Arbitration
& Conciliation Act, 1996
PART II: ENFORCEMENT
OF CERTAIN FOREIGN AWARDS
CHAPTER I: NEW YORK CONVENTION AWARDS
44. Definition
In this
chapter, unless the context otherwise requires, "foreign award"
means 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 l 1th day of October,
1960,-
(a)
in pursuance of an agreement in writing for arbitration to which the Convention
set forth in First Schedule applies, and
(b)
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.
45. Power of judicial authority to refer parties to arbitration
Notwithstanding
anything contained in Part I or in the Code of Civil Procedure, 1908,
a judicial authority, when seized of an action in a matter in respect
of which the parties have made an agreement referred to in section 44,
shall, at the request of one of the parties or any person claiming through
or under him, refer the parties to arbitration, unless it finds that the
said agreement is null and void, inoperative or incapable of being performed.
46. When foreign award binding
Any
foreign award which would be enforceable under this chapter shall be treated
as binding for all purposes on the persons as between whom it was made,
and may accordingly be relied on by any of those persons by way of defence,
set off or otherwise in any legal proceedings in India and any references
in this chapter to enforcing a foreign award shall be construed as including
references to relying on an award.
47. Evidence
(1)
The party applying for the enforcement of a foreign award shall, at the
time of the application, produce before the court,-
(a)
the original award or a copy thereof, duly authenticated in the manner
required by the law of the country in which it was made;
(b)
the original agreement for arbitration or a duly certified copy thereof;
and
(c)
such evidence as may be necessary to prove that the award is a foreign
award.
(2)
If the award or agreement to be produced under sub-section (1) in a foreign
language, the party seeking to enforce the award shall produce a translation
into English certified as correct by a diplomatic or consular agent of
the country to which that party belongs or certified as correct in such
other manner as may be sufficient according to the law in force in India.
Explanation:
In this section and all the following sections of this chapter "court"
means the principal civil court of original jurisdiction in a district,
and includes the High Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction over the subject-matter of the award
if the same had been the subject-matter of a suit, but does not include
any civil court of a grade inferior to such principal civil court, or
any court of small causes.
48. Conditions for enforcement of foreign awards
(1)
Enforcement of a foreign award may be refused, at the request of the party
against whom it is invoked, only if that party furnishes to the court
proof that,-
(a)
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
(b)
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
(c)
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
(d)
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
(e)
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.
(2)
Enforcement of an arbitral award may also be refused if the court finds
that,-
(a)
the subject-matter of the difference is not capable of settlement by arbitration
under the law of India; or
(b)
the enforcement of the award would be contrary to the public policy of
India.
Explanation:
Without prejudice to the generality of clause (b) of this section, it
is hereby declared, for the avoidance of any doubt, that an award is in
conflict with the public policy of India if the making of the award was
induced or effected by fraud or corruption.
(3)
If an application for the setting aside or suspension of the award has
been made to a competent authority referred to in clause (e) of sub-section
(1) the court may, if it considers it proper, adjourn the decision on
the enforcement of the award and may also, on the application of the party
claiming enforcement of the award, order the other party to give suitable
security.
49. Enforcement of foreign awards
Where
the court is satisfied that the foreign award is enforceable under this
chapter, the award shall be deemed to be a decree of that court.
50. Appealable orders
(1)
An appeal shall lie from the order refusing to,-
(a)
refer the parties to arbitration under section 45;
(b)
enforce a foreign award under section 48;
to the
court authorised by law to hear appeals from such order.
(2)
No second appeal shall lie from an order passed in appeal under this section,
but nothing in this section shall affect or take away any right to appeal
to the Supreme Court.
51. Saving
Nothing
in this chapter shall prejudice any rights which any person would have
had of enforcing in India of any award or of availing himself in India
of any award if this chapter had not been enacted.
52. Chapter II not to apply
Chapter
II of this Part shall not apply in relation to foreign awards to which
this chapter applies. |
