Recognition and enforcement of

Foreign Judgment
Private International law
What is enforcement of foreign
judgment
 Once the court has determined its jurisdiction and
applicable law to solve the case involving a foreign
element the next step before such court is the enforcement
of judgment.
 The enforcement of any judgment is the final step to solve
and finish the case involving such element.
 In law the enforcement of foreign judgment is the
recognition and enforcement in one jurisdiction of
judgment made in another foreign jurisdiciton.
Contd.,
 Foreign judgment may be recognised based on bilateral or
multilateral treaties or understandings, or unilaterally
without an express international agreement.
 Once a foreign judgment is recognised, the party who was
successful in the original case can then seeks its
enforcement in the recognizing country.
 Generally the foreign judgment are enforced based on
reciprocity or participation in a treaty
 The court of the both the states must treat the judgment
equally binding and enforceable in the two jurisdiction
Grounds for Non-enforcement of
a foreign Judgment
1. Where the judgment was not rendered by an impartial
tribunal under procedures compatible with the
requirement of due process of Law.

2. where the foreign court did not have personal

jurisdiction over the defendant. where the foreign court
did not have jurisdiction over the subject matter

3. Where the defendant did not receive notice of the

proceedings in sufficient time to enable him to defend
Contd.,
4. where the judgment was obtained by fraud.

5. where the judgment is repugnant to the public policy of

the State where enforcement is sought.

6. where the judgment conflicts with another final and

conclusive judgment

7. Where the jurisdiction is based only on personal service

the foreign court is an inconvenient forum for the trial

8. Where the judgment was obtained through an illegal

transaction.
Recognition and enforcement of
foreign Judgment in India
 The recognition of a foreign judgment in India occurs
when a court of a country or jurisdiction accepts a judicial
decision made by the courts of another foreign country or
jurisdiction and gives a judgment in substantially identical
terms without rehearing the substance of the original
lawsuit.
Legislative provision in India
 In India the Private international law rules provides in the code
of civil procedure code, 1908.
Section 44A of C.P.C lays down provision fore execution of
foreign decrees in India, where the said decree is passed by the
court of reciprocating territory.
 it further provides that where a certified copy of decree of any
of the superior courts of any reciprocating territory has been
filed in a district court the decree may be executed in India is it
is been passed by district Courts
 Section 13 and 14 of C.P.C lays down the provision for
enforcement of a judgment delivered by a foreign court of
competent jurisdiction.
Notice to Show Causes against
execution
 Where an application is made for execution of a decree
under the provision of section 44A, the court shall issue a
Notice to the person against whom execution is applied for,
requiring him to show causes, on a date to be fixed why the
decree should not be executed against him..
Reciprocating territory
 As per the explanation to the section 44A of the C.P.C.
“reciprocating territory’ means any country or territory
outside the India which the Central Government may by
notification in the official Gazette declare to be a
reciprocating territory and superior courts with reference to
any such territory means such courts as may be specified in
the said notification.
 Thus under section 44 A of the CPC a decree of any of the
superior courts of any reciprocating territory are executable
as a decree is passed by the District Courts.
Contd.
 Where a decree does not pertain to a reciprocating territory
the decree shall not be directly enforceable in India.
 In such cases a fresh suit will have to be filed in India on
the basis of such decrees or judgment which may be
constructed as causes of action for the said suit.
Section 13 of CPC
 A Foreign judgment will be inconclusive under section 13
if..,
 It is not been propounded by the competent courts

 It has nor been given on merits of the case

 When the procedure in which the proceedings are obtained

are opposed to the natural justice
 Where it is obtained by fraud

 Where it sustains a lain founded on breach of any law in

force in India
Arbitration and enforcement of
foreign arbitral awards in India
 The expansion and globalization of cross border
investment and trade has led to increased complex
commercial relationships between business, investors and
States. In many cases parties often prefer to settle their
dispute privately and informally through arbitration
 Unlike judicial process arbitration is conducted outside the
court system by impartial arbitrators who are selected by
the parties based on the criteria that best fits with the nature
of the contract.
Contd.,
 Since the arbitration is becoming more and more accepted
method of resolving International commercial disputes, the
number of arbitral institution are increased all over the
world to resolve such dispute.
 There are more than 100 arbitral institution across the
world. Some od them focus on dispute with strong toe to
the country or region in which the institution is based;
some focus on dispute in particular subject matters; and
some are fully international in scope and are used parties
throughout the world.
New york Convention
 The convention on Recognition and enforcement of foreign
awards, 1958 also known as New york convention a
multilateral treaty for the enforcement of arbitral awards to
which more than 145v states are party.
 India became the party to the said Convention on 10th June
1958 and ratified the same on July 13, 1961
Arbitration Agreement
 It may be formed during the negotiation of a contract, or
after a legal dispute arises.
 The following are some examples of models clauses
recommended by the arbitration institution.
 1) UNCITRAL arbitration Rule

 2) ICC arbitrational Rules

 3) NAFTA Advisory committee on private commercial

disputes.
UNCITRAL arbitrational Rule
 They should add..

1. The appointing authority shall be…

2. the number of arbitrators shall be..

3. The place of Arbitration..

4. The language of arbitration …

ICC Arbitrational Rules
 All dispute araising in connection with the present contract
shall be finally settled under the laws of conciliation and
arbitration at the International chamber of commerce by
one more and the arbitrators appointed in accordance with
the said rules”
 parties should also designate the place of arbitration in the
clause otherwise , the ICC will decide
NAFTA Advisory Committee
 Any dispute controversy or claim arising out of, relating to,
or in connection with this contract, or the breach,
termination or validity there of shall be finally settled by
the arbitration.
 The clause includes..

 Place, language, members

Elements of arbitration
Agreement
 Scope of Arbitration

 Choice of Arbitrators

 Choice of aw

 Choice of Location

 Choice of language

 Choice of rules

 Interim relief

 Cost

 Award of tribunal
Enforcement of Arbitral Awards
 Court of Enforcement of Arbitral Awards

When entering in to the a international business contact

parties should have to consider whether the country
where they expect to enforce an award has a domestic
legal framework to enforce the award and whether the
country is a signatory to a treaty to obligates it to enforce
the judgment.
Rules for refusal to enforce
 According to the New York Convention ..

1. Incapacity if a party

2. Failure to give proper Notice to party, or the in ability of

a party to present his/her case.

3. The award fell outside the scope of the arbitration

agreement

4. The selected of the arbitrators violated the agreement

5. The award was set aside. Sovereignty issue of the State

Enforcement of foreign Arbitral
awards in India
 The united nations convention on the recognition and
enforcement of foreign arbitral awards also known as New
York convention has been ratified by India in 1961 prior to
that the enactment of the Arbitration and Conciliation act,
1966 the law annulment of domestic and enforcement of
foreign awards were governed by the Indian arbitration
Act, 1940
 The 1996 act was enacted by the Indian legislation
amending and consolidating the law in terms of
UNCITRAL model laws and rules.
Contd.,
 Part 1 of the acts Deals with the domestic arbitration

 Part II of the act deals with the enforcement of the foreign

awards
 Chapter 1 of this act deals with the New York Convention
awards.
 Section 46 of this act deals with when the foreign award
are binding
 Section 47 deals with the evidence that to be produced by
the parties for the enforcement of foreign arbitral awards
Contd..,
 Section 48 deals with the condition for enforcement of
foreign awards
 Section 49 deals with … if the court is satisfy with that
foreign award is enforceable under this chapter, the award
shall be deemed to be a decree of that court and the court
has to proceed further to execute the foreign awards.
Contd.,
 Section 48 of the act provides that enforcement of a foreign
award may be refuse, at the request of the party against
whom it Is invoked , only if that party furnishes to the
court proof about the existence of any one or more grounds
mention in clause.
 It can also refuse it
Contd.
 Under Article 1(3) of new york Convention ,a member State
when signing, ratifying or acceding to the convention or even
notifying extension under Article X is permitted to make two
reservation
 1) a Member State may declare that it will only recognize and
enforce awards made in another member state on the basis of
reciprocity
 It may also declare that if it will apply the provision of the new
york Convention for recognition and enforcement only if the
differences between the parties arise out of legal relationship
whether contractual or not which are considered commercially
the States making the declaration