Apr 2023

India

Law Over Borders Comparative Guide:

Arbitration

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1 . Key considerations in deciding whether to arbitrate in this jurisdiction

Over the last decade, the arbitration regime has been overhauled, with three amendments to the Arbitration and Conciliation Act, 1996 (A&C Act), and Indian courts adopting a pro-arbitration bias. The Indian Government has given a big push to institutional arbitration. There is limited interference by courts in the arbitral process and while considering applications to set aside awards. Indeed, courts also have a pro-enforcement bias towards upholding and enforcing awards – the biggest challenge being the delays caused by an overburdened judiciary. With these reforms, India is primed to compete at par with other sophisticated arbitration jurisdictions globally.

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1.1. Advantages

  • India benefits from 140-years of common law tradition, with extensive jurisprudence developed over time, and a legal fraternity familiar with the common law practice.
  • The A&C Act is based on the UNCITRAL Model Law and India is a signatory to the New York Convention. The arbitration law and practice is thus generally in line with international standards and practice, and respects party autonomy. Parties have the freedom and flexibility to broadly decide the form and contents of their arbitration agreement, the law governing the underlying contract and the arbitration agreement, and the seat of arbitration.
  • Indian courts, particularly in more commercial centres such as Delhi, Mumbai and Bangalore, are increasingly pro-arbitration and will attempt to uphold an arbitration clause and arbitral awards. Adverse intervention by courts is only seen in rare cases.
  • Interim relief and protective orders in aid of the arbitration can be obtained swiftly from Indian courts - even on an ex parte basis and against third parties. 
  • Arbitrating in India is fairly cost-efficient in comparison to other popular jurisdictions.
  • Applications for stay of enforcement of domestic awards are permitted only upon deposit of the award amount in court.
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1.2. Disadvantages and common pitfalls

  • The biggest disadvantage is the delays in the Indian court system. It can take up to two years to hear substantive applications such as for setting aside or enforcement of awards.
  • The ad hoc arbitration process that is common to Indian arbitration, particularly with public sector undertakings, can be a cumbersome and inefficient process.
  • Judgments of High Courts are not binding on each other and accordingly there can be conflicting jurisprudence on a point of law, which is only ultimately settled by the Supreme Court, whose decisions are binding on all courts and tribunals in the country.
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1.3. Other distinctive features

In 2021, a new provision was inserted in the A&C Act, to the effect that where the court is satisfied that a prima facie case is made out that: 

  • the arbitration agreement or contract which is the basis of the award; or
  • the making of the award;

was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge to the award under section 34. This amendment is retrospective, applying to all arbitration proceedings, whether before or after the 2015 amendments. 

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2 . Principal laws and institutions relating to international arbitration in this jurisdiction

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2.1. Legal framework

The primary legislation governing arbitration in India is the A&C Act. Additionally, India is party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the Convention on the Execution of Foreign Arbitral Awards (Geneva Convention). 

Pursuant to the Commercial Courts Act, 2015, the relevant Commercial Divisions/Commercial Courts have jurisdiction over arbitration proceedings in which the amount in dispute is over INR 300,000. All applications in relation to international commercial arbitrations are taken up by the commercial division of the relevant High Court that has territorial jurisdiction over the matter.

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2.2. What qualifies as international arbitration?

Under the A&C Act, an “international commercial arbitration” is defined as an arbitration that relates to disputes of a commercial nature, arising out of legal relationships, where at least one of the parties is: 

  • an individual who is a national of, or is habitually resident in a country other than India; 
  • a body corporate incorporated in a country other than India;
  • an association or body of individuals whose central management and control is exercised in any country other than India; or 
  • the government of a foreign country.

If an international commercial arbitration has its seat in India, it is governed by Part I of the A&C Act. Arbitrations with a foreign seat and enforcement of foreign awards are governed by Part II thereof.

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2.3. Main local international arbitration institutions

There are several arbitration institutions in India, including the Indian Council of Arbitration (ICA), Mumbai Centre for International Arbitration (MCIA), Delhi International Arbitration Centre (DIAC), International Arbitration and Mediation Centre (IAMC), which follow internationally recognised practices and have robust rules of procedure for administration of arbitration proceedings.

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3 . Arbitration agreements

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3.1. Requirements as to content and form

Section 7 of the A&C Act defines an “arbitration agreement” as an agreement by the parties to submit to arbitration all or certain disputes which have arisen, or which may arise, between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement is required to be in writing, although it may be in the form of an arbitration clause in a contract, a separate agreement altogether, or even by way of reference in a contract to a document containing an arbitration clause such as to make that arbitration clause part of the contract. 

An arbitration agreement is in writing if it is contained in:

  • a document signed by the parties; 
  • an exchange of letters, telex, telegrams, or other means of telecommunications, including communication through electronic means, that records the agreement; or 
  • an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
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3.2. Validity of arbitration agreements

A document which satisfies the conditions of section 7 of the A&C Act (as set out above in Section 3.1), is considered a valid arbitration agreement.

Based on the kompetenz-kompetenz principle, the arbitral tribunal has the power to determine questions as to validity of arbitration agreements. A court, while deciding applications to appoint arbitrators, to refer parties to arbitration, or for interim reliefs, will consider the existence and validity of the arbitration agreement only on a prima facie basis. 

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3.3. Special formalities

There are no special formalities in relation to arbitration agreements under Indian law.

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3.4. Governing law

Where an arbitration is seated in India, and between Indian parties, then under section 28, the dispute must be decided in accordance with Indian law. In an international commercial arbitration, the parties may choose a foreign substantive law.

Unless otherwise agreed, the substantive law governing the main contract will be deemed to be the law governing the arbitration agreement.

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4 . Arbitrability

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4.1. Applicable restrictions

The A&C Act recognizes that certain disputes may not be arbitrable, stating in section 2(3), that “[t]his Part (Part I), shall not affect any other law for the time being in force by virtue of which, certain disputes may not be submitted to arbitration”, and that an award may be set aside under section 34(2)(b)(i) if, “the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force.” 

The issue of arbitrability is determined on the basis of legislative intent and judicial decisions. As a general rule, cases involving rights in personam (private rights affecting specific persons), are arbitrable, while disputes concerning rights in rem (in relation to property and/or available against the world at large) or which have some manner of public interest underlying them are not arbitrable (Booz Allen Hamilton v. SBI Home Finance Ltd. AIR 2011 SC 2507). 

For instance, a dispute concerning the existence, validity or ownership of a copyright (a right in rem), would not be arbitrable. Whereas, a dispute concerning the right to receive fees in exchange for licensing the use of intellectual property under a copyright license agreement, (a right in personam) would be arbitrable. 

Generally, the following disputes are non-arbitrable: criminal matters, matrimonial disputes, tenancy matters, testamentary matters, insolvency matters, guardianship disputes, disputes concerning serious allegations of fraud, disputes concerning oppression, mismanagement and/or winding up of companies, disputes concerning intellectual property rights that concern rights in rem, disputes arising out of trust deeds. 

Moreover, certain statutes provide for disputes or claims being decided by specially set up courts or tribunals, which courts/tribunals would be deemed to have exclusive jurisdiction over certain subject matters. For instance, the Companies Act, 2013 confers exclusive jurisdiction over the National Company Law Tribunal to adjudicate all company related disputes including those concerning oppression and mismanagement as well as insolvency – which cannot be referred to arbitration. 

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5 . Enforcing arbitration agreements

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5.1. Stay of proceedings

The principle of kompetenz-kompetenz is recognised in India insofar as the arbitral tribunal is empowered to rule on its own jurisdiction, including on the validity of the arbitration agreement. As such, courts in India will generally refuse to stay arbitral proceedings, unless in exceptional circumstances, such as where the subject matter is non-arbitrable (Bina Modi v. Lalit Modi, 2020 SCC Online Del 1678).

In Balasore Alloys Limited v. Medima LLC [2020 SCC Online Cal 1699], the Calcutta High Court held that, though Indian courts may grant anti-arbitration injunctions, they must do so sparingly and only in exceptional cases. The Calcutta High Court in Balasore Alloys (supra) relied on Modi Entertainment Network v. WSG Cricket Pte Ltd. [(2003) 4 SCC 341] which set out the following circumstances in which anti-suit injunctions may be granted, and extended the same to the conditions for grant of anti-arbitration injunctions:

  • the defendant is subject to the jurisdiction of the court; 
  • declining the injunction will defeat the ends of justice and perpetuate injustice; 
  • the principles of comity of courts must be borne in mind so as not to impede the jurisdiction of a foreign court or arbitral tribunal when parties have agreed to subject themselves to the jurisdiction thereof; 
  • ordinarily, an injunction will not be granted if parties have agreed to approach a neutral forum and be governed by the law applicable to it, and the injunction is sought in respect of proceedings brought before such agreed forum. Proceedings in such forum will not generally be treated as vexatious or oppressive, and such courts cannot be considered forum non conveniens; and 
  • the burden of establishing that the forum of choice is a forum non conveniens, or that the proceedings are oppressive or vexatious is on the party making this contention.

Noting, however, that an arbitral tribunal has the power to rule on its own jurisdiction, in Kvaerner Cementation India Limited v. Bajranglal Agarwal, [(2012) 5 SCC 214], the Supreme Court refused to grant an anti-arbitration injunction, ruling that a civil court could not examine questions of validity of the arbitration agreement. However, in World Sport Group v. MSM Satellites Limited [AIR 2014 SC 968], the Supreme Court affirmed that a civil court could refuse arbitration if the arbitration agreement was null, void, inoperable or incapable of being performed (although in that case, the injunction was refused). The position on whether courts are entitled to injunct arbitral proceedings varies from case to case, with some courts following the ratio in Kvaerner, while others following the position in World Sports Group.

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5.2. Anti-suit injunctions

The general principles governing grant of anti-suit injunctions by Indian courts have been enumerated above in Section 5.1. 

Indian courts may grant an anti-suit injunction to restrain a party from commencing or continuing legal proceedings before a court, if there is a valid arbitration clause in the contract, which is sought to be invoked, or when arbitration has already been invoked and the proceedings are pending (see, for instance, Enercon (India) Limited and Ors. v. Enercon GMBH and Anr., (2014) 5 SCC 1).

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6 . Arbitral Tribunal

The A&C Act provides the parties with freedom to choose their arbitrators, including in relation to the number of arbitrators, their nationalities, and their qualifications.

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6.1. Restrictions on the parties’ freedom to choose arbitrators

Indian law does not impose any restrictions on the parties’ freedom to constitute an arbitral tribunal of choice, the only restriction being that the number of arbitrators in a panel is not even. If not otherwise agreed, the default position is that of a sole arbitrator.

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6.2. Requirement of arbitrator independence and impartiality

Arbitrators are required to disclose, in writing, any direct or indirect relationship they have with any of the parties or the subject-matter in dispute which gives rise to justifiable doubts as to their independence or impartiality, as well as the existence of any circumstances that may affect their ability to devote sufficient time to the arbitration. The Fifth Schedule to the A&C Act indicates grounds that give rise to justifiable doubts about an arbitrator’s impartiality or independence. The Seventh Schedule consists of grounds that render a person ineligible for appointment as an arbitrator, though the parties may waive this ineligibility after the appointment, through express agreement in writing. Both schedules import the International Bar Association’s guidelines on Conflicts of Interest in International Arbitration, 2014.

Where the appointment of an arbitrator is being made by a court in an international commercial arbitration, the court may appoint an arbitrator of a neutral nationality, where the parties belong to different nationalities.

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6.3. Mandatory rules applicable to the appointment process

There are no specific mandatory rules applicable to the appointment process. Section 11 provides that the parties are free to choose the method of appointment of arbitrators.

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6.4. Appointment mechanism in the absence of party agreement or applicable institutional rules

Under section 11, in an arbitration with a sole arbitrator, if the parties fail to agree on the appointment of the arbitrator within 30 days from receipt of a request for appointment by either party, then the aggrieved party may approach the competent court for appointment of the sole arbitrator.

Where parties fail to agree on a procedure for appointment of an arbitrator or arbitrators, the A&C Act provides that, in an arbitration with a three-member panel, each party shall appoint one arbitrator, and the two appointed arbitrators are required to jointly appoint the third arbitrator (to act as the presiding arbitrator). In case of failure to appoint an arbitrator (whether a party nominated arbitrator or the third/presiding arbitrator) within 30 days from receipt of a request for appointment, the aggrieved party may approach the competent court for appointment of the relevant arbitrator.

Where the arbitration is an international commercial arbitration, the Supreme Court will have jurisdiction over such application, while the High Court having territorial jurisdiction will be the competent court in a domestic arbitration.

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6.5. Mandatory rules applicable to the replacement process

Under section 15(2), a substitute arbitrator shall be appointed in accordance with the same procedure as applicable to the appointment of the arbitrator being replaced.

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6.6. Mandatory disclosure obligations

Under section 12, arbitrators must disclose in writing the existence of any direct or indirect, past or present relationship with, or interest in, the parties, or in relation to the subject-matter in dispute, which may give rise to justifiable doubts as to their independence or impartiality and any circumstances that are likely to affect their ability to devote sufficient time to the arbitration. The format of disclosure is set out in the Sixth Schedule.

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6.7. Grounds for challenge

An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to the arbitrator’s independence or impartiality, or if the arbitrators do not have the requisite qualifications as agreed by the parties.

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6.8. Mandatory rules governing the challenge of arbitrators

Section 13 provides the parties with freedom to agree on a procedure for challenging an arbitrator. In the event parties are unable to agree on a procedure for challenging an arbitrator, a party may, within 15 days of becoming aware of the constitution of the arbitral tribunal, or of circumstances that give rise to justifiable doubts about an arbitrators’ independence or impartiality, send a written statement of the reasons for the challenge to the arbitral tribunal. 

Unless the challenged arbitrator withdraws, or the other party agrees to the challenge, the arbitral tribunal will decide on the challenge. If the challenge is unsuccessful, the arbitral proceedings will continue, and an award will be rendered; the party challenging the arbitrator may subsequently seek to have the award set aside. Where such an award is set aside, the court may decide as to whether the challenged arbitrator is entitled to any fees.

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6.9. Removal

Under section 14, an arbitrator’s mandate shall be terminated if they become de jure or de facto unable to perform their functions or, for other reasons, fail to act without undue delay, or if they withdraw from their office or if the parties agree to terminate their mandate.

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6.10. Liability and immunity of arbitrators

Section 42-B provides immunity to arbitrators from any suit or legal proceedings for any act done in good faith or intended to be done pursuant to the A&C Act or any rules or regulations made thereunder.

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7 . Assistance by the State courts

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7.1. Interim measures

Overview of interim measures

A party may apply to the competent court for interim measures of protection before or during the arbitral proceedings, or at any time after an award is made, but before the award is enforced. Parties may approach Indian courts for such orders even in respect of foreign-seated arbitrations, unless agreed otherwise.

Interim relief may be sought for: 

  • the appointment of a guardian for a minor or person of unsound mind;
  • preservation, interim custody, or sale of goods that are the subject-matter of the agreement; 
  • securing the disputed amount; 
  • detention, preservation, or inspection of any property or thing that is the subject-matter of the dispute; 
  • an interim injunction, or appointment of a receiver; 
  • such other interim measure of protection as appears to the court to be just and convenient.

Relevance of availability of emergency arbitrator mechanism

The A&C Act does not specifically deal with emergency arbitration. However, on the basis of the Supreme Court’s decision in Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors. [(2022) 1 SCC 209] in a domestic arbitration governed by the rules of an arbitral institution which contains provisions for emergency arbitration, an emergency arbitrator’s order/award would be considered to be an interim order of an arbitral tribunal under section 17 of the A&C Act.

Awards of emergency arbitrators issued in a foreign seated arbitration are however not enforceable, as Part II of the A&C Act deals with enforcement of awards under the New York Convention and an emergency award – which is not final – does not fall within the purview thereof. From a practical point of view, an emergency award would only be persuasive, and parties would have to file a separate application claiming the same relief from a competent court in India, on the basis of the emergency award. It is then the order of the Indian court which would be directly enforceable in India.

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7.2. Taking of evidence

While the provisions of the Indian Code of Civil Procedure, 1908 (CPC) and Indian Evidence Act, 1872 do not per se apply to arbitration proceedings, generally, arbitrators follow the principles laid down in the aforesaid statutes in procedural matters, including for production of evidence. As a matter of general practice, evidence is adduced by parties immediately after completion of the pleadings. Parties may also make an application to the tribunal for discovery and inspection of documents which are in the possession of the opposite party.

If for any reason a party fails to comply with the tribunal’s direction to produce documents, under Section 27 of the A&C Act, a court can assist the parties/arbitral tribunal with taking of evidence and may order that certain evidence be provided directly to the arbitral tribunal. The court may, while making such an order, issue the same processes to witnesses as it may issue in suits tried before it. This recourse is also available in respect of foreign-seated arbitrations, unless agreed otherwise.

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7.3. Appointment or challenge of arbitrators

For the procedure of appointment, refer to Sections 6.3 and 6.4 above. For challenge, please refer to Sections 6.7 and 6.8 above.

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7.4. Other available assistance

Under section 8 of the A&C Act, a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement (or any person claiming through or under him) so applies not later than submitting their first statement on the substance of the dispute, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. 

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8 . General procedural (minimum) requirements

The conduct of arbitral proceedings under the A&C Act is broadly based on the UNCITRAL Model Law, with parties having the freedom to agree on the procedure to be followed. Failing such agreement, the tribunal has the power to conduct proceedings as it deems appropriate, including any determination on the admissibility, relevance, materiality and weight of any evidence. Further, the tribunal is not bound by the formal rules of civil procedure and evidence. 

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9 . Confidentiality

Section 42A places a mandatory obligation on the tribunal, arbitral institution and the parties to maintain confidentiality of all arbitral proceedings, with the exception of the record of the arbitration and the award, where its disclosure is necessary for implementation, enforcement and challenge. 

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10 . Awards

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10.1. Requirements as to content and form

An award must be in writing, dated and signed by the tribunal and must state the place of arbitration. Signatures by the majority of the tribunal is sufficient, provided the reason for the omission of the other signature(s) is set out.

The award must also state the reasons on which it is based, unless parties agree otherwise, or the award is on agreed terms pursuant to a settlement. Once made, a signed copy of the award must be delivered to all parties.

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10.2. Time limit

Awards arising out of purely domestic arbitrations (i.e., between Indian parties) are to be made within 12 months from the date of completion of the pleadings, extendable by 6 months with the consent of parties. Any further extension can only be granted by the court on an application in this regard. 

For international commercial arbitrations, the award is to be rendered expeditiously, endeavouring to adhere to the aforesaid timelines, however there is no strict requirement in this regard. 

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10.3. Remedies

An arbitral tribunal may award remedies inter alia in the nature of damages, injunctive relief and/or specific performance.

Unless otherwise agreed by parties, the tribunal is also empowered to award reasonable interest on the whole or part of the award, for the whole or part of the period between the cause of action arising and the date of the award. 

The tribunal may also make an award for costs, the general rule being that the unsuccessful party shall be ordered to pay costs of the successful party, unless the court/tribunal makes a different order, for reasons to be recorded in writing.

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11 . Post-award proceedings

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11.1. Interpretation and correction of awards

Under section 33 of the A&C Act, a party may request correction of any clerical, typographical or computation errors (after giving notice to the counterparty) and/or an interpretation of a specific point or part of the award (if so agreed by all parties). 

Unless parties agree otherwise, such request is to be made to the tribunal within a period of 30 days from the date of receipt of the award. If the tribunal considers the request justified, it shall make the correction or provide the interpretation within 30 days from the request, and such interpretation would be considered part of the award. 

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11.2. Challenge of an award

Under Section 34, an award may be set aside on the following limited grounds:

  • the aggrieved party was under some incapacity;
  • the arbitration agreement is invalid under the law to which parties have subjected it, or failing any indication thereon, under the law in force in India;
  • such party was not given proper notice of the appointment of an arbitrator or the arbitral proceedings or was unable to present its case;
  • the award deals with a dispute falling beyond the scope of reference to arbitration;
  • the composition of the tribunal or the arbitral procedure was not in accordance with the agreement between parties. 

The court may also set aside the award, if it finds that:

  • the subject-matter of the dispute is not capable of settlement by arbitration under Indian law;
  • the award is against the public policy of India;
  • in case of domestic arbitration, the award is vitiated by patent illegality appearing on the face of it but not merely on the ground of an erroneous application or the law or by re-appreciation of evidence.

An application for setting aside an award must be made within 3 months from the date of receipt of the award, extendable by the court by a period of 30 days if sufficient cause is shown. 

A court’s order setting aside or refusing to set aside an award is appealable under Section 37. 

While there is no statutory right of second appeal, a party may approach the Supreme Court for special leave to appeal against an order or judgment involving a substantial question of law. 

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11.3. Recognition and enforcement proceedings

A domestic award is enforceable once the 3-month time period for setting it aside has passed, provided the award has not been stayed by a court, in the same manner as a monetary decree of the court and in accordance with the Indian Code of Civil Procedure, 1908 (CPC). 

The filing of an application to set aside an award does not automatically obstruct enforcement unless the court grants a stay on the operation of such award on a separate application made for this purpose. Grant of a stay by a court may be conditional upon the applicant furnishing security or depositing the award amount in court. This discourages frivolous applications challenging awards.

However, where a court is satisfied that a prima facie case exists that the arbitration agreement or contract forming the basis of the award or the making of the award itself is induced by fraud or corruption, and where the award is challenged on such grounds, the court may grant an unconditional stay on the enforcement of such award, pending disposal of the challenge. Note that a bare allegation of fraud or corruption would not suffice for the purpose. 

The A&C Act does not prescribe a specific time limit within which an action to recognise and enforce an award must be brought. The Supreme Court filled this statutory lacuna in Union of India v. Vedanta Ltd., (2020) 10 SCC 1. It held, that by virtue of the statutory fiction created by Section 36 of the A&C Act, a domestic award (an award rendered in an Indian-seated arbitration), is deemed to be a decree of an Indian court for the limited purpose of its enforcement. Accordingly, an application to enforce a domestic award is to be brought within a period of 12 years (as per Article 136 of the Indian Limitation Act, 1963) from the time of the decree. On the other hand, foreign awards are not considered decrees of an Indian civil court. Accordingly, an application for enforcement of a foreign award is to be brought within a period of 3 years (as per Article 137 of the Indian Limitation Act, 1963) from the time the right to apply accrues. 

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11.4. Cost of enforcement

It is difficult to precisely estimate the cost of enforcing an award, as this would vary depending on factors such as the number of hearings required and whether any challenge is filed to resist such enforcement. 

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11.5. Enforcement of orders of emergency arbitrators

See Section 7.1 above. 

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12 . Enforcement of foreign awards

 A foreign award is enforceable if it meets certain conditions, viz. the award is:

  • an arbitral award on differences relating to matters considered as commercial under the law in force in India (India having adopted the ‘commercial’ reservation); 
  • in pursuance of an agreement for arbitration to which either of the said Conventions apply; and 
  • in relation to persons of whom one is subject to the jurisdiction of a territory notified by the Central Government (as being a party to either of the said Conventions), and issued in one such notified territory; and 
  • final (an award is not deemed to be final if any proceedings contesting the validity of the award are pending in the country in which it was made). 
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12.1. Process for enforcing New York Convention awards

An application for enforcement of a foreign arbitral award may be filed in the High Court exercising territorial jurisdiction over the assets of the award-debtor against which the award is sought to be enforced. The application should be accompanied by the original or authenticated copy of the award, the original or certified copy of the arbitration agreement and evidence that the award is a foreign award. Once the court is satisfied that the award is enforceable, the said award shall be enforceable in the same manner as a decree of that court under the CPC. 

The period of limitation for enforcement of a foreign award is three years from when the right to apply accrues, i.e., when the award becomes final.

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12.2. Grounds for resisting enforcement of New York Convention awards

Enforcement of a foreign award may be refused on grounds similar to the setting aside of a domestic award: 

  • parties to the arbitration agreement were under some incapacity;
  • the arbitration agreement is not valid under the law to which the parties have subjected it;
  • the award debtor was not given proper notice of the appointment of an arbitrator or the arbitral proceedings or was unable to present its case;
  • the subject matter of the dispute is beyond the scope of the submission to arbitration;
  • the composition of the tribunal, or the arbitral procedure was not in accordance with the agreement of the parties; and
  • the award is not yet binding or has been set aside by the court of a country in which the award was made.

Enforcement of a foreign award may also be refused if a court finds that:

  • the subject matter of the dispute is not capable of settlement by arbitration under the law of India; or
  • enforcement of the award would be contrary to the public policy of India (to be noted that the scope of the public policy challenge in terms of considering whether to enforce a foreign award is narrower than when considered in terms of a challenge to a domestic award).
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12.3. Enforcing Non-Convention awards

Non-convention awards cannot be directly enforced in India, since there is no provision in the A&C Act or the CPC for enforcement thereof. 

The only practical route would be for the award-holder to file a fresh civil suit in an Indian court, seeking the same reliefs as granted in the award. The award itself will be of persuasive value for the court. The decree arising out of the suit may then be enforced.

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13 . Professional and ethical rules

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13.1. Applicable to counsel

The Advocates Act, 1961, applicable to Indian lawyers/advocates who are required to be enrolled with local bar associations under the Bar Council of India, empowers the Bar Council of India to make rules on the standards of professional conduct and etiquette to be maintained by advocates. These rules prescribe inter alia the duty of advocates towards the court, client, opposing parties and colleagues. There are no specific rules for counsel representing parties in arbitration proceedings. 

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13.2. Applicable to arbitrators

Arbitrators have a duty to act fairly and impartially and devote sufficient time and attention to the conduct of the proceedings. 

As set out above in Sections 6.2 and 6.6, an arbitrator must disclose in writing the existence of any fact that may give rise to justifiable doubts as to their impartiality. 

Various arbitration institutions have prescribed guidelines/standards/rules on the professional and ethical conduct of arbitrators and/or counsel to ensure their impartiality and independence in arbitration proceedings – for example the ICA Code of Conduct.

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14 . Third-party funding

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14.1. Applicable regulatory requirements

There is no specific formal legislation dealing with third-party funding in India. However, the prevailing view, including of the Supreme Court in Bar Council of India v. A.K. Balaji [(2018) 5 SCC 379], is that there is no restriction on third parties funding a litigation, so long as they are not lawyers acting in the case.

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14.2. Overview of the third-party funding market in this jurisdiction

The market is at a very nascent stage and most cases that are funded are seated outside India or are in relation to Respondents that have their assets available for enforcement outside India. 

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15 . Trends and recent developments

Reliance on arbitration as an alternate dispute resolution mechanism in commercial disputes is at an all-time high in India, being a common feature in almost every contract nowadays. Recent decisions of Indian courts have cemented the judiciary’s pro-arbitration approach with party autonomy at the forefront. From a policy perspective, amendments to the A&C Act introducing stricter timelines for completion of proceedings as well as confidentiality provisions have given impetus to arbitration in India. 

Further, parties are increasingly relying on arbitral institutions, and recent years have seen the establishment of new institutions, such as the MCIA and the IAMC. Indian parties are also increasingly appointing counsel and international arbitrators to arbitral tribunals, as opposed to Indian judges. There is a similarly noticeable increase in reliance on experts in Indian arbitrations. 

Finally, while presenting the Union Budget 2022-23, the government announced the establishment of a state-of-the-art international arbitration centre at Gujarat International Finance Tec City (GIFT City) to provide an expeditious and sophisticated dispute resolution mechanism for foreign investors.

EXPERT ANALYSIS

Chapters

Australia

Cara North
Eleanor Clifford
Nastasja Suhadolnik
Samuel Kay

Brazil

Anna-Katharina Scheffer da Silveira
Paulo Macedo
Rafael Alves

Colombia

Juan Felipe Merizalde
Juan Pablo Gómez-Moreno

Ecuador

Adriana Rodas
David Toscano
Gabriela Ortega

England and Wales

Gregory Fullelove
Katie Bewlock

France

Carl Szymura
Julie Spinelli

Hong Kong

Kim M. Rooney

Italy

Gregorio Baldoli
Massimo Benedettelli

Nigeria

Igonikon Adekunle
Konyinsola Osipitan
Sesan Sulaiman

Saudi Arabia

Fahad N. AlArfaj

Singapore

Joel Quek
Koh Swee Yen SC
Wendy Lin

South Africa

Clement Mkiva
Jackie Lafleur
Jonathan Barnes
Tori Herholdt

South Korea

Brandon Bang
Hangil Lee
In Hyuk Hwang
Tony DongWook Kang

Switzerland

Noradèle Radjai

United States

Benjamin Guthrie
Carlos Hafemann
Daniela Páez
Emma McGrath
Lucila Marchini
Louis Thivierge

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18h

Tech innovation is expected to fuel IP filing boom over next 12 months, study finds


3d