The Legal 500 & The In-House Lawyer Comparative Legal Guide India: Arbitration This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in India. Country Author: Singh & Associates The Legal 500 This Q&A is part of the global guide to Arbitration. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/ practice-areas/arbitration/ Mr Manoj K Singh, Founding Partner manoj@singhassociates.in The Legal 500 Mr Nilava Bandyopadhyay, Senior Partner nilava@singhassociates.in The Legal 500 1. What legislation applies to arbitration? Are there any mandatory laws? The Arbitration & Conciliation Act, 1996 (as amended in 2015) applies to arbitration and conciliation in India. The only mandatory law governing arbitration in India is the Arbitration & Conciliation Act, 1996. In this regard, it is also not out of place to mention that the State Government of Madhya Pradesh has enacted legislation, the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 for conducting arbitration relating to the works contracts and claims of ascertained value, where the State Government of Madhya Pradesh or any of its Authority is involved.
2. Is the country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention? Yes, India is a signatory to New York Convention (signed on 10th June 1958). India only applies the convention to the enforcement of foreign awards. It may also be noted that before the coming into force of the Arbitration and Conciliation Act, 1996 with effect from 16-8-1996, the law relating to domestic arbitration was contained in the Arbitration Act, 1940, which in turn was brought in place of the Arbitration Act, 1899. Apart from the Arbitration Act, 1940, there were two other enactments of the same genre. One called the Arbitration (Protocol and Convention) Act, 1937 (for execution of the Geneva Convention Awards) and the other called the Foreign Awards (Recognition and Enforcement) Act, 1961 (for enforcement of the New York Convention Awards). The aforesaid three Acts were replaced by the Arbitration and Conciliation Act, 1996, which is based on the United Nations Commission on International Trade Law (UNCITRAL) Model and is broadly compatible with the Rules of Arbitration of the International Chamber of Commerce. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333] 3. What other arbitration-related treaties and conventions is the country a party to? India is also a party to the Geneva Convention on the Execution of Foreign Arbitral Awards 1927. The other treaties signed by India are as following: (i) Association of Southeast Asian Nations (ii) Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation Till now, India has signed 84 BiTs and BIPPs agreements.
4. Is the law governing international arbitration based on the UNCITRAL Model Law? Are there significant differences between the two? The laws governing arbitrations in India are based on UNCITRAL Model Law. In India, the Arbitration & Conciliation Act is divided into four parts: (i) Part I i.e. governing domestic arbitration, (ii) Part II i.e. Enforcement of Certain Foreign Awards, (iii) Part III i.e. Conciliation and (iv) Part IV i.e. Supplementary provisions The Arbitration & Conciliation Act, 1996 governs the domestic arbitrations, enforcing of the domestic awards, international commercial arbitration and enforcement of certain foreign awards. The Arbitration and Conciliation Act, 1996 is based on the United Nations Commission on International Trade Law (UNCITRAL) Model and is broadly compatible with the Rules of Arbitration of the International Chamber of Commerce. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333]. 5. Are there any impending plans to reform the arbitration laws? The arbitration laws were amended in 2015 and came into effect from 23rd October, 2015 and the same reformed the law on arbitration. After the much awaited 2015 amendment, at present, there is no further discussion on reforming the arbitration laws in India.
6. What arbitral institutions (if any) exist? Have there been any amendments to their rules or are there any being considered? Presently, in India various Institutions are functional which provides for Institutional Arbitration, like: (i) Delhi International Arbitration Centre (ii) Mumbai Centre of International Arbitration (iii) The International Centre of Alternative Dispute Resolution (iv) Indian Council of Arbitration (v) SCOPE The Rules of these institutions has recently been amended in terms with the amendment to the Arbitration and Conciliation Act, 1996 in the year 2015. 7. What are the validity requirements for an arbitration agreement? The validity requirement of an arbitration agreement is as follows (as per Section 7 of the Arbitration & Conciliation Act, 1996): (i) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement (ii) An arbitration agreement shall be in writing
(iii) An arbitration agreement is in writing if it is contained ina) A document signed by the parties, b) An exchange of letters, telex, telegrams or other means of telecommunications which provide a record of the agreement c) An exchange of statements of claim and defence in which existence of the agreement is alleged by one party and not denied by the other (iv) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. 8. Are arbitration clauses considered separable from the main contract? The arbitration clauses are considered separate from the main contract in India. Like in the case of Enercon (India) ltd. vs Enercon Gmbh and Anr., Civil Appeal No. 2086 of 2014 (Arising out of SLP (C) No. 10924 of 2013), it was affirmed by the Supreme Court that: The concept of separability of the arbitration clause/agreement from the underlying contract is a necessity to ensure that the intention of the parties to resolve the disputes by arbitration does not evaporate into thin air with every challenge to the legality, validity, finality or breach of the underlying contract. The Indian Arbitration Act, 1996, as noticed above, under Section 16 accepts the concept that the main contract and the arbitration agreement form two independent contracts. Commercial rights and obligations are contained in the underlying, substantive, or the main contract. The Indian Courts in number of cases has consistently held that an Arbitration Clause
survives even in a void/voidable contract. 9. Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration? No. 10. How is the law applicable to the substance determined? For the arbitration, section 28 of the Arbitration and Conciliation Act, 1996 prescribed for the law applicable to the substance of dispute. The law relating to the same is as follows: 10.1. Where the place of arbitration is situated in India, (i) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India; (ii) in international commercial arbitration a) the arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute; b) any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules; c) failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances
surrounding the dispute. 10.2. The arbitral tribunal shall decide ex aequo et bono or as amiable compositor only if the parties have expressly authorised it to do so. 10.3. While deciding and making an award, the arbitral tribunal shall, in all cases, take into account the terms of the contract and trade usages applicable to the transaction. 11. Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years? In Booz-Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, the Hon ble Supreme Court set down certain examples of non-arbitrable disputes such as: (i) Disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) Matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) Guardianship matters; (iv) Insolvency and winding-up matters; (v) Matters related to grant of probate, letters of administration and succession certificate; (vi) Matters related to eviction of tenants where tenant enjoys statutory protection against eviction by special statutes; (vii) The enforcement of a mortgage has been held to be a right in rem for which
proceedings in arbitration would not be maintainable In the matter A. Ayyaswamy vs. A. Paramasivam and Ors., Civil Appeal Nos. 8245-8246 of 2016, the Hon ble Supreme Court held that following are the disputes which are considered non-arbitrable: (viii) Patent, trade-marks and copyright; (ix) Anti-trust/competition laws; (x) Bribery/corruption laws; (xi) Fraud; (xii) Criminal Matters. 12. Are there any restrictions in the appointment of arbitrators? The Arbitration and Conciliation Act, 1996 specially section 12, 13, 14 and 15 provides for the grounds to challenge the jurisdiction of the Arbitration Tribunal including but not limited to the termination of mandate of an Arbitrator on the ground of bias or if he become de-facto or de-jure unable to perform his duty. The Hon ble Supreme Court in various judgments has held that normally an officer of a private company or closely related with the private company or party, ought not to be an Arbitrator. In Indian Oil Corporation Ltd. vs. Raja Transport [Arising out of SLP (c) no. 26906 of 2008], the Hon ble Supreme Court held that merely a government officer has been appointed as an arbitrator with relation to a contract involving Government, may not be a case of bias, unless actual bias has shown. However, if that person has dealt with the contract/project as the dealing authority or controlling authority or his superior s decision is under challenge before him, he ought not to be appointed as an arbitrator. With the recent amendment of 2015, as per section 12(1) of the Arbitration and Conciliation Act, 1996 when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances:
(a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and (b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months. The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. If such grounds exist, then such person cannot be appointed as an Arbitrator. As per section 12(5) of the Arbitration and Conciliation Act, 1996 notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator. The following persons are barred to be appointed as an Arbitrator as per the Seventh Schedule of the Arbitration and Conciliation Act, 1996: (i) The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party. (ii) The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties. (iii) The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties. (iv) The arbitrator is a lawyer in the same law firm which is representing one of the
parties. (v) The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration. (vi) The arbitrator's law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself. (vii) The arbitrator's law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties. (viii) The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom. (ix) The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company. (x) A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties. (xi) The arbitrator is a legal representative of an entity that is a party in the arbitration. (xii) The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties. (xiii) The arbitrator has a significant financial interest in one of the parties or the outcome of the case. (xiv) The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom.
(xv) The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties. (xvi) The arbitrator has previous involvement in the case. (xvii) The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held. (xviii) A close family member of the arbitrator has a significant financial interest in the outcome of the dispute. (xix) The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute. It is pertinent to note that the same have been incorporated from the IBA Guidelines of Conflict of Interest in International Arbitration. The Hon ble Supreme Court of India in recent judgement in the case of TRF Ltd. vs. Energo Engineering Projects Ltd., Civil Appeal no. 5306 of 2017 (Arising out of S.L.P. (C) no. 22912 of 2016) has held that if a person is ineligible to be appointed as an Arbitrator, he is also debarred from being the Appointing Authority to appoint an Arbitrator. The Hon ble Delhi High Court in West Haryana vs. National Highway Authority of India, O.M.P. (T) (COMM.) 28/2017, has held that a person who has advised the Respondent or acted as its Consultant cannot be an Arbitrator on behalf of such party. 13. Are there any default requirements as to the selection of a tribunal? There is no default requirement as to the selection of the tribunal. The selection of the tribunal in India is based on the party autonomy. However, if the parties fail to mutually
agree on deciding the arbitrators then they may approach the court or the Institution for the appointment of the arbitrator(s). 14. Can the local courts intervene in the selection of arbitrators? If so, how? If the parties fail to mutually agree on deciding the arbitrators then they may approach the court for the appointment of the arbitrator(s). Any of the parties may move an application for the appointment of the arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996. Furthermore, in view of section 14 and 15 of the Arbitration and Conciliation Act, 1996, the Hon ble Court has the power to terminate the mandate of an Arbitrator if such Arbitrator becomes de-jure or de-facto unable to perform his duty and substitute the arbitrator. Also as per section 29A(6) of the Arbitration and Conciliation Act, the Hon ble Court can substitute an Arbitrator at the time of extending the time to complete the arbitration proceedings maximum by six months. 15. Can the appointment of an arbitrator be challenged? What is the procedure for such challenge? Has there been an increase in number of challenges in your jurisdiction? The appointment of the arbitrator may be challenged if there is any justifiable doubts to the impartiality, independency or to the neutrality of the arbitrator as per Fifth & Seventh Schedule of the Arbitration & Conciliation Act, 1996. As per Section 13 of the Arbitration & Conciliation Act, 1996, the parties are free to agree on the procedure for challenging the arbitrator. However, if there has no agreement, then any of the parties within 15 days after becoming aware of the justifiable doubts may challenge send a written statement of the reasons to the challenge of the arbitral tribunal. Unless, the arbitrator withdraws or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. If the challenge is not successful, then the arbitrator may pass an award and the same can be challenged under Section 34 of the Arbitration &
Conciliation Act, 1996. With the introduction of the fifth and seventh schedule in the Arbitration & Conciliation Act, there has been substantial increase in the number of challenges in India. Furthermore, in view of section 14 and 15 of the Arbitration and Conciliation Act, 1996, the Hon ble Court has power to terminate the mandate of an Arbitrator if such Arbitrator become de-jure or de-facto unable to perform his duty and substitute the arbitrator. Also as per section 29A(6) of the Arbitration and Conciliation Act, the Hon ble Court can substitute an Arbitrator at the time of extending the time to complete the arbitration proceedings maximum by six months. 16. What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings? In case of a truncated tribunal, a substitute arbitrator can be appointed by either of the parties by moving an application under Section 15 Arbitration & Conciliation Act, 1996. In case of a truncated tribunal, the tribunal cannot continue with the proceedings. 17. Are arbitrators immune from liability? There is no provision under the Arbitration & Conciliation Act, 1996 which provides any kind of immunity to the arbitrator. However, in general parlance, while challenging the Award of the Arbitrator, an Arbitrator is not liable before the Hon ble Court. 18. Is the principle of competence-competence recognised? What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement? The principle of Kompetenz Kompetenz is well recognized in India under the Section 16 of Arbitration & Conciliation Act, 1996 which explains the competence of arbitral tribunal to rule on its jurisdiction.
The party wants to challenge the jurisdiction of the Tribunal, has to file the application under section 16 of the Arbitration and Conciliation Act, 1996 prior to filing of his defence to the substance of the matter. Merely a party participated in the process of appointment of arbitrator, does not debar him from challenging the jurisdiction of the Tribunal. In appropriate cases, the Tribunal can also condone the delay in filing such application. If the Tribunal rejects the plea regarding challenge to its own jurisdiction, then the Tribunal has to proceed with passing the Award and such Award can be challenge under section 34 of the Arbitration and Conciliation Act, 1996. If the Tribunal allows the plea regarding challenge to its own jurisdiction, then the aggrieved party can file an appeal before the Hon ble Court under section 37 of the Arbitration and Conciliation Act, 1996. At present after coming force of the amendment to the Arbitration and Conciliation Act 1996 in 2015, there is an increase in number of challenge. 19. How are arbitral proceedings commenced? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware? In India, arbitration is commenced by serving a notice of dispute to the opposite party inter alia invoking arbitration. For commencement of any arbitration, there has to be existence of dispute between the parties, which can be determined through arbitration. However, for the institutional arbitrations, the party need to follow the process as per the particular Rules of such institution. As per section 21 of the Arbitration and Conciliation Act, 1996, unless otherwise agreed by the parties, the arbitral proceedings, in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
The limitation prescribed under the Limitation Act 1963 is three years from the date on which the cause of actions arose. Meaning thereby, a party can invoke arbitration within three years from the date on which dispute arose between the parties. 20. What happens when a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate? Can they order third parties to participate in arbitration proceedings? The arbitral tribunal has the power to proceed ex parte in a scenario if any of the parties fail to participate. Furthermore, as per section 25 of the Arbitration and Conciliation Act, 1996 if the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited. Section 8 of the Arbitration and Conciliation Act, 1996 provides that where a dispute is covered under the arbitration agreement and still a party approaches the Hon ble Court, the Hon ble Court will refer the parties to Arbitration. In case of International Arbitration, as per section 45 of the Arbitration and Conciliation Act, 1996 the Hon ble Court can refer the parties to arbitration, when there exist a valid and enforceable arbitration agreement between the parties. Additionally, as per section 89 of the Code of Civil Procedure, 1908, the Hon ble Court has power to refer the parties to arbitration. The Courts or the Tribunal do not have any powers conferred upon them as per the Arbitration & Conciliation Act, 1996 to order third parties to participate in arbitration proceeding. However, at the same time, it can be noted that for the purpose of interim relief, the Court/Tribunal can direct impleadment of a third party for effective implementation of the interim order.
21. In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings? There is no provision where a state or state entity to invoke state immunity. 22. In what instances can third parties or non-signatories be bound by an arbitration agreement or award? There is no provision which confers powers to the tribunal or the local court to bound any third party or signatory to arbitration. However, at the same time, it can be noted that for the purpose of interim relief, the Tribunal can implead a third party for effective implementation of the interim order. 23. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal? Under the Arbitration & Conciliation Act, 1996, there are two fold of interim measure available i.e. one by the Hon ble Court under section 9 of the Arbitration and Conciliation Act, 1996 and other by the Tribunal under section 17 of the Arbitration and Conciliation Act, 1996. As per the new amendment, a party may seek for interim measures before the Court before the commencement of the arbitration. However, after that, it is mandatory for the tribunal to be constituted within 90 days from the date of such order passed by the Court.
Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence? 24.
As per section 19 of the Arbitration & Conciliation Act, 1996, the rules of Evidence Act are not applicable in arbitration. However, there are various judicial pronouncements, which provide that the broad principles of evidence will be applicable in arbitration. Like the onus to prove a particular fact is on the person, who has stated such fact. The normal rules relating to examination of witness including the rules relating to cross examination is also applicable in arbitration. The tribunal may also seek assistance from the Court in obtaining evidence under Section 27 of the Arbitration & Conciliation Act, 1996. 25. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings? The Arbitration & Conciliation Act, 1996 provides that the arbitrator(s) should be impartial and independent. The same is governed by the fifth and seventh schedule as previously discussed. In general practice, for the counsels, the ethical codes and other professional standards are governed under Advocates Act 1961. 26. How are the costs of arbitration proceedings estimated and allocated? As per Section 31A of the Arbitration & Conciliation Act, 1996, the Court or the Arbitral Tribunal shall have the discretion to determine: (i) Whether costs payable by one party to another; (ii) The amount of such costs; and (iii) When such costs are to be paid. Costs are explained as the:
(i) The fees and expenses of the arbitrators, Courts and witnesses (ii) Legal fees and expenses; (iii) Any administration fees of the institution supervising the arbitration; and (iv) Any other expenses incurred in connection with the arbitral or Court proceedings and the arbitral award. For the determination of the costs, the tribunal has to take into consideration four factors (a) the conduct of all the parties, (b) whether a party has succeeded in the case, (c) whether the party had made a frivolous counter-claim leading to delay in the disposal of the arbitral proceedings; and (d) whether any reasonable offer to settle the dispute is made by a party and refused by the other party. 27. Can pre- and post-award interest be included on the principal claim and costs incurred? The arbitral tribunal can award pre-and post-award interest on the principle claims, however, for the costs, it has to be post-award interest. 28. What legal requirements are there for the recognition of an award? The legal requirement in India for the recognition of the award: (i) The Original or copy (duly authenticated in the manner required by the law of the country in which it was made) award should be signed by all members, reasoned and must state the place and date of the award.
(ii) The original arbitration agreement duly certified copy (iii) Such evidence which may be necessary to prove that the award is a foreign award (in case of a foreign award). 29. Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts? There is no provision under the Arbitration & Conciliation Act, 1996 which limits on the available remedies. 30. Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure? (i) Challenging or application to set aside a domestic award under Section 34 of the Arbitration and Conciliation Act, 1996: Grounds for Challenge: a) Party was under some incapacity b) Arbitration agreement was not valid under the law c) Party was not given proper notice of the appointment of an arbitrator d) Arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration e) The composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties If the Court finds that: a) That the subject matter was not capable of settlement or; b) Arbitral award in conflict with the public policy of India Award will be in conflict with the public policy of India only if: a) The making of the award was induced, or affected by fraud or corruption or was in violation of Section 75 b) It is in contravention with the fundamental policy of Indian law c) It is against the basic notions of moral and justice Procedure: Such appeal or challenge need to be filed within a period of 90 days from the date of receipt of such award, however, the Court has a power to extend the time for another 30 days, if sufficient cause has been shown. After the lapse of 120 days, the Courts have no power to entertain any challenge to the Award. The challenge to the Award needs to be filed before the competent Court which has territorial as well as pecuniary original jurisdiction. (ii) For Appeals under Section 37 of the Arbitration & Conciliation Act, 1996: a) Refusing to refer the parties to arbitration under Section 8; b) Granting or refusing to grant any measure under Section 9; c) Setting aside or refusing to set aside an arbitral award under Section 34
Appeal against an order by the Tribunal a) Accepting plea i.e. that the arbitral tribunal does have any jurisdiction under Section 16(2) b) Granting or refusing an interim measure under Section 17 (iii) Regarding Foreign Award, the Indian Court has no power to set aside or hear Appeal against that Award, however, at the time of execution, the Indian Courts have power to refuse the enforcement of such Foreign Award on the following grounds, as per section 48 of the Arbitration and Conciliation Act, 1996: Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that The parties to the agreement referred to in section 44 of the Arbitration and Conciliation Act, 1996 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; or (b) 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; or (c) 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 matters 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; or (d) 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 ; or (e) 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. (2) Enforcement of an arbitral award 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; or (b) the enforcement of the award would be contrary to the public policy of India. 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 or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. The test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute. (3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
31. Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)? The Arbitration and Conciliation Act, 1996 specifically provides for appeal against the award of the Domestic Tribunal. In India, it is settled principles of law that a party by way of contract cannot waive any statutory right or any agreement contrary to the statute is null and void to that extent. The doctrine of contractual estoppels is still not recognised in India. Therefore, a party cannot waive any rights of appeal or challenge to an award by agreement before the dispute arises. 32. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage? There is no provision where a state or state entity to invoke state immunity. 33. To what extent might a third party challenge the recognition of an award? There is no provision wherein a third party can challenge the award. 34. Have there been any significant developments with regard to third party funding recently? There is no significant development with regard to the third party funding in India. There is actually no rule or any law against/for third party funding currently in India
35. Is emergency arbitrator relief available? Is this frequently used? The emergency relief concept is very new to India. Although there is no specification laid under the Arbitration & Conciliation Act, 1996 but there are provisions both under the Delhi International Arbitration Centre under Rule 18A and under Mumbai Centre for International Arbitration under Rule 14. However, the Courts have jurisdiction to entertain an application for interim relief even prior to commencement of arbitration. 36. Are there arbitral laws or arbitration institutional rules providing for simplified or expedited procedures for claims under a certain value? Are they often used? With the new amendment act, parties may move an application under Section 29B of the Arbitration & Conciliation Act, 1996 for fast track procedure to adjudicate disputes. The award is to be made within 6 months from the date of arbitral tribunal. However, there has been no capping done to the amounts of the claims. 37. Have measures been taken by arbitral institutions to promote transparency in arbitration? Transparency in terms of appointment of independent and impartial arbitrator is being followed in India since long; however, after the amendment to the Arbitration and Conciliation Act, 1996, the procedure has now become much more transparent. 38. Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted? If so, how? There is no provision or any measures taken towards the diversity in the choice of the arbitrators and counsel. However, there are ongoing discussions taking place for foreign law firms to enter and practise in India.
39. Have there been any developments regarding mediation? Recently, the Hon ble Supreme Court of India and various Hon ble High Courts have opened Mediation Cell and the Courts are promoting mediation. Especially in the cases of civil dispute or matrimonial disputes, the Courts are encouraging the parties to explore the possibility of settlement through mediation. To promote settlement through mediation, some States has amended the existing Court Fees Act to the effect that if the dispute has been settled through mediation prior to the stage of trial, then the parties will get 100% refund of the Court Fees. 40. Have there been any recent court decisions considering the setting aside of an award that has been enforced in another jurisdiction or vice versa? As per the Arbitration & Conciliation Act, 1996 the Indian Courts have limited the New York Convention to the extent that the foreign awards can only be enforced and recognised and cannot be set aside. In the case of Phulechand Exports Limited vs. Patriot, (2011) 10 SCC 300, the Supreme Court held that that public policy under section 48 has to construed narrowly in contradiction to the meaning provided under section 34 of the Part I as the award under made thereunder under section 34 is not yet final and can be liable to be set aside under the provisions of Part I whereas the award under Section 48 is a final award that has attained finality and only requires enforcement. The Court stated further that the courts cannot act appellate jurisdiction over award. The Court finally categorically held that the enforcement of a foreign arbitral award can be refused on the ground of public policy only in case where the award is contrary to the fundamental policy of law or is contrary to interest of India or justice or morality.