What do you mean by the term 'foreign award' ? State the grounds upon which the enforcement of the foreign award may be opposed in India.

CS Executive · Economic and Commercial Laws · PYQS · December 2019
What do you mean by the term 'foreign award' ? State the grounds upon which the enforcement of the foreign award may be opposed in India.

Answer & Explanation:

Meaning of 'Foreign Award': Sections 44 and 53 of the Arbitration and Conciliation Act, 1996, define 'foreign award' to mean an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered commercial under the law in force in India. Specifically: In the case of New York Convention awards, it refers to awards made on or after the 11th day of October 1960. In the case of Geneva Convention awards, it refers to awards made after the 28th day of July 1924. These awards are typically made in a country which is a signatory to either the New York Convention or the Geneva Convention, and which the Central Government has declared to be a reciprocating territory. Grounds upon which the enforcement of the foreign award may be opposed in India (Section 48 of the Arbitration and Conciliation Act, 1996): Enforcement of a foreign award may be opposed in India if the party against whom it is invoked furnishes to the court proof that: 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. 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. 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 matter 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. 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. 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. Enforcement may also be refused if the court finds that: The subject-matter of the difference is not capable of settlement by arbitration under the law of India. The enforcement of the award would be contrary to the public policy of India. For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if: The making of the award was induced or affected by fraud or corruption. It is in violation of section 75 or section 81 of the Act. It is in contravention with the fundamental policy of Indian law or is in conflict with the most basic notions of morality or justice.

Topics: Arbitration and Conciliation Act

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