Foreign Awards Research Articles

Indian Arbitration: The Ghost of Implied Exclusion and other Related Issues

The purpose of this article is to examine the effect of the Arbitration and Conciliation (Amendment) Act, 2015 on the scope and applicability of the Arbitration and Conciliation Act, 1996. In 2015, several provisions of the Arbitration and Conciliation Act, 1996 were amended by the Arbitration and Conciliation (Amendment) Act, 2015 based on the recommendations of the Law Commission of India in its 246th Report. Among other things, a proviso was inserted to section 2(2) of the 1996 Act to empower Indian courts to act in aid of foreign-seated international commercial arbitrations. So, pursuant to the amendment, Indian courts can aid foreign-seated arbitral tribunals in taking of evidence or grant interim measures in favour of such arbitrations if the resulting award is enforceable under the New York Convention on the Recognition and Enforcement of Foreign Awards or Convention on Execution of Foreign Arbitral Awards in India. The Law Commission of India had recommended that such remedies available under the proviso to section 2(2) could be excluded only by an ‘express’ agreement between the parties. However, in the present form, the proviso to section 2(2) of the Arbitration and Conciliation Act, 1996 provides that the aforesaid remedies could be excluded by an ‘express’ and ‘implied’ agreement between the parties. The author highlights the various problems that may arise as a result of such remedies being made excludable by an ‘implied agreement’ between the parties in light of the ‘theory of implied exclusion’ propounded by the judgment of the Supreme Court of India in Bhatia International v Bulk Trading SA. The author also deals with other ancillary issues arising from such an amendment to section 2(2) of the Arbitration and Conciliation Act, 1996.

Enforcement of Arbitral Awards under the New York Convention in Switzerland – An overview of the current practice and case law of the Swiss Supreme Court

This article presents an overview of the current practice and case law of the Swiss Supreme Court in relation to the implementation of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. More specifically, this article examines the decisions rendered by the Swiss Supreme Court over the period 2000-2016. Decisions are discussed in relation to the relevant provision of the Convention on an article-by-article basis. For each provision of the Convention, a short commentary is included highlighting the relevant requirements and thresholds that need to be met in light of the recent case law of the Swiss Supreme Court in order for a party to obtain or to successfully resist the recognition and enforcement of a foreign award in Switzerland. The decisions of the Swiss Supreme Court rendered during the period under review are of particular interest as the Supreme Court has examined several Convention provisions for the first time, whilst confirming, clarifying and even overturning its earlier case law. These decisions confirm that Swiss courts continue to take a liberal, pragmatic and pro-enforcement approach to the New York Convention in practice.

The enforcement of foreign arbitral awards in Australia against non-signatories to the arbitration agreement

A party that obtains an award in an overseas-seated arbitration may seek enforcement by an Australian court under the International Arbitration Act 1974 (Cth). However, Australian case law is somewhat inconsistent in terms of judicial support for arbitration and there is a perception that Australian courts have inadequately fulfilled Australia’s obligations under the New York Convention by interpreting the arbitral law in an interventionist rather than supportive way. There is particular uncertainty surrounding the enforcement of foreign awards against non-signatories to the arbitration agreement. Much of this uncertainty stems from linguistic differences between the enforcement provisions of the International Arbitration Act and the equivalent provisions in other prominent jurisdictions. This article compares the recent practice of Australian courts regarding the enforcement of foreign arbitral awards against non-signatories to the arbitration agreement with the theoretical framework set out in the New York Convention and with the decisions of courts in England, Singapore and Hong Kong. It argues that amendments to the International Arbitration Act are required to bring Australia’s enforcement provisions into line with international practice and Australia’s obligations under the New York Convention. Australian International Arbitration Act (1974) English Arbitration Act (1996) Singapore International Arbitration Act (as amended in 2012) Hong Kong Arbitration Ordinance (2014) (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), arts III, IV, V IMC Aviation Solutions Pty Ltd v Altain Khuder LLC, Victorian Court of Appeal (Australia) (2011) Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd, Federal Court of Australia (2012) Dardana Ltd v Yukos Oil Co, English Court of Appeal (2002) Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, UK Supreme Court (2011) Aloe Vera of America Inc v Asianic Food (S) Pte Ltd and Another, High Court of Singapore (2006) Paklito Investment Ltd v Klockner East Asia Ltd, Supreme Court of Hong Kong (1993) Hebei Import & Export Corp v Polytek Engineering Co Ltd, Court of Final Appeal of the Hong Kong Special Administrative Region (1999)

Taisei Corporation v A.M. Construction Co. (Pvt.) Ltd.—Decision of the Lahore High Court in light of the New York Convention

The objective of promulgation of the New York Convention, 1958, was to ensure the recognition and enforcement of foreign arbitral awards in Member States. Contrary to the letter and spirit of that objective, certain provisions enshrined in the Convention have given room to national courts for un-harmonized interpretation, thereby causing undesirable delay in the enforcement of awards. Article V(1)(e) represents one such provision that has been subject to different treatments by the courts at distinct jurisdictions. A widely endorsed international interpretation seemingly exists parallel to a parochial one adopted by a few jurisdictions, including Pakistan. The decision given in the Taisei v A.M. Construction Co. by the Lahore High Court further consolidates the position of Pakistani courts in this regard. However, the matter is now pending adjudication before the Supreme Court of Pakistan. It remains to be seen whether the Apex Court will nullify the High Court’s ruling and proceed to deposit a new precedent in conformity with international arbitral practice. Pakistani Recognition and Enforcement of (Arbitration Agreements and Foreign Awards) Act (2011) Pakistani Arbitration Act (1940) (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Taisei Corporation v AM Construction Co (Pvt.) Ltd , Lahore High Court (2012) Bharat Aluminium Co v Kaiser Aluminium Technical Service, Inc , Supreme Court of India (2012) Hitachi Ltd v Rupali Polyester and ors , Supreme Court of Pakistan (1998)

Are anti-arbitration injunctions a malaise? An analysis in the context of Indian law

Until recently, Indian courts have adjudicated upon their authority to issue anti-arbitration injunctions in the context of foreign-seated arbitrations in a haphazard manner, without examining the source or compatibility of this power with either the (Indian) Arbitration and Conciliation Act, 1996 or the Convention on Recognition and Enforcement of Foreign Awards, 1958. Deviating from this trend, two recent decisions of the Supreme Court of India, viz Chatterjee Petrochem and World Sport Group, have deliberated upon this issue and interestingly, they have followed an inconsistent approach. This has led to uncertainty over whether Indian courts may entertain a civil action seeking to restrain foreign arbitral proceedings. Accordingly, in this article, the authors analyse the existing position of law in this regard. They elucidate the early Indian approach towards anti-arbitration injunctions, the relevant provisions of the 1996 Act, and the comparative framework in which the current position should be examined. The authors conclude that the decision in World Sport Group is in consonance with the interpretation of the 1996 Act. Further, it reflects international best practice, according to which anti-arbitration injunctions may be awarded where the arbitration agreement is null and void or inoperative or incapable of being performed, and the foreign arbitral proceeding is vexatious and oppressive. International Convention: Convention on the Recognition and Enforcement of Arbitral Awards, 1958, 330 UNTS 38 (1959) [‘New York Convention’].Domestic Legislation: Arbitration and Conciliation Act, 1996 (August 16, 1996) (India)Judicial Decisions: Chatterjee Petrochem Co v Haldia Petrochemicals Ltd, 2013 (15) SCALE 45 (Indian Supreme Court)World Sport Group (Maurities) v MSM Satellite (Singapore), AIR 2014 SC 968 (Indian Supreme Court)

The enforcement of foreign arbitral award merged with foreign judgement under the United Arab Emirate Civil Procedure Law

The argument of this paper is based on the fact that since the methods of enforcement of foreign arbitral awards are different from their counterparts which are provided for foreign judgements. The question arises as to whether foreign arbitral award merged into judgement will be enforced by methods of enforcement pertaining to foreign awards or those pertaining to foreign judgments in UAE.

Enforcement of Foreign Awards in Mainland China: Current Practices and Future Trends

The ability to enforce an arbitral award in Mainland China is a crucial factor for every non-Chinese party to consider when entering into an arbitration agreement or arbitrating a dispute with a Chinese party. This article examines the Chinese courts' current practices of recognizing and enforcing awards made in commonly chosen seats for China-related disputes, such as Hong Kong, Singapore, London and Stockholm. It concludes by exploring future trends that are discernible from statistics collected by the Supreme People's Court of China, the authors' prior discussions with Chinese judges, and a review of several noteworthy decisions rendered by the Chinese courts in recent years.

Judicial Attitude Towards Foreign Arbitral Awards in the United Arab Emirates

This article presents a comparison of the UAE courts' approach towards the enforcement of foreign arbitral awards before and after the UAE's accession to the New York Convention. Before the State's accession to the New York Convention, the UAE courts had a restrictive approach towards enforcement of foreign awards as they applied the same conditions required by Article 235 of the Civil Procedures Code for the enforcement of foreign judgments. However, this historical approach changed markedly after the UAE's accession to the New York Convention on 19 February 2006 by virtue of Decree No. 43 of 2006. To this effect, the present article examines several recent rulings issued by the UAE courts which evidence a strong support for international arbitration and confirm the UAE's adherence to the New York Convention. Furthermore, the courts' current positive approach towards enforcement of foreign arbitration awards does not appear to be threatened by one recent court ruling contravening the progressive developments.

The Recognition and Enforcement of Foreign Arbitral Awards in the Sultanate of Oman

Oman enacted the Law of Arbitration in Civil & Commercial Disputes in 1997. It is along the lines of the UNCITRAL Model Law as then adopted in Egypt. The res judicata status of arbitral awards is formally recognised in this law. It sets out the conditions and procedure for the issue by the courts of an order for the enforcement of awards. As regards foreign awards, the Civil & Commercial Procedure Law provides for them to be assimilated to domestic awards for enforcement purposes, so long as certain conditions are satisfied, including a condition as to reciprocal treatment. This however is without prejudice to Oman's obligation to allow enforcement under international agreements. The main multilateral agreements to which Oman is party are: the New York Convention, the Arab Gulf Cooperation Council Convention, the Riyadh Convention, and the ICSID Convention; and there are also a number of bilateral agreements.

Protection of Direct Foreign Investment: Public Policy Exception Impact on Foreign Direct Investments: 'Court (Non) Enforcement of Arbitration Decisions Based on Public Policy Exception'

This paper is not a target by itself. It is part of a project to research and analyze certain aspects of foreign investments in different jurisdictions. In certain countries, some industries, such as car manufacturing, are granted specific treatment, benefits or incentives resulting from a kind of international competition for new investments. A movement that, sometimes, results in more benefits to the industry than to the country or the community where they are located, and which has been properly described as a “race to the bottom”. When this phenomenon occurs within the boarder of a given country, some regulation may be effective. However, in the international context the questions gain much more complexity.These are basically incentives to attract new investments and they are ordinarily granted to specific market agents. However, incentives may be a “Siren´s song”, attracting new entrepreneurs without giving them real protection for their ventures. In this sense, predictability and a stable legal framework may be an effective incentive for direct investments. New problems emerge from international transactions involving technology companies as well. For instance, Amazon, a global player has started operations in different jurisdictions bringing several legal challenges regarding transactions taking place outside (virtual environment) the country were the services are rendered or goods delivered. In other words, how to deal with operations conducted by a company with local presence, including distribution and logistics systems, but closed outside the country? In such context, it is essential that judicial decisions and arbitral awards be recognize as valid and enforced in different jurisdictions. In most of international deals, the parties elect specific rules for their businesses, such as CISG, UNIDROIT, Principles of European Contract Law, the law of one of the contracting parties or a “neutral law” from another country. At the same time, arbitration has been the most frequent method of dispute resolution in the international arena. Therefore, it is an important part of international transactions to enforce decisions taken in one jurisdiction in another country were the practical result is actually effective. However, in most of the countries, a foreign award must be acknowledged by local courts in order to obtain the “exequatur” of such decision. Usually, the courts would evaluate only formal aspects to ensure that a local resident had the chance to present a proper defense according to a “due process of law” in the foreign jurisdiction (“loci arbitrii”). The merits of the cause should not be disputed again in the place of enforcement, except in very restrict matters. Public policy is certainly the most relevant one.

The Case for an International Commercial Court

This article which was first published in the "Festschrift for Norbert Horn", 931 (de Gruyter Berlin 2007), deals with the supervision of international arbitrators and the need and facility for them to seek preliminary opinions in appropriate cases from a newly to be created International Commercial Court, especially when matters of public policy may arise at the transnational level or where new proprioetary rights affecting third parties may be formulated by international arbitrators in the context of the further development of the modern lex mercatoria, its different legal sources and the hierarchy amongst them. The notion of an appeal or revision facility is here rejected in favour of a more limited facility that is preemptive and also supervises the conduct of international arbitrators. It would require treaty status and could then even replace and centralise the recognition and enforcement of foreign awards under the New York Convention.

Bhatia International to BALCO. : Paradigm Shift in Arbitration Law in India.

The Constitutional Bench of the Hon'ble Supreme Court, on 6 September 2012 passed a path breaking judgment regarding the future implications of foreign award and foreign arbitration vis a vis jurisdiction of Indian Courts through Bharat Aluminum Co. v. Kaiser Aluminum Technical Services Inc .The Court overruled its earlier decision given in Bhatia International v. Bulk Trading S.A and Venture Global Engineering v. Satyam Computer Services ltd. and held that Indian Courts does not have jurisdiction to interfere in arbitral proceedings held outside India. This Judgment of the honorable Court was well received by the Legal scholars around the world. In the present article the author(s) has discussed in detail the position prior to the judgment, position in other countries, as well as the changes brought in by the said judgment while critically analyzing its implications.

International Commercial Arbitration in Asia and the Choice of Law Determination

The article essentially deals with the choice of law process associated with three principal aspects of applicable laws in international commercial arbitration, namely, the law governing arbitration agreements, the law governing arbitral procedure and the law governing the substantive merits of the dispute. This research is of significance as these different aspects of arbitration (the agreement, the procedure and merits of the dispute) are commonly subjected to different laws. As a precursor, the introductory part of this article discusses the evolution and present position of international commercial arbitration in the region. The following chapter sets out the basic interaction between private international law and international commercial arbitration, as well as an overview of the choice of law process, which by and large is treated as the essential stage of a conflict of laws methodology. This section of the article gives a brief sketch of the conflict of laws system in ascertaining the applicable laws relating to the three elements of an international arbitration process, placing a focus on different approaches adopted by some of the more important arbitral-legal systems in Asia. As a disclaimer, the other two important questions of private international law, jurisdiction and enforcement of foreign awards, are not part of this discussion.

From Bhatia to Kaiser: Testing the Indian Judiciary’s Self-Restraint

The Supreme Court of India pronounced its much-awaited decision in Bharat Aluminium Co v Kaiser Aluminium Technical Services ('Kaiser') on 6 September 2012. The Supreme Court held that Parts I and II of the [Indian] Arbitration & Conciliation Act, 1996 were mutually exclusive and as a consequence, the provisions of Part I could not apply to foreign awards and would only apply to arbitrations taking place in India. By this pronouncement, the Supreme Court has remedied the extant policy of excessive court intervention in arbitration, in particular, exercising jurisdiction to review foreign awards on merits. This paper examines the Indian judiciary's approach to challenges to arbitral awards, in particular, foreign arbitral awards. It seeks to assess reasons for court interference and concludes that the reasons underlying (excessive) court intervention in India cannot extend to international arbitrations. There is no justification for Indian courts to intervene beyond global norms of limited intervention in international arbitration, and such intervention is also contrary to India's obligations under the New York Convention. While this position has been rectified by the decision in Kaiser, it defies logic for this jurisdictional correction to operate only prospectively - to arbitration agreements entered into after the date of pronouncement of the Kaiser decision. In relation to domestic arbitration, Indian courts can be expected to reduce intervention only if they have faith in the quality of domestic arbitration as an alternate dispute resolution mechanism. To this end, India will need to strengthen its 'arbitral infrastructure' by establishing credible institutions to administer arbitrations and encouraging specialist counsel and trained arbitrators.

Enforcement of Foreign Awards in India

Enforcement of Foreign Awards in India

Public Policy Narrowly Interpreted in Foreign Award Enforcement Proceedings in India: A Comment

The Supreme Court of India had previously given a broad interpretation to the ground of public policy and thereby permitted a review of the foreign arbitral award on merits in award enforcement proceedings. The Supreme Court has recently abandoned this position. Consistent with international practice, the Supreme Court has held in Shri Lal Mahal Ltd. v. Progetto Grano S.p.a. that the public policy as a ground for refusing enforcement of foreign awards should be interpreted narrowly.

Enforcement of Foreign Awards in India - Application of Public Policy

Enforcement of foreign awards has been subject to changes on judicial ruling paradigm. This paper presents the evolution of enforcement of foreign award in context of rulings on the doctrine of public policy.

A Critical Study on How the Saudi Arbitration Code Could Be Improved and on Overcoming the Issues of Enforcing Foreign Awards in the Country as a Signatory State to the New York Convention

It is essential for developing countries, including Saudi Arabia, to reform investment related regulations and laws, especially those related to arbitration. Sharia law in Saudi Arabia causes major concerns to foreign investors as it differs considerably from western legal systems. Therefore, the processes of arbitration and outcome are suffering from uncertainty and ambiguity. This essay will answer the question of how the Saudi government could encourage foreign investors through improving the current arbitration law. In reaching a conclusion on the necessary improvements, three main aspects will be analysed in the Saudi Arbitration Act which are finality of awards, choice of arbitrators and the authority to enter into arbitration agreements. Another important aspect will be discussed is the enforcement of foreign awards as a contracting state of the New York Convention. In conclusion, it is found that the Arbitration Code has several deficiencies that would concern foreign investors. Recommendations on how to develop the law will be given in order for the arbitration law to serve its purpose that is to create a legal certainty and security regarding dispute settlement.

Effects of Foreign Judgments Relating to International Arbitral Awards: Is the 'Judgment Route' the Wrong Road?

This article examines and critically assesses the 'judgment route' in international arbitration. The 'judgment' route refers to a growing trend in many jurisdictions to grant effects to foreign judgments relating to international arbitral awards, such as judgments setting aside, confirming, recognizing or enforcing an arbitral award (called 'award judgments' for the purposes of the article). Although there is abundant commentary on the effects of set aside judgments, very little attention has been paid to the other equally important situations where courts confirm, refuse to set aside or simply recognize or enforce an award. This article aims to fill this gap. It is submitted that national courts often err when they grant effects to foreign award judgments. On a theoretical level, the judgment route ignores the distinctive, ancillary nature of award judgments: award judgments differ from other judgments insofar as they relate to a prior adjudication — the award — and thus need to be treated differently. Moreover, on a practical level, the judgment route risks encouraging forum shopping and the multiplication of parallel proceedings, and it increases the likelihood of conflicting decisions. On the basis of these findings, the article concludes that the judgment route taken by courts in many jurisdictions is often the wrong road.

Nullity and Jurisdictional Excess as Grounds for Non-Enforcement of Foreign Awards in Bahrain and the UAE

Both the UAE and Bahrain should be considered liberal and flexible in their enforcement of foreign arbitral awards. The imposition of obstacles to foreign awards on the basis of jurisdictional excess may be remedied if the ultra vires part of the award can be severed from the rest. An award will only exceptionally be considered null and in any event the question of nullity is dependent on the agreed terms of the contract. Unlawful contracts (particularly gharar) and the assumption of authority by the tribunal that was not granted by the express will of the parties will render an award null.