An arbitration award awarded to an arbitrator may be challenged under Section 34 of the Act on application only on the basis of the reasons stated therein and as follows:
⦁ The party was less likely to make an application;
⦁ The arbitration agreement reached by the parties was invalid;
⦁ The applicant party has not been given proper notice of the appointment of an arbitrator or a tribunal;
⦁ The award made is outside the arbitration scope and does not address the dispute;
⦁ An award made in violation of public policy;
⦁ The matter in question cannot be resolved by Arbitration.
⦁ Application for waiver of the prize must be made within 3 months from the date on which the prize is received by the applicant which may be extended by 30 days on reasonable grounds for delay.
EVOLUTION OF ARBITRAL AWARDS IN INDIA-
The recognition and enforcement of arbitral awards in India is governed primarily by the ‘Arbitration’ and Conciliation Act 1996 (ACA 1996) (as amended) and the Code of Civil Procedure 1908 (CPC).
Domestic and foreign awards are used in the same way as an Indian court decision. This is true even of the approval awards received in accordance with the agreement between the parties. However, there is a difference in the arbitration-award process, based on the arbitration seat. Although the enforcement and execution of the arbitral award based in India (domestic award) will be governed by the provisions of ACA 1996, Pt I, the enforcement of foreign awards (or foreign awards) will be governed by the provisions of ACA 1996, Pt II.
ACA 1996, Pt II incorporates and empowers the provisions of the convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) and the Geneva Convention, both authorized by India. India does not sign any other convention related to the enforcement of foreign awards.
The regulation and decision-making process in India is governed by the Civil Procedure Code, 1908 (CPC), while the award process in India is largely regulated by the Arbitration & Conciliation Act, 1996 (Act) and the CPC.
In a similar vein to a court decision in India, domestic and international awards are used. However, there is a difference depending on the seat of the arbitrator. The permanent arbitral award (domestic award) will be governed by Part I of the Act, the enforcement of external awards (international award) will be governed by Part II of the Act.
CHALLENGE TO AN AWARD-
As per the Amendment of Section 34 (Limiting the gamut of Public Policy of India), an award passed in an international arbitration, can only be set aside on the ground that it is against the public policy of India if, and only if, –
(i) the award is infringed by fraud or corruption;
(ii) it is in contravention of Indian law with fundamental policy;
(iii) it is in disputes with basic notions of morality and justice.
The Amendment Act of 2015 sought to supplement the lacuna that existed since the enactment of the Act. Offering previously, it only dealt with the expiry of the arbitrator’s authority and did not deal with the process of re-election. For arbitration commencing after 23 October 2015, a new application for appointment is not required installed in the event of termination and replacement, however, a valid application will still be evaluated.
This will really help the team to ensure a timely arbitration process when entering into a contract and entering forcing the arbitrator to submit his or her award within the stipulated time. At the same time, it is it is equally important to set realistic times for the completion of the arbitration process to avoid it compulsory termination of arbitrator’s authority despite good efforts to deliver the award on time.
INTERNATIONAL COMMERCIAL ARBITRATION-
International Commercial Arbitration is defined under Section 2(f) of the Act. The law does not govern International Domestic Arbitration and Arbitration but in these two cases it differs from each other under Part 1 of the Act and as follows:
⦁ When an arbitrator is appointed;
⦁ With regard to the determination of the law.
It can be defined as arbitration where at least one of the organizations which may be a single person, company or organization of persons who are from outside India and are accustomed to residing outside the Indian administrative center in any other country their Central administrators are controlled. in any other country and not the Indian government.
ENFORCEMENT OF FOREIGN AWARD-
Enforcement of a foreign award is granted under Part II of the Act relating to both the New York Convention award and the Geneva Convention award.
In 2012, the face of International Commercial Arbitration changed when the Supreme Court of India ruled in the case of Bharat Aluminum Co. V. Kaiser Aluminum technical services Ltd, (2012) 9 SCC 552. Best known as BALCO case and provided. the following guidelines as:
⦁ In the case of International Commercial Arbitration where the seat is outside India, no application can be made to the courts of India for temporary relief and they have no jurisdiction in this regard.
⦁ The award given to International Commercial Arbitration will be subject to Indian jurisdiction only if it is enforced in India.
REQUIREMENTS FOR ENFORCEMENT OF FOREIGN AWARDS-
The following critical have to be made to put in force any foreign award and that they are:
⦁ Original award or legal reproduction wherein the award turned into made;
⦁ Evidence to show that it’s a foreign award;
⦁ The award has to accept in a Convention country;
⦁ The settlement has to be in writing;
⦁ The settlement has to be legitimate and must get up from a Commercial settlement.
⦁ The award made have to be unambiguous.
Khardah organization v. Raymond and Co, AIR 1962 SC 1810-In this case, the Court held that a foreign award can’t be made to be enforceable in India if its indispensable component is said to be illegal.
In, Serajuddin v. Michael Golodetz-The Calcutta Supreme Court established important jurisdiction for so-called ‘foreign arbitration’ or important aspects of foreign arbitration where the award may be termed foreign arbitration award. The key features are as follows:
- Foreign country must be the place where Arbitration took place.
- By a foreign arbitrator.
- Enforcement of foreign laws with help of Arbitration.
- Some of the events bring parties from national foreign.
CONCLUSIONS AND SUGGESTIONS-
India is not a country that opposes arbitration. It is therefore easy to argue that the Indian legal system seeks to create an easier environment for the use of international awards. The main problem with the Arbitration and Conciliation Act of 1996 is compliance with the law, which deals with foreign awards and foreign court decisions in the same way. Due to the lack of distinction between foreign compensation awards and court decisions, Indian law does not explicitly address issues directly related to foreign awards. Other changes, such as trying to clarify conference countries with similar provisions to be clarified in the official gazette, as well as legislation directly linked to international arbitral awards could allow the arbitral system to be more organized and India compliant with improved legal regimes.
- Arbitration and Conciliation Act, 1996
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