Name: Sushovan Choudhury
PRN: 16010224009
Group: A
Answer 1. Enforcement under the New York Convention
Sections 44 to 52 of the Arbitration and Conciliation (Amendment) Act, 2015 deals with foreign
awards passed under the New York Convention.
The New York Convention defines “foreign award” as an arbitral award on differences between
persons arising out of legal relationships, whether contractual or not, considered as commercial
under the law in force in India, made on or after the 11th day of October, 1960-
In pursuance of an agreement in writing for arbitration to which the Convention set
forth in the First Schedule applies, and
In one of such territories as the Central Government, being satisfied that reciprocal
provisions have been made may, by notification in the Official Gazette, declare to be
territories to which the said Convention applies.[1]
From the abovementioned conditions, it is clear that there are two pre-requisites for
enforcement of foreign awards under the New York Convention. These are:
The country must be a signatory to the New York Convention.
The award shall be made in the territory of another contracting state which is a
reciprocating territory and notified as such by the Central Government.
Section 47 provides that the party applying for the enforcement of a foreign award shall, at the
time of the application, produce before the court (a) original award or a duly authenticated
copy thereof; (b) original arbitration agreement or a duly certified copy thereof; and (c) any
evidence required to establish that the award is a foreign award. As per the new Act, the
application for enforcement of a foreign award will now only lie to High Court.
Once an application for enforcement of a foreign award is made, the other party has the
opportunity to file an objection against enforcement on the grounds recognized under Section
48 of the Act. These grounds include:
1. the parties to the agreement referred to in section 44 were, under the law applicable
to them, under some incapacity, or the said agreement is not valid under the law to
which the parties have subjected it or, failing any indication thereon, under the law of
the country where the award was made; or
2. the party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitral proceedings or was otherwise unable
to present his case; or
3. the award deals with a difference not contemplated by or not falling within the terms
of the submission to arbitration, or it contains decisions on matters beyond the scope
of the submission to arbitration: Provided that, if the decisions on matters submitted
to arbitration can be separated from those not so submitted, that part of the award
which contains decisions on matters submitted to arbitration may be enforced; or
4. the composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place; or
5. the award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of
which, that award was made.
6. the subject-matter of the difference is not capable of settlement by arbitration under
the law of India; or
7. the enforcement of the award would be contrary to the public policy of India.
Answer 2. The central objective of the New York Convention is to facilitate enforcement of
foreign arbitral awards by subjecting the enforcement to a limited number of conditions. Under
Article V of the Convention, the grounds for refusal to enforce an arbitral award are restricted
to a narrow list of defects affecting the arbitral procedure or the award. As analysed in detail in
the following two sections, these defects must be of a serious nature and include irregularities
such as invalidity of the arbitration agreement, lack of due process or violation of public policy
of the enforcement state.
The grounds for refusal to enforce an arbitral award under the UNCITRAL Model Law parallel
those enacted in the New York Convention. Article 36 of the UNCITRAL Model Law is virtually
identical to Article V of the Convention and subjects the enforcement to the exceptions
grounded in the Convention. Three fundamental features of the framework concerned must be
identified: (1) exhaustive list of exceptions to enforcement excluding review of the merits of the
award; (2) discretion to enforce an award notwithstanding the grounds to refuse enforcement;
and (3) preclusion of parties’ objections.
With regard to the feature in point (1), above, Article V of the New York Convention (replicated
in Article 36 of the UNCITRAL Model Law) provides for an exhaustive list of the objections to
enforcement. Under this framework, the recognition and enforcement of the award may be
refused ‘only if ’ one of the exceptions applies. Accordingly, a party resisting enforcement
cannot successfully bring a defence that is not grounded in the provisions of the New York
Convention. In particular, no review of the merits of the award is allowed, and national law
cannot be the basis of any such defence against enforcement. The list of possible grounds on
which the party may resist enforcement is narrow and allows only for most serious irregularities
to form the basis of the party’s defence. The exclusive character of the exceptions to
enforcement means that Article V of the New York Convention must be interpreted narrowly.
Turning to the second feature, both Article V of the New York Convention and Article 36 of the
UNCITRAL Model Law are drafted in a permissive, rather than mandatory fashion. The
provisions in question state that enforcement ‘may be’ (rather than ‘shall be’) refused on one of
the specified grounds. Consistent with the pro-enforcement policy of the New York Convention,
nothing in that act requires a contracting state to deny enforcement of the award. Instead, the
court may overrule the defence to enforcement and give effect to the award, even if one of the
objections in Article V of the New York Convention has been established. This notion of the
enforcing court’s autonomy has far-reaching consequences. It allows the enforcing court to
independently assess potential defects of the arbitral award and procedure and, in appropriate
circumstances, enforce even those awards that were annulled at the seat.
The third feature of the enforcement framework in question is preclusion of objections to
enforcement of the award. In accordance with this principle, a party is barred from invoking
Article V defences in the enforcement court, if it failed to bring the relevant objection during
the arbitration or before the courts of the arbitral seat. Although the rules governing preclusion
are not expressly included in the text of the New York Convention, they are widely recognised
in national arbitration laws and considered compatible with the spirit of the Convention. The
rules governing preclusion affect almost every ground specified in Article V of the Convention,
most notably, jurisdiction objections are typically required to be raised at the outset of arbitral
proceedings. Generally, preclusion may extend to both the objections that should have been
raised in arbitration, and the objections that must be first exercised in the foreign state’s court
proceedings (e.g., for setting aside the award). However, the position on this issue is not
consistent in jurisdictions. Under the English authority in Dallah Real Estate and Tourism
Holding Company v. The Ministry of Religious Affairs, Government of Pakistan, a party is not
precluded from relying on a given defence in the enforcement proceedings even if it failed to
bring the same defence in an action to set aside the award at the seat. A different conclusion
has been reached in other jurisdictions, where the courts held that a party who failed to bring
certain defects by way of an action to set aside an award may not rely on the same defects in
the enforcement procedure.
