2018.

 ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN INDIA,

http://shodhganga.inflibnet.ac.in/bitstream/10603/110130/16/16_chapter%206.pdf
, , February 07, 2018.

REVIEW OF LITERATURE
 The Arbitration & Conciliation Act, 1996 (Bare Act)
From this literature the relevant provisions of the Act i.e. Part II of the Act.

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  Arbitration & Conciliation Act,1996 with Alternative means of Settlement of
Disputes, Dr. S.C. Tripathi, Central Law Publications, 8th Edition, 2017.
This Book contains notes on the Arbitration & Conciliation Act , 1996 and other
Alternative Dispute Resolution mechanisms . The Relevant portion included in this
project from this book are the notes on enforcement of foreign awards and the
understanding of New York Convention and Geneva Convention.

 ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN INDIA,

http://shodhganga.inflibnet.ac.in/bitstream/10603/110130/16/16_chapter%206.pdf,
February 07, 2018.

This article deals with enforcement of foreign arbitral awards in India explaining the
meaning of foreign awards, comparison of New York Convention and Geneva
Convention and various challenges faced in India for the enforcement of foreign
awards.
 The Predicaments of Enforcing Arbitral Awards, Shubham Yogi,
http://www.legalserviceindia.com/article/l111-Arbitral-Awards.html , February 07,
2018.
This article deals with the various problems and challenges in the recognition and
enforcement of foreign awards in India as compared to Hong Kong and Switzerland.

HYPOTHESIS

In this Project I would firstly try to understand the meaning of foreign awards under various
International Conventions and distinguishing foreign awards from domestic awards . The
major reasons for so much obstacles in the enforcement of foreign arbitral awards in India is
may be due to lack of awareness and confidence of the alternative dispute resolution
techniques . This may be due to lack of government support and not pro- arbitration legal
system in India but with passage of time there is scope for Pro- Alternative Dispute
Mechanism in the Indian Legal System.

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 OBJECTIVES

1. To understand the concept of foreign Arbitral awards in India.

2. To understands the Court Intervention as a hurdle in enforcement of foreign Arbitral

Awards.

3. To analyse the obstacles in enforcement of foreign Arbitral Awards in India.

SCOPE OF STUDY

The scope of this study is very vast. The legal provisions and cases involved in enforcement
of foreign arbitral awards in India are many. The project mainly stressed upon the evident,
important issues but also tries to encompass the latent challenges. With the evolution and
time some challenges can be figured out and some can’t. These latent challenges increase the
scope; it includes some thoroughly researched challenges. The challenges have been too
sudden and recent. Hence, the scope of challenges is many.

METHODOLOGY OF STUDY

This study is descriptive and analytical in nature. Secondary sources have been largely used
to collect and analyze data. Books, articles and web pages have been referred to and footnotes
have been provided wherever necessary.

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 CHAPTERISATION
 Introduction
 Meaning of Foreign Awards
 Understanding meaning of Foreign Awards in New York Convention &
Geneva Convention
 Arbitration Law in India
 International Commercial Arbitration: Scope of the Arbitration & Conciliation
Act, 1996
 ‘COURT INTERVENTION’: A Hurdle in Enforcement of Arbitral Awards
 Enforceability of/Challenging Foreign Awards
 The ‘Public Policy’ Conundrum
 Consequential Drawbacks in Enforcement of Foreign Awards
 Proposed Amendments to the Act– An Analysis
 Conclusion
 References