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ICC Guide to National Procedures for

Recognition and Enforcement of Awards
under the New York Convention

This document is part of the ICC Dispute Resolution Library (https://jusmundi.com/en/icc-

dispute-resolution-library).
Publisher:

Type: ICC Enforcement Guide

Publication Date: 2019

Language: English

Summary

This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the
New York Conven...

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Authors
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Ritin Rai (/en/jus-ai)
(https://jusconnect.com/en/p/ritin-rai)

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en/)
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EN (/en/document/publication/pdf/en-india-9)

New York For more case law on the implementation of the New York Convention, see the online
convention platform newyorkconvention1958.org for India (https://newyorkconvention1958.org/
partner index.php?lvl=cmspage&pageid=11&menu=581&opac_view=-1).

A. THE CONTRACTING STATE AND THE NEW YORK CONVENTION

B. NATIONAL SOURCES OF LAW
C. LIMITATION PERIODS (TIME LIMITS)
D. NATIONAL COURTS AND COURT PROCEEDINGS
E. EVIDENCE REQUIRED
F. STAY OF ENFORCEMENT
G. CONFIDENTIALITY
H. OTHER ISSUES

India

A. The Contracting State and the New York

Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

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India.
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2. Date of entry into force of the New York Convention
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11 October 1960.

(Source: Foreign Awards (Recognition and Enforcement) Act, 1961 (Act 45/1961),
(/(/ Products
 EN
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as published in Gazette of India, 1961, Part II Extraordinary, Statement of
en/)
en/) Objects and Reasons, p. 219 & Preamble.)

3. Has any reservation been made under Art. I(3) of the New York
Convention regarding:

reciprocity?

Yes. India applies 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 Sect. 44 of the Arbitration and Conciliation
Act 1996 (‘1996 Act’) comprises the following 48 States: Australia; Austria;
Belgium; Botswana; Bulgaria; Central African Republic; Canada, Chile; China
(including Hong Kong and Macau) Cuba; Czechoslovak Socialist Republic;
Denmark; Ecuador; Federal Republic of Germany; Finland; France; German
Democratic Republic; Ghana; Greece; Hungary; Italy; Japan; Kuwait; Mauritius,
Malagasy Republic; Malaysia; Mexico; Morocco; Nigeria; Norway; Philippines;
Poland; Republic of Korea; Romania; Russia; San Marino; Singapore; Spain;
Sweden; Switzerland; Syrian Arab Republic; Thailand; The Arab Republic of
Egypt; The Netherlands; Trinidad and Tobago; Tunisia; United Kingdom; United
Republic of Tanzania and United States of America.

commercial relationships?

Yes. India applies the Convention only to differences arising out of legal
relationships, whether contractual or not, that are considered commercial
under Indian law.

(Source: 1996 Act, Sect. 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

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enforcement are sought. Are there any awards rendered in your country
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not workflow to as
considered deliver exceptional
domestic awardsclient
suchoutcomes
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York
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Convention and the answers to this Questionnaire are applicable to them?

No.

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en/)
en/)
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 26/1996), Part II, entitled ‘Enforcement of Certain Foreign
Awards’. Chapters I & II thereof apply to ‘New York Convention Awards’ and
‘Geneva Convention Awards’ respectively.

Certain high courts which exercise jurisdiction over a state have prescribed
procedural rules in relation to, inter alia, enforcement of foreign awards. These
include:

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;

Rules of the High Court of Judicature at Bombay (No. 1614/1996);

Chhattisgarh Arbitration Rules, 2007;

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;

Karnataka Arbitration Rules, 2001 (Notification No. RPS, 1/1999/HCLC, Bangalore

dated 30 July 2001, published in Karnataka Gazette, dated 18 Oct. 2001);

High Court of Madhya Pradesh Arbitration Rules, 1997 (No. C-966-III-15-28-41

dated 25 Feb. 1997); and

Kerala Arbitration and Conciliation (Court) Rules, 1997.

C. Limitation periods (time limits)

6.(a)Is there a limitation period (time limit) applicable to the

commencement of legal proceedings for recognition and enforcement of
foreign awards?

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Yes.
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(b)If yes, what is the applicable limitation period (time limit) and when
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does it start running?

The limitation period for making an application for recognition and

(/(/ Products ENof a foreign
 Solutions
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award About
would start EN - Change
to run Language
from the date the rightLog
to in BOOK A DE

en/)
en/) apply for such recognition and enforcement accrues, i.e. date on which the
foreign awa rd in question becomes final and binding between the parties in the
jurisdiction where it was made.

The 1996 Act does not prescribe any limitation period for the commencement of
legal proceedings for recognition and enforcement of foreign awards. There is a
no decision of the Supreme Court of India and a divergence of opinion among
State High Courts on the limitation period that will apply. The High Court of
Judicature at Bombay, applying Art. 137 of the Schedule to the Limitation Act,
1963, has held that the limitation period for recognition and enforcement of
foreign awards is three years. The High Court of Madras, treating the foreign
award as a decree and therefore applying Art. 136 of the same Act has held that
the limitation period for recognition and enforcement of foreign awards is 12
years.

(Source: Limitation Act, 1963 (Act 36/1963), Schedule, Art. 136 and 137; Noy
Vallesina Engineering SPAA Corporation v. Jindal Drugs Limited (Bombay High
Court; 2006 (3) Arb. LR 510); Compania Naviera v. Bharat Refineries (Madras
High Court; AIR 2007 Mad 251).)

D. National courts and court proceedings

7.What authority or court has jurisdiction over recognition and

enforcement of foreign awards?

High Courts in the respective states have jurisdiction over recognition and
enforcement of foreign awards.

(Source: 1996 Act, Sect. 47.)

Explanatory note: India is a republic comprising 29 states and 7 centrally

administered territories/ union territories. There are 24 High Courts at the state
and union territory level in India. Each High Court has jurisdiction over a state,
a union territory or a group of states and union territories.

(Source: 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

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of Seventh Schedule;)
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8.What requirements, if any, must be met for the authority or court to
Learn more (/en/jus-ai)
accept jurisdiction over recognition and enforcement of foreign awards
(e.g. domicile or assets of respondent in the jurisdiction, etc.)?

(/(/ Products
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and enforcement of EN - Change
a foreign Language
award Log in
has to be brought BOOK A DE

en/)
en/) in the High Court that would have original or appellate jurisdiction over the
subject matter of the award if the same had been the subject matter of a suit.

The relevant provisions of the Code of Civil Procedure, 1908 (Act 5/1908) dealing
with ‘Execution of Decrees’ (Sect. 36–74, read with Order XXI) would therefore
be applicable to the recognition and enforcement of a foreign award. The High
Court with jurisdiction over the territory where the defendant is domiciled (or if
the award is for recovery of money, where the assets of the defendant are
situated) will have jurisdiction.

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.

10.(a)Is the first decision granting or denying recognition and enforcement

subject to any form of appeal or recourse?

No statutory 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) is available as a remedy
against a first decision granting recognition and enforcement.

A statutory appeal lies from a first decision rejecting recognition and

enforcement of a foreign award.

(Source: 1996 Act, Sect. 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 in the Supreme Court of India.

In the case of a first decision rejecting enforcement of a foreign award, two

levels of recourse are available: (i) a statutory appeal under the 1996 Act, and (ii)
a special leave petition (seeking permission to appeal) against the appellate
order to the Supreme Court of India.

(Source: 1996 Act, Sect. 50(2); Constitution, Art. 136.)

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11.What is the earliest stage in legal proceedings for enforcement of foreign

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actually obtains possession of assets as opposed to simply freezing
assets)?

The judgment recognizing a foreign award may be executed against the assets
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immediately after the court order recognizing the foreign award is served on
en/)
en/) 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 decision granting

enforcement of a foreign award may request the Supreme Court of India to stay
the decision pending appeal. If the stay requested by the party that has filed the
special leave petition is granted, the court usually imposes a condition requiring
the party to deposit in court or to pay to the successful party a percentage of the
sum due under the award.

E. Evidence required

12.(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 party applying for recognition and enforcement of a foreign award must
supply the court with:

the original award or a copy thereof, duly authenticated in the manner required
by the law of the country in which it was made;

the original arbitration agreement or a duly certified copy thereof;

such evidence as may be necessary to prove that the award is a foreign award;
and

a certified copy of the English translation of the arbitral award and the
arbitration agreement (if applicable).

(Source: 1996 Act, Sect. 47(1))

(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

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reading of the relevant section requires only the arbitration agreement to be

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produced.
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(Source: 1996 Act, Sect. 47(1))

(c)Are originals or duly certified copies required?

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Authenticated originals or duly certified copies are admissible.
en/)
en/)
(Source: 1996 Act, Sect. 47(1))

(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 legal counsel.

(e)Does the authority or court keep the originals that are filed?

Yes.

13.(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, Sect. 47(2))

(b)If yes, into what language?

English.

(Source: 1996 Act, Sect. 47(2))

(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.

(Source: 1996 Act, Sect. 47(2); Notaries Act 1952)

(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.

(Source: 1996 Act, Sect. 47(2))

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F. Stay of enforcement
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14.(a)Can the authority or court stay legal proceedings for recognition and
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enforcement pending the outcome of an application to set aside or suspend
en/)
en/)
the foreign award before the competent authority referred to in Art. V(1)(e)
of the New York Convention?

Yes.

(Source: 1996 Act, Sect. 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, Sect. 48.)

(c)Is the granting of a stay of legal proceedings for recognition and

enforcement conditional on the provision of security?

The court may, on the application of the party claiming enforcement of the
award, order the party resisting enforcement to furnish suitable security.

(Source: 1996 Act, Sect. 48(3).)

G. Confidentiality

15.(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 typically do not grant such
orders.

(Source: Indian Evidence Act, 1872 (Act 1/1872).)

(b)If there are hearings on recognition and enforcement, are such hearings
confidential? If not, can steps be taken to maintain the confidentiality of

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the legal proceedings?

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No. However, if thought fit, the presiding judge may, at any stage of an inquiry
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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.
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en/)
en/) (Source: Code of Civil Procedure, 1908, Sect. 153B; Naresh Shridhar Mirajkar and
Ors. v. State of Maharashtra and Anr., AIR 1967 SC 1.)

(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)?

Yes.

(Source: Code of Civil Procedure, 1908, Order XX, Rule 1(1); Indian Evidence Act,
1872 (Act 1/1872), Sect. 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
typically do not grant such orders.

(Source: Indian Official Secrets Act, 1923 (Act 19 of 1923), Sect. 14; Naresh
Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., AIR 1967 SC 1.)

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 as an award according to

the law under which it was made, it may be enforced in India like any final
foreign award.

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

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for recovery or delivery of immovable property; or (iv) declaratory relief.

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(Source: Code of Civil Procedure, 1908, Order XXI, Rules 31, 34, 35.)
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18.When, if ever, can a party obtain recognition and enforcement of only
part of the relief granted in foreign awards?
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The 1996 Act does not specify whether a party can obtain recognition and
en/)
en/) 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, Sect. 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 1996 Act 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.

(Source: 1996 Act, Sect. 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 typically ranging from 1% to 10%.

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

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issue does not appear to have yet been raised in or decided by the Supreme
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while
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in others it is ad valorem ranging from 0.1% to 2-3%.

Country Rapporteur: Ritin Rai

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