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R. HARIKRISHNAN1
by the Supreme Court on the Arbitration and Conciliation Act, 1996 [hereinafter
‘1996 Act’] this year and the impact of these judgments in the Indian Arbitration
law.
Decision:
Hindustan Construction Co. Ltd. v. Union of India [W.P. (C) 1074 of 2019.
Decided on 27.11.2019]
This issue has its genesis in Section 26 of the Arbitration and Conciliation
(Amendment) Act, 2015 [hereinafter ‘2015 Amendment Act’] which provided that
the 2015 Amendment Act shall not apply to arbitral proceedings commenced
in accordance with Section 21 of the 1996 Act before the commencement of the
2015 Amendment Act i.e. w.e.f. 23.10.2015, unless the parties otherwise agree
The difficulty arose due to the different expressions- ‘to arbitral proceedings’ and
‘in relation to arbitral proceedings’ being used in the two limbs of the Section.
The anomaly that would arise is that the Amendment Act might get applied to
1
The author is a practising advocate at the High Court of Kerala. He can be contacted at
rhkrishnan.1990@gmail.com
proceedings commenced before the Amendment Act, thereby affecting the vested
right gained by a party prior to the Amendment. The resultant anomaly was the
Amendment.
Cricket Pvt. Ltd. (2018) 6 SCC 287 [hereinafter ‘BCCI’] set this divergent
and will apply to those arbitral proceedings that are commenced, as understood
by Section 21 of the principal Act, on or after the Amendment Act, and to Court
proceedings which have commenced on or after the Amendment Act came into
force. One important advantage of this interpretation was that the benefit of
automatic stay of the award was no longer available even if the award was
As is evident from footnote no. 3 of the judgment in BCCI, at that time itself, a
proposal was made to incorporate Section 87 in the 1996 Act clarifying the
provide that the 2015 Amendment Act shall not apply to arbitral proceedings
proceedings commenced prior to or after the 2015 Amendment Act. However, the
judgment in BCCI itself expressed dissatisfaction with this proposal as it had the
the back-burner.
It seems that the legislature gave no attention to this warning by the Supreme
Court when it omitted Section 26 of 2015 Amendment Act and inserted Section
87 in the 1996 Act with retrospective effect from 23.10.2015 by the Arbitration
Construction Co. Ltd. v. Union of India. Interestingly, Justice R.F. Nariman, who
also wrote the judgment in the BCCI case, was one of the Judges who heard the
Constitution of India.
The result is that the BCCI judgment will continue to apply so as to make
applicable the salutary amendments made by the 2015 Amendment Act to all
BCCI on the second limb of Section 26 that the second limb of section 26 applies
only to proceedings before a court, and not to those before an arbitral tribunal,
Authority of India Ltd. (1999) 9 SCC 334, the attempt to directly stultify the
judgment by insertion of Section 87 was not the solution. One can only hope that
Amendment Act so that the desired outcomes of the said Amendment is promptly
achieved.
STRAIGHT
Decisions:
3658;
ii) BGS SGS SOMA JV v. NHPC LTD. [Civ. Appeal No. 9307 of 2019.
Decided on 10.12.2019]
Arbitrations. The prevailing confusion was laid to rest (at least one hoped so!) by
holding that the expressions ‘seat’ and ‘venue’ are not interchangeable, and if an
arbitration clause does not explicitly mention the seat and only prescribes the
venue, the venue does not ipso facto assume the status of the seat and in such a
case, Part I of the Act would be impliedly excluded only if some additional
Ltd. v. Kamachi Industries Ltd. In that case, the relevant clause in the
arbitrator before the High Court of Madras. The learned Judge of the Madras
High Court held that in the absence of any express clause excluding jurisdiction
of other Courts, both the Madras and Orissa High Courts will have jurisdiction
Setting aside the judgment of the Madras High Court, the Supreme Court held
that where the contract specifies the jurisdiction of the court at a particular
place, only such court will have the jurisdiction to deal with the matter and
parties intended to exclude all other courts. In other words, such designation of a
place is in the nature of an exclusive jurisdiction clause, as held by the Supreme
Court earlier in Swastik Gases (P) Ltd. v. Indian Oil Corporation Ltd. (2013) 9
SCC 32. In the present case, the parties have agreed that the “venue” of
The Court surprisingly made no effort to determine the ‘seat’ of the arbitration
and its ultimate finding of treating ‘venue’ as the ‘seat’ seem to be directly in
conflict with the view in Hardy Exploration .The judgment, it is most respectfully
the ‘Court’ for filing appropriate applications under Part I of the 1996 Act. While
the said proposition may be correct, it cannot confer jurisdiction to a Court which
otherwise does not have jurisdiction. Therefore, jurisdiction can only be had by
the Court where the arbitration has its seat or where the subject matter of the
Recently, a three Judge Bench of the Supreme Court in BGS SGS SOMA JV v.
NHPC Ltd. [hereinafter ‘SOMA’] once again considered the question of seat v.
venue, though in the context of domestic arbitration, yet laid down the law for
international arbitrations also. In the said case, the arbitration clause provided
34 petition challenging the award was made before Faridabad, which was held
by the High Court, to be maintainable. Unlike in Brahmani, the Court took effort
to determine the juridical seat of arbitration. The Court proceeded to indicate the
tests to determine the juridical seat of arbitration relying on the English and
Sharma [2009] EWHC 957, which was approved by the Constitution Bench in
contrary indicia, the inexorable conclusion is that the stated venue is actually
are to meet or have witnesses, experts or the parties” where only hearings are to
take place in the “venue”, which may lead to the conclusion, other things being
equal, that the venue so stated is not the “seat” of arbitral proceedings, but only
a convenient place of meeting. Although the Court was dealing with the issue in
extract one such observation occurring in paragraph 84 of the judgment that “in
arbitration, this would further be an indicia that “the venue”, so stated, would be
Applying the same, it was held that Hardy Exploration is not a good law, for
having failed to correctly apply the Shashoua test as approved in BALCO. The
resultant anomaly, as the Court points out, is that the arbitral award could be
challenged not only at the place where it was made (viz. Kuala Lumpur) but also
the Shashoua test to the clause dealing with a dispute with foreign contractor to
the interpretation of the clause in question to hold that the expression “shall be
held” also indicates that the so-called “venue” is really the “seat” of the arbitral
proceedings. The fact that the proceedings in this case were held at New Delhi
would indicate that New Delhi was the seat of arbitration and therefore only
The judgment gives a lot of clarity to the seat v. venue conundrum and
summarises the law on the point. The important contribution of this judgment is
order of the day, despite the seat having been located and specifically chosen by
the parties, party autonomy would suffer, which BALCO (supra) specifically
states cannot be the case. Thus, once a seat has been designated by the
thus imperative in Brahmani to find out whether the clause actually intended
and seat in the context of international arbitration may very well be treated as
obiter as there was no necessity to make any such observations in the fact
Decisions:
i. Government of Haryana v. G.F. Toll Road (P) Ltd. (2019) 3 SCC 505
ii. Bharat Broadband Network Ltd. v. United Telecoms Ltd. (2019) 5
SCC 755
iii. Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd.
One of the significant additions made by the 2015 Amendment was the
amendments made to Section 12 and the introduction of the Fifth and Seventh
Corporation Limited (2017) 4 SCC 665 the Supreme Court observed that Section
12 has been amended with the objective to induce neutrality of arbitrators, viz.,
identify the ‘circumstances’ which give rise to ‘justifiable doubts’ about the
mentioned therein exists, it will give rise to justifiable apprehension of bias. The
Fifth Schedule to the Act enumerates the grounds which may give rise to
and nullify any prior agreement to the contrary. In 2019, the Supreme Court was
Firstly, in Government of Haryana v. G.F. Toll Road (P) Ltd., the Court
appointed as arbitrator. At the outset, it needs to be said that this was a case
In this case, the arbitrator sought to be appointed, a retired Chief Engineer, had
retired from the services of the petitioner about 10 years ago. The respondents
raised doubts as to his independence and impartiality to act as an arbitrator.
Overruling the objection of the respondents, it was held that the apprehension of
the Respondents was unjustified since the test to be applied for bias is whether
the circumstances are such as would lead to a fair-minded and informed person
to conclude that the arbitrator was in fact biased. The 1996 Act does not
disqualify a former employee from acting as an arbitrator, provided that there are
Amendment was not applicable, the Court examined Entry (1) of Fifth Schedule
and its identical entry in the Seventh Schedule that “the arbitrator is an
relationship with a party” and held that the words “is an” indicates that the
consultant, or advisor of one of the parties. An arbitrator who has “any other”
past or present “business relationship” with the party is also disqualified. The
employee, consultant or an advisor. The word “other” cannot be used to widen the
not a correct understanding of law. While Entry (1) of Fifth Schedule may not be
interpreted to mean past or former employees, Entry (31) of the Fifth Schedule
specifically excludes “the arbitrator who had been associated within the past
the mandate under Entry (31) of Fifth Schedule. Though the Supreme Court may
not have expressly considered Entry (31) of Fifth Schedule, it may nevertheless
have applied the same in reaching its eventual conclusion on the facts of the case
that an ex-employee, who retired about 10 years ago, is not disqualified from
acting as an arbitrator.
Supreme Court had an occasion to re-state the law, with some necessary
Energo Engineering Projects Ltd. (2017) 8 SCC 377, it was held that a person,
could not himself appoint an arbitrator and any such appointment would be null
1996 Act r/w Schedule 7, is void ab initio and proceedings conducted by such
arbitrator/awards passed, are also void. Bharat Broadband was concerned with
decision be substituted?
iii) Can the parties by an express agreement waive their right to not allow an
Answering issue (i), the Court held that the judgment in TRF Ltd. nowhere
states that it will apply only prospectively, that is, the appointments that have
been made of ineligible persons would be valid if made before the date of the
judgment. Considering that the appointment in the case of TRF Ltd. of a retired
Judge of Supreme Court was set aside as being non-est in law, the appointment
application made to the court under Section 14(2) to determine whether the
On issue (iii), the Court examined the scope of the proviso to Section 12 (5),
which provided that the parties may, subsequent to the disputes having arisen
in writing. The Court held that the expression “express agreement in writing”
inferred by conduct. Thus, the express agreement has to be in writing with full
appointed as an arbitrator and that the parties have full confidence in the
proceedings before him. Therefore, the fact that a statement of claim may have
been filed before the arbitrator, would not mean that there is an express
agreement in words which would make it clear that both parties wish to continue
to act as such.
The judgment is in consonance with the object of the 2015 Amendment to ensure
strict interpretation of the proviso to Section 12 (5), the Court has avoided
Supreme Court dealt with the validity of an arbitration clause (similar to many
contracts with government entities) that permits only one of the parties to make
present case, Clause 24 empowered the Chairman and Managing Director of the
respondent to make the appointment of a sole arbitrator and said Clause also
stipulated that no person other than a person appointed by such Chairman and
The Supreme Court, heavily relying on the decision in TRF Energy (supra),
outlined two categories of arbitration clauses- The first category is where the
appoint any other person as an arbitrator. In the second category, the Managing
the Court held that both categories attract disqualification on the ground of bias
person who has an interest in the outcome or decision of the dispute must not
have the power to appoint a sole arbitrator. According to the Court, this
However, the situation where both parties could nominate an arbitrator would
stand on a different footing because then whatever advantage a party may derive
power with the other party. But, in a case where only one party has a right to
appoint a sole arbitrator, its choice will always have an element of exclusivity in
once a party has already made an appointment in terms of the agreement, it was
held that unless the appointment of the arbitrator is ex facie valid and such
appointment satisfies the Court exercising jurisdiction under Section 11(6) of the
This judgment upholds the need for independence and impartiality in the
noted, the present view of the Court is really helpful in creating a healthy
arbitration environment.
Decision
M/s. Mayavti Trading Pvt. Ltd. v. Pradyuat Deb Burman (2019) 8 SCC
744
One of the areas in which Indian arbitration law saw a lot of judicial
the 1996 Act. The law appeared to be settled by the seven Judge Bench judgment
in S.B.P. & Co. v. Patel Engineering (2005) 8 SCC 618 wherein the Court held
that the power of appointment is a judicial function and that there are certain
issues that are to be decided by the Court itself, other than the question of
existence of an arbitration agreement, under Section 11. But this judgment was
against the spirit of minimal judicial intervention envisaged by the 1996 Act.
Section 11 was amended by the 2015 Amendment Act, by which a new Section
11 (6-A) was introduced wherein the mandate for the Court appointing
Ltd. (2017) 9 SCC 729 [hereinafter ‘Duro Felguera S.A.’] held that the only
existence or not, the decisions in United India Insurance Co. Ltd. v. Antique
Art Exports Pvt. Ltd. (2019) 5 SCC 362[hereinafter ‘Antique Arts’] and
Ltd., (2019) 9 SCC 209 [hereinafter ‘Garware’] held that the function of
appointment is not an administrative but a judicial function and that the Court
arbitration agreement is duly stamped etc., apart from considering the question
The above confusion was eventually laid to rest by the Supreme Court in M/s
Antique Arts did not consider the intention behind Section 11 (6-A) and
understood in the narrow sense as has been laid down in the judgment Duro
Felguera, S.A. (supra). Accordingly, the view in Antique Arts was overruled. It
is most respectfully submitted that the decision in Garware is also not correct
2
Can be accessed at : https://rmlnluseal.home.blog/2019/05/21/arbitration-clause-in-an-unstamped-
instrument-a-missed-opportunity-in-garware-wall-ropes-ltd-part-ii/
Recently, in Uttarkhand Purva Sainik Kalyan Nigam Ltd. v. Northern
Coal Field [SLP (Civil) 11476 of 2018. Decided on 27.11.2019], the Supreme
Court held that the issue of limitation cannot be considered by the arbitrator
is not in writing, or the disputes are beyond the scope of the arbitration
agreement.
By the 2019 Amendment, Section 11 (6-A) has been omitted. With a view to
11 (6-B) clarifies that such designation by the High Court or Supreme Court
shall not be treated as delegation of judicial power. In the coming year, questions
about ‘grading’ of arbitral institution and the powers exercised by the newly
established Arbitration Council of India [Part I-A, Sections 43-A to 43-M] could
Decisions:
company, being one within a group of companies, can bind its non- signatory
mutual intention of all the parties was to bind both the signatories and the non-
signatory affiliates. This evolves the principle that a non-signatory party could be
companies and there was a clear intention of the parties to bind both, the
(France) v. Isover Saint Gobain 1984 Rev. Arb. 137 [popularly known as the
‘Dow Chemicals’ case], wherein it was held that the arbitration agreement can
bind the non-signatories in the same corporate structure, if they were involved in
The Group of Companies doctrine received its approval in India with the decision
contain the arbitration clause, which is absent in the ancillary agreements. This
restrictive interpretation was turned down by the Supreme Court last year in
bind both signatories and non-signatories. Cheran Properties saw the first
when it held that a non-signatory party is also bound by the arbitral award.
Though the doctrine was not expressly referred to but its principle was applied
The year 2019 saw the express application of the doctrine by the Indian Supreme
subsidiary of the Indian company, which was not a signatory to the arbitration
clause. The applicant relied on the correspondence from one Frederik Reynders,
the promoter of the 2nd respondent, who also represented it in the negotiations
and also on the fact that the 2nd respondent was the disclosed principal of the 1st
agreement nor did [it] have any causal connection with the process of
whatsoever. If the main plank of the applicant, that Mr. Frederik Reynders was
acting for and on behalf of respondent No.2 and had the authority of respondent
No.2, collapses, then it must necessarily follow that respondent No.2 was not a
party to the stated agreement nor had it given assent to the arbitration agreement
The above paragraph outlines the following requirements for the doctrine to
apply:
ii. The mere fact that the company was a component of the group of
companies will not suffice unless it is shown that the company had
This question was also considered by the Court in Reckitt and was answered in
Since CANFINA did not pay the entire sale consideration for the bonds, MTNL
was constrained to cancel the same. CANFINA was a wholly owned subsidiary of
Canara Bank and its Board mostly comprised of the senior executives of Canara
‘Group of Companies’ doctrine [paras. 10.3 to 10.6] The Court clearly laid out the
iii. The composite nature of the transaction between the parties. A ‘composite
where the performance of the agreement may not be feasible without the
iv. The Group of Companies Doctrine has also been invoked in cases where
Examining the facts in the light of the above law, the Supreme Court held that
there was a clear intention of the parties to bind both Canara Bank, and
These two decisions can be seen as firmly entrenching the ‘Group of Companies’
doctrine in Indian arbitration law. This is significant because the Doctrine is not
a widely approved doctrine in international arbitration law.3 However, the
clarity with which the Supreme Court has laid down the application is welcome
and the Indian approach could be useful for other jurisdictions intending to
Decision:
No other issue on arbitrability has troubled Indian Courts like the arbitrability
Prabhakar Oak AIR 1962 SC 406 decided under the Arbitration Act, 1940, which
[hereinafter ‘N. Radhakrishnan’] decided under the 1996 Act, the law was to
the effect that disputes involving serious allegations of fraud are not arbitrable.
Later, the Supreme Court distinguished the above decisions and declined to
Committee, CWG, Delhi (2014) 6 SCC 677 [hereinafter ‘Swiss Timing’] with
the latter decision, which was delivered by a Single Judge, even going to the
incuriam.
3
Globally, the application of the doctrine is limited and contentious. See: Max D. Passey, The Shortcoming of
Arbitration in the Modern World: The Third Parties Limitation’ accessed from
http://www.globalpoliticsreview.com/publications/2464-9929_v02_i02_p074.pdf
the view in Swiss Timing and created a distinction between fraud simplicitor
held that it was only in the latter cases of fraud that the dispute is not
i. Does the plea of fraud permeate the entire contract and above all, the
ii. Whether the allegations of fraud touch upon the internal affairs of the
However, being a two judge bench decision, it could not overrule the view in N.
Courts, while dealing with serious allegations of fraud, are also empowered to
undertake a strict and meticulous inquiry into the allegations of fraud and only
when the Court is satisfied that the allegations are of serious and complicated
nature that it would be more appropriate for the Court to deal with the subject
matter rather than relegating the parties to arbitration. The decision in Raza is
Court.
Decision:
ICOMM Tele Ltd. v. Punjab State Water Supply & Sewerage Board
avoid parties from raising frivolous and vexatious claims. These type of clauses
are usually seen in contracts with Government bodies. The legality of pre-deposit
clause fell for consideration before the Supreme Court in ICOMM Tele Ltd. v.
claims. The clause also stated that in the event of a favourable award, the
awarded, and the balance, if any, will be forfeited and paid to the other party.
The petitioner claimed that this was arbitrary and opposed to public policy.
The Supreme Court rejected the primary contention of the petitioner that it was
power. However, the Court upheld the contention that pre-deposit clause is
dismissed but need not be frivolous, as is obvious from the fact that there could
be two plausible views on the same issue. Further, even where a claim is found
to be justified and correct, the amount that is deposited need not be refunded to
the successful claimant. The Court also observed that the pre-deposit clause
the Court also distinguished its earlier judgment in S.K. Jain v. State of
clause was upheld, as the clause in that case was materially different from the
one involved in this case and that there was no constitutional challenge to the
said clause. S.K. Jain was a judgment delivered by a three Judge Bench.
judgment, its reasons for distinguishing S.K. Jain is faulty. A reading of S.K.
Jain would indicate that the clause involved in that case was in fact challenged
on the ground of being arbitrary and was rejected relying on the dictum in
“It must be remembered that these contracts are entered into pursuant to
both sides. There can be no question of the State power being involved in
such contracts.”
If the above principle was applied, the Court was not right in looking into the
which obviously the two judge bench in ICOMM could not do) on the basis that
while the clause in S.K. Jain required the entire deposit to be refunded upon the
proportionate basis.
are per se unconstitutional. The validity of such clauses will have to be examined
in the light of the particular facts of each case. The applicability of pre-deposit
Contract Act.
SCALE 41
The most significant of the decisions rendered by the Supreme Court with
In this case, the Supreme Court was concerned with the challenge to an arbitral
contrary to the terms of the contract. The contract prescribed the computation of
price adjustment in accordance with the Wholesale Price Index following 1993-94
as base year, which was revised by NHAI through a circular adopting 2003-04 as
the base year. The majority award upheld the above revision. The challenge to
the award by Ssangyong under Section 34, as being opposed to public policy,
The challenge to awards in India under the head of ‘being opposed to public
policy’ has been a controversial area following the wide interpretation given to
the term ‘public policy’ in ONGC v. Saw Pipes (2003) 5 SCC 705[hereinafter
‘Saw Pipes’]. One of the heads under Saw Pipes’ definition of ‘public policy’ was
‘being against the fundamental policy of Indian law’. The said expression came to
(2014) 9 SCC 263 [hereinafter ‘Western Geco’] to include an award that “no
DDA. Thus, the Court’s power to interfere with an award under Section 34 stood
Act. This broad understanding of Section 34 powers of the Court was taken note
of by the Law Commission and the Law Commission suggested in amendments
The Supreme Court noticed in Ssangyong that the broad interpretation given to
“fundamental policy” in Western Geco does not find place under Section 34, as
amended by the 2015 Act. Thus, after the 2015 Amendment, under the guise of
interfering with an award on the ground that the arbitrator has not adopted a
judicial approach, the Court cannot intervene on the merits of the award. The
Court thereafter proceeded to clarify the scope of the expression ‘public policy of
disregarding orders passed by the superior courts of India and disregarding the
Secondly, that such award is against basic notions of justice or morality such as
an award that shocks the conscience of the Court, or may not be illegal awards
but will not be enforced given the prevailing mores of the day. However, the
interference on this ground is also only if it shocks the conscience of the Court.
now available under sub-section (2A), added by the 2015 Amendment, to Section
34. Here, there must be patent illegality appearing on the face of the award,
which refers to such illegality as goes to the root of the matter but which does not
on the ground that by substitution of the workable formula under the agreement
by another formula de hors the contract between the parties, the arbitral award
this Court. The Court however made it clear that this ground was
can any Court interfere with an arbitral award on the ground that
justice has not been done in the opinion of the Court as it would be an
entry into the merits of the dispute which, is contrary to the ethos of
After setting aside the award, the Court invoked its powers under Article 142 of
the Constitution of India and directed execution of the minority award of the
Tribunal which was based on the formula agreed between the parties. This was
on the ground that though under the scheme of Section 34 once an award is set
The decision in Ssangyong removes the uncertainty over the ground ‘public
policy of Indian law’ which has often resulted in excessive interference with
However, the decision raises an issue as to the status of a minority award, once
the majority award is set aside. The view of the Supreme Court that the scheme
of Section 34 is such that once the majority award is set aside, a fresh arbitration
the legislature.
PROCESS
Decisions:
112
SCC 302
the award once a Section 34 application is filed by the judgment debtor. Section
36 (2) of the 1996 Act now expressly says that “filing of an application under
Section 34 shall not by itself render that award unenforceable, unless the Court
grants an order of stay of operation of the said award in accordance with the
provisions of Section 36 (3)”. Section 36 (3) states that upon filing an application
under Section 36 (2) for stay of operation of the award, the Court may, subject to
such conditions as it may deem fit, grant stay of the operation of such award for
reasons to be recorded in writing. The proviso, however, stated that the Court
shall, while considering the application for grant of stay in case of an award for
payment of money, ‘have due regard’ to the provisions for grant of stay of a
arose as to the interplay of the proviso to Section 36 (3) of the 1996 Act and
Order XXVII Rule 8 A of the CPC, which provided that no security shall be
required from the Government for the purposes of obtaining a stay in appeal
against the decree. In other words, the amended Section 36 providing for no
automatic stay becomes inapplicable for the Government. If so, can the
Government claim any special treatment in the matter of stay under the 1996
Act?
The Supreme Court held, relying on the decision Shri Sitaram Sugar Company
Limited v. Union of India (1990) 3 SCC 223, that the expression ‘have due regard
to’ would only mean that the provisions of CPC are to be taken into
consideration, and not that they are mandatory. The phrase used is ‘having
regard to’ the provisions of CPC and not ‘in accordance with’ the provisions of
CPC. In the latter case, it would have been mandatory, but in the form as
a manner that it takes away the power conferred in the main statute itself.
Significantly, the Court also examined the legislative history of Order XXVII
Rule 8 A of CPC and held that the said provision was enacted during the British
era, giving certain safeguards to the then Government, which would not
the Court held that Section 36 of the Arbitration Act also does not provide for
any special treatment to the Government while dealing with grant of stay in an
The decision is very significant for arbitration in India since a major litigant in
and this will encourage private parties to enter into arbitration with the
Government.
considered the import of Section 48 of the 1996 Act dealing with enforcement of
foreign arbitral awards. In the said case, the appellant initially raised an
1996 Act, which was rejected by the High Court and later the Supreme Court.
award, the Court held that the scheme of Section 48 of the 1996 Act does not
case concerning the foreign awards in the first place and then the issue of
The above view of the Court is fully in tune with the spirit of the 1996 Act. The
scope of interference with respect to foreign arbitral awards is restrictive and the
Courts in India cannot examine the merits of the award at that stage. The
grounds on merits of the award could be looked at only by the foreign court
where the award has been challenged. Any other interpretation would result in
the merits of the award being examined by both the executing Court as well as
the Court where the award is challenged, which is against the efficacy of