India is steadily progressing as an impressive seat of International Arbitration. One of the most important milestones in the process of becoming a progressive arbitration seat, is the arbitration friendly judicial system which is evident from the recent judgments. The Government is also doing its part effectively and the amendments brought in in the procedural law of India in the year 2015 conferring exclusive Jurisdiction to the High Courts in India for enforcement of foreign awards, made a big change. Indian Courts has been consistently strengthening and simplifying the procedural bottle necks that came in the way of smooth enforcement of foreign awards in India. In the last two years Supreme Court of India and High Courts in India have further simplified the process and have made the enforcement system more user friendly. Even though law relating to enforcement is well settled that S.48 which is providing the grounds for refusal for enforcement of an award, does not give an opportunity to have a “second look” at the merits of the foreign award1 , some issues that were being time and again raised for delaying the enforcement. Those are settled in the last few years and hence Foreign award enforcement has become much easier than ever.

India is a model law country and hence the procedural law of India2 is similar to the UNCITRAL Model law3 . Hence at the time of enforcement of a foreign award the party seeking enforcement have to furnish certain documents including the original/ authenticated copy of the arbitration award, authenticated copy of the arbitration agreement etc., to prove that the arbitration award is an international arbitration award. In India also there are two stages in the process of enforcement of a foreign award and the first is the recognition of the award and the second is the enforcement. The executing court has powers to refuse enforcement of a foreign award for a few reasons including the reason of the award violating Public policy of India. The Courts in India settled the law holding that narrow approach should be applied while applying the public policy concept for enforcement of foreign awards and unlike in the process of challenging of a domestic award where the public policy concept gets a wider approach.

The other major bottle neck was the High Courts applying vert strict approach with regard to filing of an authenticated copy of an arbitration agreement at the time of filing of the application seeking enforcement. In the case of PEC Limited4 the Indian party resisting enforcement contended that the party seeking enforcement did not file the authenticated copy of the arbitration agreement at the time of filing and it was filed only along with the reply and hence the award should not be enforced. The Supreme Court of India vide its judgment dated 14.11.2018 held that the object of New York Convention5 will get defeated if such an interpretation is given to the said provision. It further held that even the legislative intent is also not to refuse enforcement on that ground of non-production of documents along with the application and hence there is no such ground provided under Section 48, does not provide a ground that if the documents mentioned in Section 47 were not filed along with the application, enforcement can be refused.

The next objection raised by the resisting party was that there was no arbitration agreement in writing between the parties, as required by the Indian law. The Supreme Court rejected that contention on various grounds including that the contract was governed by English law under which there was no requirement for charter party to be signed by parties to make it binding on them. Since arbitration agreement can be a clause incorporated in an agreement, signed by parties or contained in an exchange of letters or telegrams the “writing” requirement need to be interpreted liberally. It was also found that charter party which contained arbitration agreement was agreed to and entered upon by the parties and the same was supported by the correspondence between the parties. It was held that the term “agreement in writing” is a much wider term and hence the contention of the resisting party that there was no arbitration agreement between the parties was rejected.

In another case of Vedanta6 the Supreme Court of India while hearing an application of Government of India resisting an international arbitration award passed against it from a Malaysian Seat, raised two major issues (i) Whether the Courts in Malaysia ought to have applied the Public Policy principles of India, since the substantive law was Indian law in the proceeding challenging the award in the seat? (ii) Whether the enforcement proceedings suffers on Limitation issue due to the delay in initiating the enforcement proceedings? With regard to the first issue of whether the substantive law to be applied by the court in the seat of arbitration while dealing with the challenge proceedings, the Court held that the public policy concept as provided in the procedural law is only applicable and hence the Court applying the parameters of “Public policy” of Malaysia was the correct approach.

The Court dismissed the above said objection relating to the Public Policy interpretation as per Malaysian law. The Court held that the Malaysian courts correctly applied Public policy Concept as per Malaysian Law, to decide to the challenge to the award because the seat of Arbitration is in Malaysia. With regard to Limitation, it was found that a petition for enforcement of a foreign award would be governed by Article 137 of the Limitation Act and hence the Limitation period of three years would not start from the date of the arbitration award but from the date of right to apply accrues. It also held that in case of delay, a party may file an application under Section 5 for condonation of delay, if required in the facts and circumstances of the Case.

The Above said Judgments have made the enforcement of a foreign award in India, much easier than earlier.