Arbitration and Conciliation Act, 1996
Geneva Convention Awards: Sections 53 to 60
Chapter II of Part II gives effect to the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927, which were the international regime before the New York Convention replaced it. The Chapter survives for a narrow class of cases: Section 52 provides that it does not apply to an award to which Chapter I applies, so it operates only where the award comes from a State party to the Geneva Convention that is not party to the New York Convention. Its interest is largely comparative, because the differences between the two regimes show why the Convention of 1958 was thought necessary.
1. What Is a Foreign Award under Section 53
Section 53, Arbitration and Conciliation Act, 1996 In this Chapter, foreign award means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924, (a) in pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies, and (b) between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central Government, being satisfied that reciprocal provisions have been made, may by notification declare to be parties to the Convention set forth in the Third Schedule, and of whom the other is subject to the jurisdiction of some other of the Powers aforesaid, and (c) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may by like notification declare to be territories to which the said Convention applies, and for the purposes of this Chapter an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made. |
Three requirements distinguish this definition from Section 44. The parties must be subject to the jurisdiction of two different notified Powers, so it is not enough that the award was made in a notified territory. The award must have been made after 28 July 1924, the date of the Geneva Protocol. And the concluding words introduce the concept of finality: an award is not final if proceedings contesting its validity are pending where it was made.
2. Reference, Binding Effect and Evidence
- Section 54. Notwithstanding anything in Part I or in the Code of Civil Procedure, 1908, a judicial authority, on being seized of a dispute regarding a contract made between persons to whom the Protocol applies and including an arbitration agreement which is valid under that Protocol and capable of being carried into effect, shall refer the parties on the application of either of them to the decision of the arbitrators, and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative.
- Section 55. Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India. This is the counterpart of Section 46.
- Section 56. The party applying for enforcement must produce the original award or a duly authenticated copy; evidence proving that the award has become final; and such evidence as may be necessary to prove that the conditions in clauses (a) and (c) of Section 57(1) are satisfied. A translation certified as correct is required where the documents are in a foreign language.
⚠ The burden runs the other way Section 56 requires the party seeking enforcement to prove that the award has become final and that the conditions in Section 57 are satisfied. Under Chapter I the applicant proves only the matters in Section 47, and everything else is for the party resisting. This reversal of the burden, together with the requirement of proof of finality, is the practical difference between the two regimes, and it is what the New York Convention was designed to remove. |
3. Conditions for Enforcement: Section 57
Section 57(1) states the conditions that must be satisfied before a foreign award may be enforced under this Chapter.
- A valid submission. The award has been made in pursuance of a submission to arbitration which is valid under the law applicable to it.
- Arbitrable subject matter. The subject matter of the award is capable of settlement by arbitration under the law of India.
- A properly constituted tribunal. The award has been made by the arbitral tribunal provided for in the submission to arbitration, or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure.
- Finality. The award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appeal or pourvoi en cassation in the countries where those procedures exist, or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending.
- Not contrary to public policy or the law of India. The enforcement of the award is not contrary to the public policy or the law of India. The Explanation, inserted in 2015, confines the public policy limb in the same terms as Section 48, namely fraud or corruption, contravention of the fundamental policy of Indian law, and conflict with the most basic notions of morality or justice, with a second Explanation excluding a review on the merits.
Section 57(2) permits the court to refuse enforcement if it is satisfied that the award has been annulled in the country in which it was made; that the party against whom it is sought to be used was not given notice of the arbitration proceedings in sufficient time to enable him to present his case, or, being under a legal incapacity, was not properly represented; or that the award does not deal with the differences contemplated by or falling within the terms of the submission, or contains decisions on matters beyond its scope. Where the award has not covered all the questions submitted, Section 57(3) permits the court, if it thinks fit, to postpone enforcement or to grant it subject to such guarantee as it may decide.
4. Enforcement and Appeal: Sections 58 to 60
- Section 58. Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of the Court. The consequence is the same as under Section 49: one proceeding, and execution under the Code of Civil Procedure, 1908.
- Section 59. An appeal lies from an order refusing to refer the parties to arbitration under Section 54, and from an order refusing to enforce a foreign award under Section 57. No second appeal lies, though the right to appeal to the Supreme Court is preserved.
- Section 60. Nothing in this Chapter prejudices any rights which a person would have had of enforcing in India any award or of availing himself in India of any award if this Chapter had not been enacted.
5. The Two Conventions Compared
The four principal differences, and the provision that decides which chapter applies
Basis | Geneva Convention, Chapter II | New York Convention, Chapter I |
|---|---|---|
Definition | Section 53: parties subject to the jurisdiction of two different notified Powers; award made after 28 July 1924 | Section 44: award made in a notified reciprocating territory on or after 11 October 1960 |
Burden | Section 56: the applicant proves finality and the conditions in Section 57 | Section 47: the applicant produces the award, the agreement and proof that it is a foreign award; the rest is for the respondent |
Finality | The award must have become final where made; not final if proceedings contesting validity are pending | No such requirement; the resisting party must show under Section 48(1)(e) that it is not binding or has been set aside |
Structure | Conditions for enforcement in Section 57(1), with additional grounds of refusal in Section 57(2) | Grounds of refusal only, in Section 48 |
Public policy | Enforcement must not be contrary to the public policy or the law of India | Contrary to the public policy of India, as confined by the Explanations |
Appeal | Section 59 | Section 50 |
⚠ Why the Geneva regime was replaced The requirement that the party seeking enforcement prove finality in the country of origin meant, in practice, obtaining a declaration there and then presenting it abroad, a double exequatur. That, with the burden on the applicant to establish every condition, made enforcement slow and uncertain. The New York Convention reversed the burden, abolished the requirement of a prior declaration, and confined the grounds of refusal to a closed list. Section 52 gives the later regime priority, so Chapter II now governs only the residue. |
6. Related Topics and Provisions
Topic or provision | Connection |
|---|---|
New York Convention Awards: Sections 44 to 52 | The regime that displaced this one |
Grounds for Refusing Enforcement: Section 48 | The closed list of grounds, compared with the conditions in Section 57 |
Enforcement of a Foreign Award: Sections 47 to 49 | The single proceeding and the deemed decree |
Historical Development of Arbitration Law in India | The Arbitration (Protocol and Convention) Act, 1937 and its repeal |
Second and Third Schedules, A&C Act, 1996 | The texts of the Geneva Protocol and Convention |