Forgot your password?
Please enter your email & we will send your password to you:
Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
2. Date of entry into force of the New York Convention
11 October 1960.
(Sources: Foreign Awards (Recognition and Enforcement) Act, 1961 (Act 45 of 1961), as published in Gazette of India, 1961, Part II Extraordinary, Statement of Objects and Reasons, p. 219 & Preamble; see also <www.uncitral.org/uncitral/en/uncitral_texts/arbitration/ NYConventon_status.html>.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
Yes. India will apply the Convention only to recognition and enforcement of awards made in the territory of another Contracting State which has been notified by the Central Government as a reciprocating territory. For a foreign award in a foreign territory to be enforceable as a New York Convention award in India, that territory must be notified by the Central Government as a reciprocating territory separately through a notification in the Gazette of India. Signature of the New York Convention is not enough for such territory or country to qualify as a reciprocating territory.
The list of 'reciprocating territories' notified by the Government of India in the Gazette of India, for the purposes of s. 44 of the Arbitration and Conciliation Act 1996 ('1996 Act') comprises the following 46 States: Austria, Belgium, Botswana, Bulgaria, Central African Republic, Chile, Cuba, Czechoslovak Socialist Republic, Denmark, Ecuador, The Arab Republic of Egypt, Finland, France, German Democratic Republic, Federal Republic of Germany, Ghana, Greece, Hong Kong, Hungary, Italy, Republic of Ireland, Japan, Republic of Korea, Kuwait, Malagasy Republic, Malaysia, Mexico, Morocco, The Netherlands, Nigeria, Norway, Philippines, Poland, Romania, San Marino, Singapore, Spain, Sweden, Switzerland, Syrian Arab Republic, United Republic of Tanzania, Thailand, Trinidad and Tobago, Tunisia, UK, the United States of America and USSR.
(b) commercial relationships?
Yes. India will apply the Convention only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under the national law.
(Source: 1996 Act, s. 44.)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No. An award rendered in India pursuant to an international commercial arbitration held in India will be a domestic award for the purposes of the 1996 Act.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
The 1996 Act (Act 26 of 1996), Part II, entitled 'Enforcement of Certain Foreign Awards'. Chapters I & II thereof apply to 'New York Convention Awards' and 'Geneva Convention Awards' respectively. Certain states/state high courts have prescribed procedural rules in relation, inter alia, to enforcement of foreign awards. These include: (i) Andhra Pradesh Arbitration Rules, 2000 (Roc. No. 203/SO-1/2000, published in A.P. Gazette, R.S. to Part II (Ext.) dated 15 Dec. 2000; (ii) Rules of the High Court of Judicature at Bombay (No. 1614/1996); (iii) Himachal Pradesh Arbitration Rules, 2000 (Notification No. HHC/Rules-22 (29) 84 dated 25 May 2000 published in the Himachal Pradesh Rajpatra, Ext., dated 23 June 2000, with effect from 26 May 2000; (iv) Karnataka Arbitration Rules, 2001 (Notification No. RPS, 1/1999/HCLC, Bangalore dated 30 July 2001, published in Karnataka Gazette, dated 18 Oct. 2001); (v) High Court of Madhya Pradesh Arbitration Rules, 1997 (No. C-966-III-15-28-41 dated 25 Feb. 1997).
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The limitation period for recognition and enforcement of foreign awards in a 'court' is 3 years.
(Sources: Limitation Act, 1963 (Act 36 of 1963), Schedule, Art. 137; Noy Vallesina Engineering SPAA Corporation v. Jindal Drugs Limited, 2006 (3) Arb. LR 510 (Bombay High Court).)
The limitation period for making an application for recognition and enforcement of a foreign award would start to run from the date the right to apply for such recognition and enforcement accrues, i.e. date on which the foreign award in question becomes final and binding between the parties in the jurisdiction where it was made.
(Sources: Limitation Act, 1963 (Act 36 of 1963), Schedule, Art. 137. Noy Vallesina Engineering SPAA Corporation v. Jindal Drugs Limited, 2006 (3) Arb. LR 510 (Bombay High Court).)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The relevant civil court is the principal civil court of original jurisdiction in a district, including the high court which, in exercising ordinary original civil jurisdiction, would have jurisdiction over the subject matter if a suit had been brought, but not any lower civil court or court of small causes.
(Source: 1996 Act, explanation s. 47.)
Explanatory note: India is a republic comprising 28 states and 7 centrally administered territories/ union territories. Each state has its own courts comprising courts of first instance and courts of appeal, with final recourse to the Supreme Court of India in New Delhi.
(Sources: Constitution of India, 1950, Preamble; Arts. 245 and 246, read with Seventh Schedule; Part V, Ch. IV (Arts. 124-147); Part VI, Ch. V (Arts. 214-231) & Ch. VI (Arts. 233-237; Art. 51(c), Art. 73(1)(b), Art. 253 read with Entry 14 of List I of Seventh Schedule; see official website of Government of India/National Portal of India: www.india.gov.in/knowindia/states_uts.php.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
An action for recognition and enforcement of a foreign award has to be brought in a court that would have jurisdiction over the subject matter of the award in the event of a civil suit. Consequently, the relevant provisions of the Code of Civil Procedure, 1908 (Act 5 of 1908) dealing with 'execution of decrees' (ss. 36-74, read with Order XXI) would be applicable to the recognition and enforcement of a foreign award.
Accordingly, in order for a civil court in any state to have jurisdiction to entertain a petition for enforcement of a foreign award, the defendant should be domiciled or, if the award is for recovery of money, should have assets within the jurisdiction of that court.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
In India, the general practice is not to decide ex parte a petition seeking enforcement of a foreign award.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
No automatic right of appeal lies from a first decision granting recognition and enforcement of a foreign award. However, a special leave petition to the Supreme Court of India (seeking permission to appeal the first instance decision) can be filed against a first decision granting recognition & enforcement.
An appeal lies from a first decision rejecting recognition and enforcement of a foreign award.
(Sources: 1996 Act, s. 50 (1)(b); Fuerst Day Lawson Ltd v. Jindal Exports Ltd (2011) 8 SCC 333.)
(b) How many levels of appeal or recourse are available against this decision?
In the case of a first decision granting enforcement of a foreign award, only a special leave petition can be filed to the Supreme Court of India.
In the case of a first decision rejecting enforcement of a foreign award, effectively two levels of appeal are available: (i) an appeal under the 1996 Act and (ii) an appeal against the appellate order to the Supreme Court of India by way of a special leave petition (seeking permission to appeal the appellate decision).
(Sources: 1996 Act, s. 50(2); Constitution, Art. 136.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The judgment recognizing a foreign award may be executed against the assets immediately after the court order recognizing the foreign award is served on the judgment debtor. If enforcement is granted, it is possible for a court to grant ex parte execution, if certain conditions are satisfied (ordinarily the court is more likely not to grant ex parte execution). A party filing a special leave to appeal against the judgment may request the Supreme Court to stay execution of the judgment pending appeal. If the stay requested by the party wishing to appeal is granted, execution is suspended until the appeal is disposed of or the stay granted by the court is vacated. As a condition for such stay, the court would ordinarily order that part of the sum due under the award (usually 50% of the amount due under the foreign award) be deposited.
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The person/entity applying for recognition and enforcement of a foreign award must supply the court with: (i) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made; (ii) the original arbitration agreement or a duly certified copy thereof; (iii) other evidence as may be necessary to prove that the award is a foreign award; (iv) a certified copy of the English translation of the arbitral award and the arbitration agreement (if applicable).
(Source: 1996 Act, s. 47(1).)
The Delhi High Court in its recent decision in Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain (India) Co., C.S. (O.S.) 541 of 1998 held that the above-mentioned documents shall form prima facie evidence to prove that the award is a genuine foreign award, and that the applicant who is applying for enforcement of a foreign award is not required to produce any further evidence. (See also CETACO SA v. Bombay Export International, 2000 (3) Arb. LR 69 (Bom).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The arbitral award for which recognition and enforcement is sought must be provided in its entirety. The contract containing the arbitration agreement should be provided in full as a matter of practical convenience, although a strict reading of the relevant section requires only the arbitration agreement to be produced in full.
(c) Are originals or duly certified copies required?
Authenticated originals or duly certified copies are admissible.
(d) How many originals or duly certified copies are required?
The court requires only one duly authenticated original or duly certified copy of each of the award and the arbitration agreement. Other copies of these documents, e.g. for the court record or for service upon counsel for the judgment debtor, may be duly certified by counsel for the applicant/petitioner.
(e) Does the authority or court keep the originals that are filed?
(a) Is it necessary to provide a translation of the documents supplied?
Yes, if the award and arbitration agreement are not in English.
(Source: 1996 Act, s. 47(2).)
(b) If yes, into what language?
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes. The translation must be duly certified as correct by a diplomatic or consular agent of the country to which the party seeking recognition and enforcement belongs, or certified as correct in such other manner as may be sufficient according to the law in force in India.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
A full translation must be provided.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
(Source: 1996 Act, s. 48(3).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
No other grounds are specified in the 1996 Act.
(Source: 1996 Act, s. 48.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, the court may, on the application of the party claiming enforcement of the award, order the other party to furnish suitable security.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Yes. A motion can be brought seeking an order of the court to preserve the confidentiality of documents. However, Indian courts are generally averse to granting such orders.
(Source: Indian Evidence Act, 1872 (Act 1 of 1872), s. 74(1).)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
No. However, if thought fit, the presiding judge may, at any stage of an inquiry into or trial of any particular case, order that the public generally, or any particular person, shall not have access to or remain in the room or building used by the court.
(Sources: Code of Civil Procedure, 1908, s. 153B; Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., AIR 1967 SC 1 (9-Judge Bench); Narottamdas v. State of Gujarat, 1971 GLR 894.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
(Sources: Code of Civil Procedure, 1908, Order XX, Rule 1(1); Indian Evidence Act, 1872 (Act 1 of 1872), s. 74(1).)
A motion can be brought seeking an order of the court to preserve the confidentiality of any information in the court record. However, Indian courts are generally averse to granting such orders.
(Sources: Indian Official Secrets Act, 1923 (Act 19 of 1923), s. 14; Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., AIR 1967 SC 1 (9-Judge Bench); Narottamdas v. State of Gujarat, 1971 GLR 894).)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
So long as an interim or partial award is enforceable according to the law under which it was made, it may be enforced in India like any final foreign award. Additionally, s. 2(1)(c) of the 1996 Act defines an 'arbitral award' as including an interim award. Although this section is in Part I of the 1996 Act, which deals with 'domestic awards', the same is applicable to 'foreign awards', so the definition of a 'foreign award' in s. 44 would also include an 'interim award'. This was the position of the Supreme Court of India in Bhatia International v. Bulk Trading S.A. and Anr., (2002) 4 SCC 105, where it was held that the 1996 Act is one consolidated and integrated Act, that general provisions applicable to all arbitrations are not repeated in all Chapters and Parts, and that the same applies to all Chapters and Parts unless the Act expressly states that this is not so or, in respect of a matter, there is a separate provision in a separate Chapter or Part. S. 44 does not specify that the definition of 'foreign award' contained therein does not include an 'interim award', so it would also include an 'interim award'. However, although the decision of the Supreme Court in Bhatia International has been overruled in Bharat Aluminium Co. v. Kaiser Aluminum Technical Services Inc. (2012) 9 SCC 552, the overruling is prospective only and hence applies to arbitration agreements entered into after 6 Sept. 2012. Interim and partial awards should, in principle, be equally enforceable as 'foreign awards' provided the conditions of s. 44 of the Act are otherwise satisfied.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. an order requiring a party to deliver up share certificates or other property)?
A party can obtain recognition and enforcement of non-monetary relief in foreign awards so long as the relief can be granted through arbitration under the substantive law applicable to the arbitration agreement and that the award was made pursuant to an arbitration agreement in a commercial relationship. Enforceable non-monetary relief includes: (i) decree for specific performance for the transfer or delivery of movable property including shares; (ii) decree for execution of a document or endorsement of a negotiable instrument; (iii) decree for recovery or delivery of immovable property; (iv) declaratory relief.
(Source: Code of Civil Procedure, 1908, Order XXI, rr. 31, 34 and 35.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
The 1996 Act does not specify whether a party can obtain recognition and enforcement of only part of the relief granted in a foreign award. However, where part of a foreign award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or the award contains decisions on matters beyond the scope of the agreement, and such irregular provisions can be severed from the remainder of the foreign award, then the court may recognize and enforce only the remainder of the award.
(Source: 1996 Act, s. 48 (1)(c).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
A foreign award which has been set aside by a competent authority of the country in which or under the laws of which it was made cannot be recognized and enforced by the courts in India, and enforcement of such an award may be refused, at the request of the party against whom it is invoked, if that party furnishes to the court sufficient proof in this regard. Although the statute uses the phrase 'may be refused', drawn from the New York Convention, Indian courts are in practice more likely to hold that no award remains in existence to be enforced (although this may not be the correct view). The issue has not so far been considered by the courts.
(Source: 1996 Act, s. 48 (1)(e).)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
The party seeking recognition and enforcement of a foreign award may have to pay court fees in accordance with the relevant provisions of the Court Fees Act, as applicable in the state where enforcement and execution are sought. Court fees vary from state to state depending on the amount of monetary relief sought and are usually ad valorem ranging from 1% to 10% and sometimes more. It is possible, although would not seem to be a requirement under the Indian Stamp Act and state amendments thereto, that some states would impose a stamp duty at the applicable rate when the award is brought into that state. The issue does not appear to have yet been raised in or decided by the Supreme Court of India. The rate of stamp duty varies: in some states it is nominal while in others it is ad valorem ranging from 0.1% to 2-3%.