'ENFORCEMENT OF ARBITRATION AWARD

SUBMITTED TOWARDS THE FULFILMENT OF THE

COURSE TITLED -
A AD DR R










Submitted to Submitted by
Mr. Vikram Pulkit Prakash (248)
Faculty, (ADR) 3
rd
Year, 6
th
Semester

ACKAOWLEDCEMEA1

The views, opinions, statements and legal conclusions contained in this profect are those of
the author, and also represent official statements or opinions. Any errors or misstatements in
this profect are exclusively those of the author. These guidelines are provided by the
concerned faculty in an effort to provide better understanding of general rules of succession
and the implication process. These guidelines are NOT meant to constitute legal advice. They
simplify and broadly generali:e complex issues of law. I appreciate the assistance of my
friends (LL.Bs), who provided the initial drafts of the materials in this assignment.

#ESEA#CH ME1HODOLOCY
Scope and Limitations
The topic Ior this project is 'EnIorcement oI arbitration awards. The crux oI this project is
to study the mechanism Ior enIorcement oI awards declared by arbitral tribunals in
international commercial arbitrations. The researcher will study the provisions oI the
Arbitration and Conciliation Act, 1996 and wherever possible, he will reIer to the procedure
under the old enactments in this area and try to analyse the advantages oI the new enactment
over the older ones. However, the researcher limits the scope oI this project to the
enIorcement oI Ioreign awards by Indian courts with only glancing reIerences to Ioreign
jurisdictions. A detailed examination oI the grounds oI accepting or rejecting such awards is
also not undertaken due to practical constraints. Further, the researcher has not made a
detailed study oI the provisions oI the New York and Geneva Conventions, keeping in mind
the precise scope oI this project.
#esearch Objectives
- To understand the existing mechanism Ior the enIorcement oI Ioreign arbitral awards
in India.
- To appreciate the relevance oI this area oI law in an emerging liberalized economy
like India.
#esearch Questions
The researcher will answer the Iollowing questions during the course oI this project
1. What is the meaning oI 'Ioreign award as per the Arbitration and Conciliation Act,
1996?
2. What is the mechanism Ior the enIorcement oI awards made under the New York
Convention?
3. What is the mechanism Ior the enIorcement oI awards made under the Geneva
Convention?
4. What is the mechanism Ior the enIorcement oI awards made in other international
arbitrations?
5. What are the grounds oI accepting or rejecting such awards?
6. What are the deIences available against the enIorcement oI Ioreign awards?
7. How does public policy aIIect the enIorcement oI Ioreign awards?

Sources
The researcher has reIerred to treatises and commentaries written by eminent authors in this
Iield. The researcher has also reIerred to relevant case law and articles written by noted
scholars. The researcher has also used the Internet Ior the purpose oI gathering the required
inIormation Ior this project.

Method of Analysis
Primarily, the researcher has used a descriptive method Ior this project. The Iocus oI the
project being a study oI the enIorcement mechanism Ior Ioreign arbitral awards, the
researcher has described this mechanism in detail. However, wherever possible, the
researcher has provided some analysis oI the issues involved therein.
Mode of Citation
A uniIorm mode oI citation has been Iollowed throughout this project

TABLE OF CONTENTS
Topic page number
Table oI cases 06
Table oI statues and instruments 07
Introduction 08-09
History 10
Procedure Ior enIorcement under the old act 11
Procedure Ior enIorcement under the new act 12
Grounds Ior setting aside an arbitral award 13-14
A brieI history oI the relevant conventions & overview oI the
Relevant sections oI the act 15-20
A Iew important aspects oI the deIinition 21-23
Essentials considerations Ior the enIorcement oI Ioreign awards 24-32
Conclusion 33
Bibliography 34

1ABLE OF CASES

1. Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232.
2. Central Inland Water Transport Co. Ltd. v. Brofo Nath Ganguly, AIR 1986 SC 1571.
3. uropean Grain and Shipping Ltd. v. Bombay xtractions Pvt. Ltd, AIR 1983 Bom 36.
4. atehchand Himmatlal v. State of Maharashtra, AIR 1977 SC 1825.
5. uerst Day Lawson Ltd. v. indal xport Ltd., AIR 2001 SC 2293.
6. Gas Authority of India Ltd. v. SPI CAPAG, SA (1994) 1 Comp. L.J. 374 (Delhi).
7. Harendra Mehta v. Mukesh Mehta, AIR 1999 SC 2054.
8. osef Meisaner GMBR v. anoria Chemicals & Industries Ltd., AIR 1986 Cal 45.
9. osh Navigation Inc. v. Hindustan Petroleum Corporation Ltd., AIR 1989 SC 2198.
10. Mukesh H. Mehta v. Harendra H. Mehta, (1995) 5 Comp L.J. 517 (Bom).
11. Orma Impex Pvt. Ltd. v. Nissai Asb Pvt. Ltd., AIR 1999 SC 2871.
12. R.M. Investment & Trading Co. Pvt. Ltd. v. Boeing Co., AIR 1994 SC 1136.
13. Renusagar Power Co. v. General lectric Co., AIR 1986 Del 8.

1ABLE OF S1A1U1ES AAD IAS1#UMEA1S

S1A1U1ES
1. Arbitration (Protocol and Convention) Act, 1937.
2. Arbitration and Conciliation Act, 1940.
3. Arbitration and Conciliation Act, 1996.
4. Code oI Civil Procedure, 1908.
5. Foreign Awards (Recognition and EnIorcement) Act, 1961.

IA1E#AA1IOAAL IAS1#UMEA1S
1. Convention on the Execution oI Foreign Arbitral Awards, 1927.
2. New International Convention on the Recognition and EnIorcement oI Foreign Arbitral
Awards, 1958.

NTRODUCTON

ConIlict between partners in trade has existed ever since the beginning oI trade itselI and so
have methods oI resolution oI such disputes. As a means oI resolving disputes, arbitration has
been used Ior centuries.
1
There have been a number oI attempts to deIine arbitration but this
has always been considered problematic. However, the Iollowing deIinition might be taken
Ior the purposes oI this paper
'Arbitration is a reIerence to the decision oI one or more persons, either with or without an
umpire, oI some matter or matters in diIIerence between parties to commercial transactions.
Arbitration helps to improve international economic relations by providing a mechanism that
reduces the risk oI transactional commerce. While entering into a business relationship, the
business houses do hope that there would be no Iailure oI agreements, but the Iear oI a
dispute is never too distant. This Iear gets accentuated when the businessman is not sure oI
the reliability, pragmatism, promptness as well as the Iairness oI the dispute resolution
mechanism. This would result in the increase oI prices to compensate Ior the additional
hazard.
It is thus clear that the presence oI eIIective methods oI dispute resolution is a major step
Iorward in the direction oI Iacilitation oI trade and commerce. The main attraction oI a
proceeding like arbitration is the Iact that it provides the parties a neutral Iorum in which they
can solve their disputes and is speedy in its dispensation oI a result. In order to retain this
attraction the arbitration proceedings should avoid getting into the courts as Iar as possible.
The arbitrator/s hears the parties and pronounces their verdict in the Iorm oI an 'award.
Since the parties chose to arbitrate and they appointed the arbitrator by mutual consent, they
usually abide by the award as well. However, there are always some persons who will not
adhere to the award. Just because the parties to arbitration took the dispute out oI the court`s
hands does not mean that the court will not step in to redress the grievances oI the aggrieved
party in such situations. The court has the power to enIorce the award, within its own
jurisdiction, as though it were executing one oI its own decrees. This sort oI judicial
execution oI an arbitral award is usually called enIorcement`.

David St John Sutton, John Kendall, Judith Gill, Russell on Arbitration, 21st ed., Sweet and Maxwell, London,
1997, p.3.

A process like arbitration assumes special importance Ior a developing country like India. In
the early 1990s, Ioreign exchange reserves were Irighteningly low and Ioreign capital was
only trickling in. In order to encourage more Ioreign investment, security oI investment and a
speedy and just dispute resolution process were two oI the basic requirements. Hence, India
adopted the policy oI liberalisation. At the same time, India began to hard-sell arbitration as a
Iorm oI dispute resolution to its domestic businessmen. Arbitration was already a major Iorm
oI dispute resolution among commercial circles in developed countries. II India could
develop a strong arbitration base, then that would take care oI the speedy disposal oI cases;
thus encouraging Ioreign investment. As a useIul starting point, India was already a party to
both the New York and Geneva Conventions on arbitration. However, the domestic law was
inadequate to meet the demand. Hence, in 1995, India passed an ordinance based on the
UNCITRAL Model law on arbitration; and this subsequently became legislation in 1996.
This opened the Iloodgates Ior arbitration Ior Indian entrepreneurs. However, one trend that
was noticed was that most arbitration involving Indian businesses took place in Ioreign
countries, although the award was to be enIorced here. Hence, the area oI enIorcement oI
these Ioreign awards assumed special importance in India.

STORY
The enactment oI the Arbitration Act, 1940 (hereinaIter "the old Act"), was a reIlection oI the
legislature's determination to ensure speedy resolution oI disputes. However, the old Act,
though sound in principle, was bogged down by procedural delays. To put it in the words oI
the Apex Court
"Experiences show and law reports bear ample testimony that the proceedings under the Act
have become highly technical accompanied by the intending prolixity at every stage
providing a legal trap to the unwary. InIormal Iorum chosen by the parties Ior expeditious
disposal oI the disputes has, by the decisions oI the courts been clothed with legalese and
unIoreseeable complexity."
2

There was no uniIorm procedure in terms oI a uniIied code Ior the enIorcement oI Ioreign
awards under the New York Convention and the Geneva Convention. The Foreign Awards
(Recognition and EnIorcement) Act, 1961 Ior the enIorcement oI arbitral awards under the
New York Convention and the Arbitration (Protocol and Convention), Act 1937 hitherto held
the Iield. With the adoption, by the United Nations Commission Ior International Trade Law
oI the UNCITRAL Model Arbitration Law and the subsequent adoption oI the same by
various countries in the world, it was but necessary that India adopt the Model Law to govern
arbitrations and this saw the genesis oI the more dynamic Arbitration and Conciliation
Ordinance leading to the Arbitration and Conciliation Act, 1996 (hereinaIter "the new Act").
The New Act has consolidated and amended the law relating to arbitration and is
comprehensive in the sense that it covers both domestic and Ioreign arbitrations.
It has simpliIied the procedure in many respects, especially concerning appointment oI
arbitrators, procedure to determine whether an arbitration agreement exists or not, challenge
to an arbitral award and Iinally, enIorcement. The interIerence oI courts in the matter oI
arbitration has been reduced to the minimum. The enIorcement procedure has also been
revised. The purpose or scope oI this article is to examine the law in India insoIar as the
enIorcement oI arbitral awards is concerned.

Gurunanak oundation v. Rattan Singh and Sons, (1981) 4 SCC 634

A comparison oI the provisions in the old Act and the new Act would be meaningIul and
useIul.
!ROCEDURE FOR ENFORCEMENT UNDER TE OLD ACT
AIter the making oI the award by the arbitrators or umpire and aIter having signed the same,
at the request oI one oI the parties' to the agreement or any person claiming under him or iI so
directed by the court, the award and all other documents were to be Iiled in court. (Section
14)
The court had jurisdiction to entertain the application Ior Iiling oI the award.
The court had to give notice to the parties under Section 14(2).
The parties were entitled to object to the award.
The court was to determine and modiIy or correct an award, where
(a) It appeared to the court that a part oI the award is upon a matter not reIerred to
arbitration;
(b) The award is imperIect in Iorm; or contains any obvious error which can be
amended without aIIecting such decision or it contains clerical mistakes (Section 15).
The court had also the power to remit the award to the arbitrator Ior Iresh consideration, iI
any issues were leIt undetermined, or where the award was so indeIinite to be incapable oI
execution, or where objection to legality oI award is apparent upon the Iace oI it.
The court could consider that the time Ior Iiling oI objections against the award had expired
or such application having been made had been reIused.
It was only upon satisIaction oI the above conditions that the court could pass a decree
conIirming the arbitral award and only then would the award become Iinal and binding and
thereaIter enIorceable.

!ROCEDURE FOR ENFORCEMENT UNDER TE NEW ACT

Under the new Act, the procedure Ior enIorcement stands simpliIied to a very great extent
when compared to the provisions oI the old Act.
Section 35 oI the new Act makes the award Iinal and binding on parties and persons claiming
under them.
Section 36 provides Ior enIorcement oI the arbitral award as though it were a decree oI the
court, and a party is entitled to enIorce the arbitral award, when the time Ior making an
application to set aside the arbitral award had expired or such application having been made,
had been reIused. This saves the time spent under the old Act to make an award a decree oI
court.
ThereIore under the new Act, aIter an award is made or passed, the party in whose Iavour an
award is made has nothing to do but just wait whereas under the old Act the winning party
had to Iile an application within 30 days oI receipt oI the award Ior getting it made a rule oI
the court.

ROUNDS FOR SETTN ASDE AN ARBTRAL AWARD

An important aspect which needs to be considered is the aspect relating to setting aside oI an
arbitral award. Under Section 34(2) oI the new Act, an award may be set aside by the court
either on the application oI the party or (without such application) by the court under certain
circumstances. The grounds under which a party may apply to the court to set aside an award
are only those mentioned in Section 34(2). They are
a. Where a party making the application was under some incapacity.
b. The arbitration agreement is not valid under the law to which the parties are
subjected or Iailing such indication thereon, under the law Ior the time being in Iorce.
c. The party making the application was not given proper notice oI the appointment oI
arbitrators or oI the Arbitral Tribunal or was otherwise unable to present his case.
d. Arbitral award deals with a dispute not contemplated by the parties or beyond the
terms oI submission.
e. Composition oI the Arbitral Tribunal was not in accordance with the agreement oI
the parties.
f. Subject-matter oI dispute is not capable oI settlement by arbitration under the law
Ior the time being in Iorce.
g. The arbitral award is in conIlict with the public policy oI the country.
The court can enIorce the award only iI application Ior setting aside it is disallowed or the
time Ior making such prayer is over. The last-mentioned position seems to run counter to the
avowed objects oI the Act, namely avoidance oI delay. It is noteworthy to mention that once
an application is preIerred under Section 34, the executing court has no jurisdiction to enIorce
the award, until and unless the application under Section 34 is dismissed or reIused. This is a
marked departure Irom even the normal rule under the Code oI Civil Procedure, 1908 where
an executing court can execute the decree iI there exists no stay by the appellate court. In the
opinion oI the author, this ought not to have been the position under the new Act.
EnIorcement oI the award should be permitted unless there is a stay by the court hearing an
application under Section 34. That appears to be an inadvertent departure under the new Act
Irom the normal procedure contemplated under the Civil Procedure Code and runs contrary to
the avowed object oI speedy resolution oI disputes contemplated under the new Act. It is in

this area that Section 36 is deIinitely capable oI being put to mischieI and thereIore requires a
Iresh look.

A BREF STORY OF TE CONVENTONS & OVERVEW OF TE RELEVANT

SECTONS OF TE ACT
Background to the New York Convention
3

AIter the First World War, international trade increased and at the same time, there was also
an increase in the use oI international commercial arbitration Ior the resolution oI disputes
relating to this international trade. A need was Ielt Ior providing proper arbitral machinery Ior
the resolution oI disputes in this manner, subject to the jurisdiction oI diIIerent States. In this
regard, the ICC promoted an international convention Ior removal oI impediments to the
enIorcement oI the arbitral awards.
4

The Iirst serious eIIort in this direction was made under the auspices oI the League oI
Nations. These eIIorts resulted in the Protocol on Arbitration Clauses, which was ratiIied by
30 States on 24
th
September 1923. This Protocol also provided a procedure Ior conducting
arbitration and a mechanism Ior execution oI the same. Article 2 oI the Protocol gave the
parties the Ireedom to choose the constitution oI the Arbitral Tribunal and the Ireedom to
conduct the arbitration in a country oI their choice. However, the Protocol`s major
shortcoming was present in Article 3. Due to the construction oI this Article, only domestic
awards could be enIorced by the Courts oI the member States.
In order to overcome this deIiciency, inter alia, inherent in the above Protocol, the League oI
Nations pushed Ior the draIting oI another better treaty. The new Convention was concluded
in Geneva on 26
th
September 1927 and was christened the Convention on the Execution oI
Foreign Arbitral Awards, Ior short the 'Geneva Convention. This Convention rectiIied the
major errors oI the old Protocol and was ratiIied by 27 States. As per the Geneva Convention,
each contracting State was required to recognize and enIorce an arbitration award made in
another contracting State pursuant to an agreement covered by the 1923 Protocol.
India was a party to the Protocol and the Geneva Convention, subject to the reservation oI
limiting India`s obligations in respect thereoI to contracts which were considered as
commercial under the laws oI India. For implementing and giving eIIect to the Protocol and
the Geneva Convention, the Arbitration (Protocol and Convention) Act, 1937 was enacted.
Whatever the plus points oI the Geneva Convention, India`s experience showed that the
Convention was not conducive to the speedy enIorcement oI Ioreign arbitral awards. The

The Delhi High Court in one case traced the history and background to the New York Convention and India`s
role in the same Gas Authority of India Ltd. v. SPI CAPAG, SA (1994) 1 Comp. L.J. 374, at 383-385 (Delhi)

K.K. Venugopal, et al. (eds.), ustice R.S. Bachawats Law of Arbitration and Conciliation (3
rd
ed. Nagpur
Wadhwa & Co. 1999), at 974

most important reason Ior this was that the beneIiciary oI the award was required to show to
the Court beIore which the matter came Ior enIorcement that the award had become Iinal in
the country in which it was made. The Convention also laid too much emphasis on the
remedies that were open to the parties to invoke the law oI the country where the award was
made, Ior the purposes oI setting aside oI the same.
These shortcomings were noticed not only by India, but also by the Economic and Social
Council (ECOSOC) oI the United Nations. The ECOSOC held extensive discussions and
prepared a draIt oI a new convention Ior the enIorcement oI international arbitral awards.
Finally on 10
th
June 1958, the ECOSOC passed a resolution and the New International
Convention on the Recognition and EnIorcement oI Foreign Arbitral Awards, Ior short the
New York Convention, was adopted.
In order to give eIIect to the New York Convention, the Indian Parliament passed the Foreign
Awards (Recognition and EnIorcement) Act, 196. However, this Act was repealed by the
Arbitration and Conciliation Act, 1996. The new Act lays down in detail provisions relating
to recognition and enIorcement oI both Geneva and New York Convention Awards.
In the Iollowing pages, the researcher will examine those provisions oI the Arbitration and
Conciliation Act, 1996 which are relevant to this project and which have provoked discussion
among the commentators upon the subject.
An Overview of the relevant sections
Section 44 oI the Arbitration and Conciliation Act, 1996 (corresponding to Section 2 oI the
Foreign Awards (Recognition and EnIorcement) Act, 1961) reads thus
'In this chapter, unless the context otherwise requires, 'Ioreign award means an arbitral
award on diIIerences between persons arising out oI legal relationships, whether contractual
or not, considered as commercial under the law in Iorce in India, made on or aIter the
11
th
day oI October 1960
(a) In pursuance oI an agreement in writing Ior arbitration to which the Convention set Iorth
in the First Schedule applies, and
(b) In one oI such territories as the Central Government, being satisIied that reciprocal
provisions have been made may, by notiIication in the OIIicial Gazette, declare to be
territories to which the said Convention applies.
By an analysis oI this deIinition, the ingredients oI a Ioreign award` are

1. The diIIerence must arise out oI a legal relationship considered as commercial.

2. The award must have been made on or aIter 11
th
October 1960.
3. The Award must be made in pursuance oI an agreement in writing Ior arbitration.
4. The arbitration agreement is subject to the applicability oI the New York Convention
set Iorth in the First Schedule oI the Act.
5. The award must be made in one oI the reciprocating States notiIied by the Central
Government.
Most oI the above conditions are selI-explanatory, but one leaves some scope Ior
interpretation and consideration.
Section 45 lays down that one oI the parties to an arbitration agreement may approach a
judicial authority and have the dispute reIerred Ior arbitration. An analysis oI this section is
beyond the scope oI this project, as it, strictly speaking, does not deal with enIorcement oI
Ioreign arbitral awards.
Section 46 states that any Ioreign award that is enIorceable as per the provisions oI the Act
will be binding as regards the parties to the award. ThereIore, this section provides Ior the
recognition oI a Ioreign award by an Indian court, as enIorcement necessarily contains
recognition.
Section 47 provides a list oI documents to be produced beIore the enIorcing court as evidence
oI the Ioreign award. It also provides that in case the award is available in a language other
than English, a translation in English must be placed beIore the Court. The explanation to the
section states that only the principal civil court in the district having original jurisdiction is
competent to enIorce a Ioreign arbitral award and it speciIically excludes subordinate civil
courts Irom enIorcing these awards.
Section 48 enlists conditions under which the court may refuse enIorcement oI Ioreign
awards. In other words, all Ioreign awards are enIorceable by the courts, unless they Iall into
any oI the categories mentioned in Section 48. The party against whom a Ioreign award is
invoked can produce prooI regarding these grounds. In short, enIorcement oI a Ioreign
arbitral award may be reIused, iI
1. The parties to the agreement reIerred to in Section 44 were under some incapacity;
2. The agreement was not valid under the law to which it was subjected or under the law
where the award was made;
3. The party applying Ior reIusal oI enIorcement was not given proper notice oI the
appointment oI the arbitrator;

4. The party was not given proper notice oI the arbitration proceedings;
5. The party was otherwise unable to present its case beIore the arbitral tribunal;
6. The arbitral tribunal has exceeded its jurisdiction in making the award;
7. The composition oI the arbitral tribunal was not in accordance with the agreement
between the parties, or was not in accordance with the law oI the country where the
arbitration took place;
8. The arbitral procedure Iollowed by the tribunal was not in accordance with the
agreement between the parties, or was not in accordance with the law oI the country
where the arbitration took place;
9. The award has not become binding on the parties under the law oI the country in which
it was made;
10. The award has been set aside or suspended by a competent authority oI the country in
which the award was made;
11. The subject-matter oI the dispute was not capable oI settlement by arbitration under the
law oI India;
12. The enIorcement oI the award would be contrary to the public policy oI India; or
13. The award was obtained by Iraud or corruption.
The wording oI the section makes it clear that the above grounds are exhaustive. So a party
applying Ior setting aside the award must satisIy the enIorcing court that the award was
tainted by one oI the above grounds only.
Section 49 states that iI a Ioreign award is enIorceable by the court, it shall enIorce it as iI it
were a decree oI the court. This is a change Irom the 1961 Act, where the award had to be
Iirst Iiled in court Ior enIorcement; then the court was required to pronounce judgement in
accordance therewith. This cumbersome procedure has been done away with in the 1996 Act,
where the court enIorces the award as iI it were its own decree. ThereIore, in this respect,
enIorcement oI a Ioreign award` is the same thing as execution oI a decree` as per Order 21
oI the C.P.C.
5
Further, the court has to execute the award as it is and is not allowed to alter or
modiIy the award. However, in the case oI ambiguity in the award, the court can determine
what it means.
6

uerst Day Lawson Ltd. v. indal xport Ltd., AIR 2001 SC 2293

osh Navigation Inc. v. Hindustan Petroleum Corporation Ltd., AIR 1989 SC 2198

Section 50 states that iI a court passes an order reIusing to enIorce a Ioreign award under
section 48, then the aggrieved party has the right to appeal against that order. The appeal lies
to a single judge oI the High Court.
7
However, the parties are Iorbidden Irom entering into a
second appeal against such orders by virtue oI section 50(2) oI the Act.
Sections 53 to 60 deal with the enIorcement oI arbitral awards made under the Convention on
the Execution oI Foreign Arbitral Awards, 1923 (Geneva Convention Ior short). In many
ways, the provisions under this chapter are very similar to the chapter on enIorcement oI New
York Convention Awards.
Section 53 deIines 'Ioreign award Ior the purposes oI this chapter. Many oI the phrases used
in this section are similar to the ones used in Section 44. Section 53 also states that a Ioreign
award is an arbitral award relating to a dispute involving matters considered as commercial
under the law in Iorce in India. The interpretation oI this phrase is the same as Ior Section 44.
Section 53 states that the award must have been made aIter 28
th
July 1924 Ior it to be
recognised as a 'Ioreign award under this chapter. The dispute must be between two
persons, one oI whom is subject to jurisdiction oI some one oI such power as the Central
Government may declare to be parties to the Convention and the other is subject to the
jurisdiction oI some other oI the said powers, and the arbitration takes place in one oI the
territories as the Central Government may declare to be territories to which the Convention
applies.
Section 54 is analogous to Section 45. It states that one oI the parties to whom Section 53
applies approaches a judicial authority to make a reIerence oI the dispute Ior arbitration, the
authority shall reIer the dispute Ior arbitration as per the agreement between the parties. Its
provisions are very similar to Section 45.
Section 55 is analogous to Section 46. It states that an award enIorceable under this chapter
will be binding as regards the parties to the award.
Section 56 is analogous to Section 47. It enlists the documents to be produced in the
enIorcing court as evidence oI the award.
Section 57 is analogous to Section 48. It enumerates the conditions under which the enIorcing
court may reIuse to enIorce an award made under the Geneva Convention.
Section 58 states that iI an award is enIorceable as per Section 57, the court will enIorce it as
iI it were its own decree. This is analogous to Section 49.

Orma Impex Pvt. Ltd. v. Nissai Asb Pvt. Ltd., AIR 1999 SC 2871

Section 59 states that an order oI the court reIusing to enIorce an award is an appealable
order. The appeal lies to a single judge oI the High Court. This section is analogous to
Section 50.

A FEW M!ORTANT AS!ECTS OF TE DEFNTON

Definition of ~foreign award
Part 2 oI the Arbitration and Conciliation Act, 1996 deals with the enIorcement oI arbitral
awards made under the New York Convention and the Geneva Convention. Sections 44 and
53 deIine which awards can be enIorced under this part as 'Ioreign awards. A Iew aspects
oI these deIinitions elicit a discussion.
'Legal relationship considered as commercial The deIinition oI Ioreign award` in section
44 reIers to 'legal relationships. considered as commercial under the law in Iorce in India.
The New York Convention made reIerence to the national law` and the declaration oI
accession to the New York Convention by India made reIerence to 'the law oI India.
8
What
is the importance oI 'law in Iorce in India and 'transactions which are considered as
commercial? One commentator believes that these words are oI such wide import that they
will envelop the entire body oI laws which are eIIective or operative in India. He says that
with several kinds oI transactions which may be considered as commercial` on the Iacts oI
each case, it is obvious that when the Parliament reIerred to the legal relationship considered
as commercial under the law in Iorce in India, it had in mind the general body oI laws with
reIerence to which the nature oI the transactions would be considered. The Bombay High
Court in uropean Grain and Shipping Ltd. v. Bombay xtractions Pvt. Ltd.
9
, considered the
scope oI Section 2 oI the Foreign Awards (Recognition and EnIorcement), 1961, which is
similar to section 44 oI the new Act, said
'II the nature oI the transaction between the parties is one which partakes oI commerce or
which is in the nature oI commerce, then inevitably the relation between the parties to the
contract or parties to the transaction will be clearly a commercial relationship. The nature oI
the relationship will depend on the nature oI the transaction and whether the nature oI the
transaction is commercial or not will have to be determined with reIerence to generally to the
law in Iorce in the country inclusive oI the operative legal principle in Iorce in India. The
mere use oI the word 'under preceding the words 'law in Iorce in India would not
necessarily mean that you have to Iind a statutory provision or a provision oI law which
speciIically deals with the subject oI particular legal relationship being commercial in
nature.

Justice B.P. SaraI & Justice S.M. Jhunjhunwala, Law of Arbitration and Conciliation (2
nd
ed. Mumbai Snow
White Publishers Pvt. Ltd. 2000), at 336

AIR 1983 Bom 36

In other words, the Court was trying not to conIine the term 'commercial by deIining it or
by reIerring to particular types oI transactions, but to keep the scope oI the section as wide as
possible. This policy was clear even in a later decision oI the Supreme Court.
10
In the
submission oI the researcher, this view taken by the courts is correct, as narrowing the scope
oI the section would mean that certain awards may not be enIorceable merely because oI a
technicality. This would be against the spirit oI Iree international trade, which can be
considered to be part oI public policy today.
Further, the researcher draws attention to the dictum oI the Supreme Court in Atiabari Tea
Co. Ltd. v.State of Assam
11
. In this case, the Court interpreted the term 'trade and commerce
used in Article 301 oI the Constitution. Even in this case, the Court has not restricted the
words 'trade and commerce to mean any speciIic activities alone, but to include all activities
wherein some commodities are exchanged Ior money or such-like commodities. ThereIore, it
is submitted that the public policy on this aspect is clear 'commercial must be given as
wide an interpretation as possible. Several other cases have also used this approach.
12

However, not all Ioreign arbitral awards are covered under these deIinitions. There are other
Ioreign awards, which cannot be classiIied under either Section 44 or Section 53. Firstly, the
researcher will see how certain awards cannot Iall under the deIinitions available in Part 2 oI
the Act.
1. The Central Government notiIies which countries are parties to the New York and
Geneva Conventions Ior the purpose oI enIorcement oI awards made in arbitrations
held in these countries. However, not all international commercial arbitrations take
place in these countries. Further, traders Irom India trade with people Irom countries,
which are not parties to either Convention. They might have arbitration clauses in their
contracts. In any oI these cases, the award announced by the arbitral tribunal cannot be
enIorced under Part 2 oI the Act, as they do not qualiIy Ior the deIinition oI 'Ioreign
award under Sections 44 and 53.
2. Although there is a wide interpretation given to the scope oI 'commercial used in the
deIinition oI Ioreign award`, there are many disputes which are not oI commercial
nature. Further, there are arbitrations which take place in Ioreign countries which are

R.M. Investment & Trading Co. Pvt. Ltd. v. Boeing Co., AIR 1994 SC 1136

AIR 1961 SC 232

See atehchand Himmatlal v. State of Maharashtra, AIR 1977 SC 1825, Mukesh H. Mehta v. Harendra H.
Mehta, (1995) 5 Comp L.J. 517 (Bom), osef Meisaner GMBR v. anoria Chemicals & Industries Ltd., AIR
1986 Cal 45

not commercial arbitrations. Awards announced in these arbitrations are not

enIorceable under Part 2 oI the Act.

ESSENTAL CONSDERATONS FOR TE ENFORCEMENT OF FOREN

AWARDS
Enforcement of Awards
Keeping in mind the two reasons discussed in the previous chapter regarding the inadequacy
oI Part 2 oI the Act Ior the enIorcement oI Ioreign awards, one needs to look at the avenues
available Ior the enIorcement oI Ioreign arbitral awards. Sometimes it so happens that a
person may require a process other than that speciIied in Part 2 oI the Act Ior enIorcing even
Convention awards. In the researcher`s opinion, all arbitral awards, even Ioreign awards
covered under Part 2, are enIorceable through Section 36 oI the Act.
Section 36 oI the Act states that an arbitral award is enIorceable by a civil court oI competent
jurisdiction in the same manner as the court executes its own decrees. In other words, all
arbitral awards are enIorceable by a court as though they are decrees passed by the court
itselI. Further, Sections 52 and 60 state that the provisions oI Part 2 are not exhaustive Ior the
enIorcement oI awards made under the two Conventions the parties can take recourse to
any mechanism aIIorded by the law to enIorce arbitral awards. Extending the same logic to
the non-Convention awards, the researcher submits that non-Convention awards passed
during an international arbitration are enIorceable
An interesting aspect oI Section 36 is that it gives the status oI decree to arbitral awards.
Some commentators reIer to this as a 'deemed decree, although the researcher submits that
this would be a misnomer. According to Section 36, a court oI competent jurisdiction will
enIorce an arbitral award, as though the award was a decree that had been passed by it.
ThereIore, as Iar as enIorcement oI an arbitral award is concerned, there is no diIIerence
between the award and a decree oI the court. However, the term 'deemed decree seems to
indicate that the award is in Iact a decree oI the court. This is not true, because the court has
not heard the parties, the court knows nothing about the merits oI the dispute, it has not
applied its mind while resolving the matter; thereIore, there is no way that the award will be
regarded as a decree oI the court. What the section provides is that the court will execute the
arbitral award in the same manner as it would execute one oI its own decrees.
Hence, a Ioreign arbitral award, which cannot be enIorced under Part 2 oI the Act, can be
enIorced under Section 36 oI the same Act. Further, under Sections 52 and 60, even awards
which can be enIorced under Part 2 can be enIorced with the help oI Section 36 instead.

Defences Against Enforcement under the Convention Article V(1)]

The Iollowing are the deIences to the enIorcement oI awards Iound in Article V in the
Convention. The Iirst Iive deIences are those that must be raised by a party, and the party that
raises them has the burden oI prooI to establish those.
Lack of Capacity, Lack of Agreement
The Iirst deIence is incapacity oI the party or a lack oI a valid arbitration agreement. One
might be concerned about incapacity iI there was arbitration in a dispute with a governmental
entity; in other words, the question might be whether that entity had the capacity to enter into
the arbitration agreement because the entity lacks authority to bind itselI to arbitrate. This
issue is also relevant in domestic arbitrations while dealing with the government.
The other issue is the lack oI a valid arbitration agreement. This issue should not pose great
obstacles because generally such matters would be explored in the course oI the arbitration as
potential deIences to enIorcement oI the contract.
nadequate Notice and Opportunity to !resent Case
The second deIence is inadequate notice or opportunity to be heard. It is interesting to note
that in the Convention itselI there is no diIIerentiation between a contested and deIault award.
This contrasts with the situation in the enIorcement oI Ioreign judgments, where, in the case
oI a deIault judgment, courts are more willing to look at what actually occurred in the case
itselI.
In the enIorcement oI arbitral awards under the Convention, the Iocus oI the courts is more
on whether the losing party had notice oI the proceeding and an opportunity to attend
conIerences and hearings, submit brieIs, etc. II the party had those opportunities and Iailed to
avail itselI oI them, courts do not have a great deal oI sympathy and proceed to enIorce
Ioreign arbitral awards.
Waiver
In arbitration cases it is very common that, when there are party-appointed arbitrators, they
make appropriate disclosures at the outset that someone can perhaps raise issues oI bias,
conIlict oI interest, etc. So even iI there are procedural deIiciencies that may, theoretically,
provide Ior a reIusal oI enIorcement, iI there is no objection made in the course oI the
arbitration, it will be regarded by the courts as having been waived.

Awards Exceeds Arbitrators Authority

The third ground, which is in Article V(1)(c), is that the award exceeds the scope oI the
arbitrator`s authority. This, too, is very narrowly construed by courts, which do not want to
get involved in analyzing the merits or the decision making process undertaken by the
arbitrators. In Iact, iI courts see that there were extensive hearings and submissions and that a
Iairly thorough decision was rendered, they will not reIuse to enIorce. A good example is the
Fertilizer Corporation oI India case, where the contract explicitly said that consequential
damages were not to be available. Notwithstanding that provision, there was an award in
India under Indian law that included consequential damages, and the US court upheld that
award.
Composition of Tribunal
The Iourth ground, Iound under Article V(1)(d), is irregularity in the composition oI the
arbitration panel or procedure. Essentially there has to have been a violation oI the
procedures set Iorth in the arbitration agreement, such as Ior the appointment oI arbitrators,
discovery, or exchange oI pleadings. Arbitration agreements are oIten speciIic in this regard.
Procedures may also be mandated under the law oI the place where the arbitration was held.
Was the Award Binding, Set Aside, or Suspended?
The last ground under Article V is that the award was binding or was set aside or suspended.
Obviously, iI that were the situation the court would reIuse to enIorce the award; and
'binding under the Convention only means that it`s not subject to Iurther arbitral procedures.
It could be subject to court challenges, but that would not change the Iact that the award is
binding.
rounds
Two additional grounds, which are under Article V(2) oI the Convention, can be raised by
either a party or by the court on its own initiative.
ARBTRABLTY
The Iirst is that the subject matter oI the dispute is not arbitrable under the law oI the country
where enIorcement is sought. Obviously, in view oI the developments in this country in terms
oI the extension oI arbitrability, particularly in the international arena, there are very Iew
areas in Iact that this would provide a basis Ior avoiding enIorcement oI an award.
!ublic !olicy

The Iinal ground Ior non-enIorcement oI an award is that enIorcement would violate public
policy. This ground has not been used with much success, although it has been attempted in
numerous cases. OI course, every attempt to deny enIorcement oI an award always has the
public policy ground inherent in it, either independently or as a backdrop to the main
arguments against enIorcement.
Conditions for enforcement under the ndian Law
The grounds mentioned in section 48 are exhaustive. EnIorcement may be reIused only iI the
objector can prove one oI the grounds given in sub section (1) or iI the Court Iinds existence
oI a ground listed in sub-section (2). As a general rule oI interpretation the grounds under
section 48 Ior reIusal are to be construed narrowly.
The Courts are not Iree to reIuse to enIorce a Ioreign right at the pleasure oI the judges, to
suit the individual notion oI expediency or Iairness. They do not close their doors unless help
would violate some Iundamental principle oI justice, some prevalent conception oI good
morals, some deep-rooted tradition oI the common weal.
The grounds listed in sub-section (1) oI section 48 oI the 1996 Act Ior reIusal oI enIorcement
oI the award are to be proved by the party against whom it is invoked (hereinaIter also the
respondent`). The burden oI prooI to the show existence oI the grounds Ior reIusal is on the
respondent. These grounds can be invoked only by an application oI the respondent.
Under the scheme oI section 7 oI the 1937 Act the plaintiIIs had to prove that the award was
enIorceable under the Act and in that connection the plaintiIIs had to prove what is reIerred to
in detail in clause (a), (b), (c), (d) and (e) oI section 7(l) oI the 1937 Act. The plaintiIIs
would have Iurther to prove that 'the enIorcement oI the award is not contrary to the public
policy or the law oI India.

Enforcement of a foreign award may be refused
Sub-sections (1) and (2) oI section 48 oI the 1996 Act have used Permissive expression that
the enIorcement oI a Ioreign award 'may be reIused instead oI mandatory expression oI
'shall. The Court has discretion to overrule the deIence put up by the respondent even iI he
has proved the existence oI one oI the grounds listed in this section. The Court may use
discretion in cases where it Iinds the objector is estopped Irom invoking any oI the grounds
listed in section 48 oI the 1996 Act or that the 'public policy violation involved is not such
as to prevent enIorcement oI the award.

Scope of the enquiry

Under the Geneva Convention, in order to obtain recognition or enIorcement oI a Ioreign
arbitral award, the requirements oI clauses (a) to (e) oI Article 1 had to be IulIilled and in
Article 2, it was prescribed that even iI the conditions laid down in Article I were IulIilled
recognition and enIorcement oI the award would be reIused iI the Court was satisIied in
respect oI matters mentioned in clauses (a), (b) and (c). The principles, which apply to
recognition and enIorcement oI Ioreign awards, are in substance, similar to those adopted by
the English Courts.
13
With regard to enIorcement oI Ioreign judgments, the position at
common law is that a Ioreign judgment which is Iinal and conclusive cannot be impeached
Ior any error either oI Iact or oI law and is impeachable on limited grounds, namely, the
Court oI the Ioreign country did not, in the circumstances oI case, have jurisdiction to give
the judgment in the view oI English law; the judgment is vitiated by Iraud on part oI the party
in whose Iavor the judgment is given or Iraud on the part oI the Court which pronounced the
judgment; the enIorcement or recognition oI the judgment would be contrary to public policy;
the proceedings in which the judgment was obtained were opposed to natural justice.
14
In the
matter oI enIorcement oI Ioreign arbitral awards at common law a Ioreign award is
enIorceable iI the award is in accordance with the agreement to arbitrate which is valid by its
proper law and the award is valid and Iinal according to the arbitration law governing the
proceedings. The award would not be recognized or enIorced iI, under the submission
agreement and the law applicable thereto, the arbitrators have no justiIication to make it, or it
was obtained by Iraud or its recognition or enIorcement would be contrary to public policy or
the proceedings in which it was obtained were opposed to natural justice. The English Courts
would not reIuse to recognize or enIorce a Ioreign award merely because the arbitrators (in its
view) applied the wrong law to the dispute or misapplied the right law.
It is a generally accepted interpretation oI the New York Convention that the Court beIore
whom the enIorcement oI the Ioreign award is sought may not review the merits oI the
award. The main reason is that the exhaustive list oI grounds Ior reIusal oI enIorcement
enumerated in Article V does not include a mistake in Iact or law by the arbitrator.
Furthermore, under the New York Convention the task oI the enIorcement judge is a limited
one. The control exercised by him is limited to veriIying whether an objection oI a
respondent on the basis oI the grounds Ior reIusal oI Article V(I) is justiIied and whether the

Dicey and Morris , The Conflict of Laws, 11

th
Edn. , Vol. 1, p. 578

Dicey and Morris, The Conflict of Laws, 11

th
Edn. Rules 42 to 46, pp. 464 to 476; Cheshire and North,
Private International Law, 12th Edn. pp., 368 to 392

enIorcement oI the award would violate, the public policy oI the law oI his country. This
limitation must be seen in the light oI the principle oI international commercial arbitration
that a national Court should not interIere with the substance oI the arbitration.
15

The New York Convention does not permit any review on the merits oI an award to which to
the Convention applies and in this respect, thereIore, diIIers Irom the provisions oI some
systems oI national law governing the challenge oI an award, where an appeal to the Courts
on points oI law may be permitted.
16

In proceedings Ior enIorcement oI a Ioreign award under the 1961 Act the scope oI enquiry
beIore the Court in which award is sought to be enIorced is limited to grounds mentioned in
section 7 oI the 1961 Act and does not enable a party to the said proceedings to impeach the
award on merits.
17

Meaning of enforcement`
In Pratabmill v. .C. Sethia Ltd.
18
, it was submitted that the agreement and the award were
against public policy oI India and the expression; 'enIorcement thereoI means execution oI
the Ioreign award under section 7 oI the 1961 Act. Calcutta High Court has observed-
'It is said that the awards in this case only direct the appellant to pay a certain sum oI money
as damages. As such, on the Iace oI it, it cannot be said that the awards are against any
public policy. The diIIiculty oI accepting this argument is the narrow meaning it attributes to
the word, 'enIorcement. EnIorcement is not merely the technical part oI execution.
EnIorcement includes the whole process oI getting an award as well as its execution. We are,
thereIore, not prepared to limit the word, 'enIorcement, in section 7(i) oI the Act to the mere
technical part oI its execution.
~!ublic !olicy
As all arbitration practitioners and scholars know, violation oI public policy oI the enIorcing
State has long been a ground Ior reIusing recognition/enIorcement oI Ioreign judgments and
awards. This principle is enshrined in Article V.2 oI the New York Convention and Article
36 oI the UNCITRAL Model Law. The public policy exception to enIorcement is an
acknowledgement oI the right oI the State and its courts to exercise ultimate control over the

The New York Convention oI 1958 Towards a UniIorm Judicial Interpretation by Albert Jan van den Berg
p.269

RedIem and Hunter, Law and Practice of International Commercial Arbitration 2

nd
Edn., p.461

Renusagar Power Co. Ltd. v. General lectric Co., AIR 1994 SC 860 (881)

AIR 1960 Cal 702 (708)

arbitral process. There is a tension, however, which the legislature and the courts must
resolve between on the one hand, not wishing to lend the State`s authority to enIorcement oI
awards which contravene domestic laws and values; and, on the other hand, the desire to
respect the Iinality oI Ioreign awards. In seeking to resolve this tension, some legislatures and
courts have decided that a narrower concept oI public policy should apply to Ioreign awards
than is applied to domestic awards. This narrower concept is oIten reIerred to as international
public policy. This name suggests that it is in some way a supra-national principle; however,
in practice it is no more than public policy as applied to Ioreign awards and its content and
application remains subjective to each State.
As is always the case when the term is used, there was some doubt as to the scope oI 'public
policy used in Section 48. What considerations must weigh on the court`s mind beIore it can
declare that an award is not enIorceable because it is contrary to public policy? This question
was considered in Renusagar Power Co. v. General lectric Co.
19
. The court held that mere
contravention oI law would not attract bar oI public policy, but the award must be contrary to
(i) Iundamental policy oI Indian law, or (ii) the interests oI India, or (iii) justice or morality.
The researcher submits that the decision oI the court in the above case has not cleared the
ambiguity regarding the term because it has also used vague and general terms such as
'Iundamental policy and 'national interest and 'justice. In this regard, the dictum oI the
Supreme Court in Central Inland Water Transport Co. Ltd. v. Brofo Nath Ganguly
20
is
noteworthy
'Public policy connotes some matter which concerns the public good and the public interest.
The concept oI what is Ior the public good or in the public interest or what would be injurious
or harmIul to the public good or the public interest has varied Irom time to time.
The above paragraph Irom this judgement makes it clear that public policy is a subjective
term, which has to be determined keeping in mind the social, economic and political status oI
the country and also the Iacts and circumstances oI the case on hand. As an aid to
interpretation oI the term public policy`, the Explanation to Section 48 states that an award
obtained by Iraud or corruption is also contrary to public policy.

AIR 1986 Del 8

AIR 1986 SC 1571

In another recent decision by the Bombay High Court, the point that arose Ior consideration is
the circumstances under which a Ioreign award may be regarded as unenIorceable in India,
on the ground oI being contrary to public policy.
The case relates to a contract under which Ruchi International, an Indian Company, was to
sell soybean meal Irom India to a French buyer. The terms and conditions oI the contract
were governed by the GAFTA General Conditions oI Contract and Arbitration Rules.
GAFTA is an international chamber oI commerce dealing with matters relating to Iood and
grain trade. The buyer alleged breach oI contract by the seller and invoked the arbitral clause
under GAFTA rules, and an award was passed in Iavour oI the claimant buyer.
In the appeal, it transpired that the claimant, who was under liquidation, had assigned its
rights in the claim in the arbitration to a third party (the 'assignee). The Appellate Forum
held the assignment to be valid under the applicable laws as it was done with notice to the
contesting party. The objection that the arbitration agreement had Iailed was rejected. The
assignee was permitted to contest the appeal on substitution oI the name oI the parties, and
the appeal was rejected on merits.
The assignee Iiled a petition in the Indian court Ior enIorcement oI the award under the Indian
Arbitration and Conciliation Act ('Arbitration Act), 1996, where it was resisted on the
ground oI being opposed to public policy in view oI Section 6(e) oI the TransIer oI Property
Act.
Under Section 6(e) oI the TP Act, a mere right to sue cannot be transIerred or assigned. The
assignment in the present case took place in appeal proceedings and was held valid under the
applicable laws. Once the assignment was accepted as valid and the award passed, the
question arising Ior consideration is whether the enIorcing court could treat the award as
being opposed to public policy.
The GAFTA award is a 'Ioreign award within the meaning oI the Arbitration Act. The
question is oI whether Section 6(e) oI the TP Act would extend to a Ioreign award. The
Supreme Court in the case oI Renusagar Power Co Vs General lectric had held the areas
covered by public policy and the law oI the land are not necessarily coextensive. A Ioreign
award would be reIused enIorcement on being contrary to public policy, iI its enIorcement is
against the Iundamental policy oI India law or the interests, justice or morality oI India.

What had to be considered by the enIorcing court is that assignment was not oI the right to
sue but oI the award, on the passing oI which a debt came into existence. Is then an award
based on an assignable right unenIorceable, because iI the assignee had sued in India his case
would be barred under Section 6(e) oI the TP Act? The award cannot be said to be opposed to
justice when the appellate Iorum had considered and decided the issue oI assignment. By no
stretch oI imagination can the award be regarded being opposed to morality. TransIer oI a
right to sue could interpret as being against morality, iI the purpose is gambling or betting.
But iI such law is valid in the country where the award is made, then the enIorcing court
cannot reIuse execution on such grounds. There are several pronouncements oI English
courts in similar situations.
On these grounds, the Bombay High Court permitted the enIorcement oI the award. The
division bench has concurred, clariIying that Section 6(e) would have been applicable only, iI
the assignee had Iiled its claim Ior damages in India on the basis oI the assignment. The court
has thereIore adopted the international approach towards enIorcement oI Ioreign awards,
instead oI creating technicalities an indication that the Indian judiciary has expressed its
atonement with a globalised commercial world instead oI taking a jingoistic position.

CONCLUSON

O As deIined under sections 44 and 53 oI the Arbitration and Conciliation Act, 1996 the
core oI the deIinition oI a Ioreign award that can be enIorced under Part 2 oI the Act is
that the award should be in relation to a dispute arising out oI a legal relationship that
can be described as commercial under the law oI India. The term commercial has been
given a wide interpretation by the Indian courts. However, the researcher is not
convinced with the logic behind conIining the scope oI this Part to commercial
transactions, as it could easily have been extended to all arbitral awards under the
Convention without any hassle.
O The enIorcement mechanisms Ior awards under both the New York and Geneva
Conventions are similar. Once the court is convinced that the award is a Ioreign award
as per the statute, it will enIorce the award. However, iI certain conditions are met, the
court can reIuse to enIorce the award. Such an order oI reIusal is appealable. Once the
court is convinced that the award is a Ioreign award, it will execute the award as iI it
were its own decree. However, the party seeking to enIorce the award need not Iollow
this mechanism; he can Iollow any mechanism available to him under law to ensure
enIorcement oI the award; in other words, he can avail oI Section 36 to enIorce his
award.
O Similarly, a party seeking to enIorce an award that Ialls under neither Convention, he
can ask the court to enIorce it under Section 36. Such an award is also executed in the
same manner as a decree oI the enIorcing court. This Iurther strengthens the
researcher`s point that the Act contains unnecessary technicalities regarding the
deIinition oI Ioreign award, as the enIorcement mechanisms under Part 2 and Section
36 are very similar.
O The Act has gone a long way to promote the Indian economy. The Act is based on the
UNCITRAL model law on arbitration, but Parliament has gone a step Iurther and has
tried to plug the loopholes contained in the model law. Hence, the end product is that
India has a very useIul arbitration law, which would go a long way to promotion oI
Ioreign trade in India. The results are there to be seen. Arbitration is one oI the Iastest
emerging Iields in India and as Iar as the law on paper is concerned, India is one oI the
best in the world. The enIorcement mechanism is also not slack, although the enIorcing
authorities are the ordinary civil courts. This is an encouraging sign and shows that the
law oI arbitration has not betrayed the policy oI liberalisation.

BBLORA!Y

ARTCLES
1. Dhyan Chinnappa, nforcement of Arbitral Awards (2002) 8 SCC (Jour) 39.
2. Kenneth R. Davis, '&nconventional Wisdom. A New Look At Articles J And JII Of
The Convention On The Recognition And nforcement Of oreign Arbitral Awards ',
37 Tex. Int`l L.J. 43.
3. Pelagia Ivanova, 'orum Non Conveniens And Personal urisdiction. Procedural
Limitations On The nforcement Of oreign Arbitral Awards &nder The New York
Convention, 83 B.U. L. Rev. 899,
4. S.K. Dholakia, Case Comment. Bhatia International v. Bulk Trading S.A., (2003) 5
SCC (Jour) 22.

BOOKS
1. ustice B.!. Saraf & ustice S.M. hunjhunwala, Law of Arbitration and
Conciliation (2
nd
ed. Mumbai Snow White Publications Pvt. Ltd. 2000).
2. K.K. Venugopal, et al. (eds.), ustice R.S. Bachawats Law of Arbitration and
Conciliation (3
rd
ed. Nagpur Wadhwa & Co. 1999).
3. !. Chandrasekhara Rao, The Arbitration and Conciliation Act, 1996. A
Commentary (New Delhi Universal Law Publishing Co. 1997).
4. !.C. Markanda, Law Relating to Arbitration and Conciliation (2
nd
ed. Nagpur
Wadhwa & Co. 1997).
5. Sudipto Sarkar & V.R. Manohar (eds.), Sarkars Law of Civil Procedure (10
th
ed.
Nagpur Wadhwa & Co. 2002).
6. Surendra Malik, Supreme Court on Arbitration (Lucknow Eastern Book Co. 2001).

WEBSTES
1. www.manupatra.com
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