IND Arbitrating and Mediating Disputes

India - Legal framework

Local languageYear

In your country, is commercial arbitration governed by a consolidated law encompassing substantially all aspects of commercial arbitration?

If Yes, please indicate the applicable chapter or statute and the year(s) when it was adopted.

Is that statute based on the language of the UNCITRAL Model Law on International Commercial Arbitration?

Is that statute based on the language of the UNCITRAL Model Law on International Commercial Arbitration?

In your country, is commercial arbitration governed by scattered provisions in different laws or other legislative instruments?


Local languageYear

Local languageYearIs/are the law(s) available online through a government-supported website?

Please indicate the Internet address of any other private websites.

YearIs your country party to the ICSID Convention?

If Yes, please indicate the relevant statute and the year when it was adopted.

If Yes, please indicate the relevant statute and the year when it was adopted.

If Yes, please indicate the name of the designated authority.

If Yes, please indicate the relevant provisions and the years when they were adopted.

In your country, is commercial arbitration governed by other codes or legislative provisions governing only procedural aspects of commercial arbitration in your country (particularly on enforcement)?

If Yes, please indicate the applicable provision(s) and the years when they were adopted.

If Yes, please indicate the Internet address of any public institution’s website.

Has your country ratified the New York Convention on the recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 that entered into force on June 7, 1959?

Has your country ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards?

If Yes, please indicate the relevant conventions and the year(s) when they were ratified.

Does your country have a law on investment, which provides for arbitration between the State and/or State entities and foreign investor(s)?

Is there a public authority designated to handle administrative, logistical and substantive issues related to foreign investors’ disputes with the State and/or a State entity?


Local languageIf Yes, please specify if it is relevant to mediation or conciliation or both.

Year

Local languageYear

Please state the laws/codes related specifically to arbitration between foreign investors and the State and/or State entity.

Does your country have a consolidated law encompassing substantially all aspects of commercial mediation or conciliation?

If Yes, please specify if it is relevant to mediation or conciliation or both, and indicate the applicable provision(s) and the years when they were adopted.

If Yes, is that statute based on the language of the UNCITRAL Model Law on International Commercial Conciliation?

Please describe, if applicable any significant ways in which your national mediation or conciliation statute differs in substance from the UNCITRAL Model Law.

In commercial disputes where court proceedings have been instituted, do the laws of your country provide for court referrals of cases to mediation or conciliation?

If Yes, please indicate the applicable rules and the year(s) when they were adopted.

India - Legal frameworkPlease specifiy for what type of cases and/or in what circumstances.

Please indicate the Internet address of any other private websites.

Please specify, if relevant, the name of the institution to which such cases are usually refered.

If possible, please specify what percentage of cases referred to mediation or conciliation are settled.

Is/are the law(s) on mediation or conciliation available online through a government-supported website?

If Yes, please indicate the Internet address of any public institution’s website.

India - Legal frameworkComments:

If Yes, do these institutions also administer mediation and/or conciliation?

If more than one institution, please give an estimate number of institutions.

Please mention the name of your most commonly used institution.

Does this institution have its own rules?

Does this institution have an official website? If Yes, please indicate the Internet address.Is the following information available on its website: Arbitration rules:

Mediation and/or conciliation rules:Model arbitration clause:Model mediation and/or conciliation clause:

Procedure to appoint arbitrators:

Are there any institutions administering commercial arbitrations in your country?

If No, are there any mediation and/or conciliation institutions in your country?

Does your most commonly used institution administer commercial arbitration?

If possible, please estimate the number of arbitration cases carried out within the past 24 months.

Does your most commonly used institution administer mediation and/or conciliation?

If possible, please estimate the number of mediation/conciliation cases carried out within the past 24 months.

If No, indicate the rules used by your institution (e.g., UNCITRAL Rules), if any.

Information on how to bring the arbitration case before the institution (e.g., form and content of the request):

Information on how to bring the mediation or conciliation before the institution:

India - Legal frameworkProcedure to appoint mediators/conciliators:

Costs of the mediation or conciliation:Do the rules of this institution include rules on the taking of evidence?

In this institution, is there a roster of arbitrators or mediators/conciliators?

The percentage of foreign individuals: The percentage of women:

Please indicate the major types of dispute that are resolved online:

Costs of the arbitration proceedings (e.g., administrative costs, estimation of arbitrators’ fees):

May parties choose to conduct the arbitration proceedings in a foreign language in domestic arbitration?

If Yes, and in the event the information is accessible, please indicate: The number of individuals on the roster:

If Yes, can parties choose arbitrators/mediators outside of the institution’s roster?

Are the arbitrators on the institution formally certified (by your institution or another certification body)?

Are the mediators in the institution formally certified (by your institution or another certification body)?

Is online Alternative Dispute Resolution (also called electronic ADR) available in your country?

If Yes, please list the most important online centers and their official websites:

Are there any other professional/industry bodies or initiatives in your country that promote arbitration or mediation and/or conciliation (e.g., arbitration associations, chambers of commerce)?

If Yes, please give details, including the website address of each organizations:

Is fast-track arbitration an available method of dispute resolution in your country?

If Yes, please list some of the arbitration centers that administer such arbitrations:


The constitution of the arbitral tribunal to the first procedural hearing:

Please specify the time limits and procedure of fast-track arbitration in your country:

Are there special arbitration or mediation/conciliation rules for certain industries administered by an arbitration institution in your country (e.g., construction)?

If Yes, please give some additional details on the relevant industries and rules:

Regarding the length of arbitration proceedings, how long would you estimate, in calendar days, the period to be from: The filing of the request for arbitration to the constitution of the arbitral tribunal:

The filing of the request for arbitration to the constitution of the arbitral tribunal (in the case of an international arbitration, if recognized by your country):

The constitution of the arbitral tribunal to the first procedural hearing (in the case of an international arbitration, if recognized by your country):


Clarifications:

Comments or clarifications

The first procedural hearing of the arbitral tribunal to the rendering of the arbitral award:

The first procedural hearing of the arbitral tribunal to the rendering of the arbitral award (in the case of an international arbitration, if recognized by your country):

26. How much would you estimate the average costs of the arbitration proceedings, constituting in the administrative costs of the arbitration institution

26. How much would you estimate the average costs of the arbitration proceedings, constituting in the administrative costs of the arbitration institution

26. How much would you estimate the average costs of the arbitration proceedings, constituting in the arbitrators' fees

26. How much would you estimate the average costs of the arbitration proceedings, constituting in the arbitrators' fees

27. In a mediation administered by your country’s most commonly used institution on a similar dispute (involving a supply agreement and with a claim of US$1000,000) that results in the settlement of a dispute by agreement, how long would you estimate, in calendar days, the period to be from the referral of the case to the institution to the appointment of the mediator



Comments:

Comments (on questions 11-28)

27. In a mediation administered by your country’s most commonly used institution on a similar dispute (involving a supply agreement and with a claim of US$1000,000) that results in the settlement of a dispute by agreement, how long would you estimate, in calendar days, the period to be from the appointment of the mediator to the settlement of the case

28. How much would you estimate the average costs of the mediation proceedings, constituting in the administrative costs of the mediation institution

28. How much would you estimate the average costs of the mediation proceedings, constituting in the mediator's fees


By email or fax (or by any other form of electronic telecommunication):

By oral agreement:

If Yes, please indicate the relevant provisions of your national laws.

Patent law disputes or other intellectual property disputes:Finance and banking activities (including securities transactions):Disputes related to insolvency, bankruptcy or liquidation:Tax and customs disputes (e.g., between tax authorities and tax payers):

Antitrust or unfair competition disputes:

Employment contracts:

Can the following methods of concluding an agreement constitute a binding arbitration agreement: By writing:

By conduct (e.g., by accepting to attend preliminary procedural hearings of the arbitral tribunal):

By an exchange of statements of claim and defense in which the arbitration agreement is mentioned and not denied by any of the parties:

By incorporation by reference (when the arbitration agreement is set out in a separate document that is referred to in the main agreement):

Do your national laws provide that an arbitration agreement can be severable from the main contract? In other words, if one party alleges that the main contract is invalid, may the arbitration agreement included in that contract nevertheless be deemed valid?

Could the following types of disputes be subject to arbitration under the laws of your country? Disputes involving rights over immoveable property located within your country:

Intra-corporate disputes ( e.g., disputes over decisions made by the executive bodies of a corporation or disputes involving shareholder arrangements):

Currency convertibility disputes (e.g., between national banks and retail foreign exchange transaction customers):

Please list any additional commercial matters not arbitrable under your national laws:

Under your national laws, are the State and/or State entities allowed to enter into arbitration agreements with foreign owned companies in connection with the following: Infrastructure contracts (e.g, construction contracts):

Contracts dealing with natural resources and energy (e.g., contracts dealing with water rights, mining, oil and gas, nuclear energy, etc.):

India - Legal frameworkServices contracts or agreements:Comments and clarifications:


If No, do the courts of your country draw such distinction in practice? If Yes, please provide relevant case-law.


The foreign ownership of a party to the arbitration:The company headquarters of a party is located in a foreign country:

The seat of arbitration, if outside your country:

Please list any additional criteria not listed above:Please indicate the relevant provisions of your national laws.

Do your national laws provide for a distinction between international and domestic arbitration?

If Yes, do your national laws provide different regulation for international and domestic arbitration?

Do your national laws refer to an economic definition of international arbitration (e.g., arbitration is international when elements of international trade are involved)?

Under your national laws, does the presence of any of the following factors mean that the arbitration should be considered as an international arbitration rather than a domestic arbitration: The place of registration of one party (a business entity) is outside your country:

The fact that a substantial part of the obligations of the commercial relationship between the parties is performed outside your country:

The fact that the subject-matter of the dispute is closely connected to a place outside your country:

The location or headquarters of the arbitration institution, if any, is outside your country:

If the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country:

Is only one of the criteria that you mentioned enough to make the arbitration international rather than domestic?

India - Legal frameworkComments (on questions 29-36)

Their legal qualifications (e.g., possible mandatory local bar qualification):

Their gender:

Their ability to speak the language of your country:

If there are other restriction(s), please explain:

Comments or clarifications:

Please indicate the relevant provisions of your national laws:

Under your national laws, may the parties choose any arbitrator(s) regardless of: Their nationality:

Their nationality (in the case of an international arbitration, if recognized by your country):

Their legal qualifications (e.g., possible mandatory local bar qualification) (in the case of an international arbitration, if recognized by your country):

Their gender (in the case of an international arbitration, if recognized by your country):

Their ability to speak the language of your country (in the case of an international arbitration, if recognized by your country):

Under your national laws, may the parties freely choose foreign counsel(s) not licensed to practice in your country, to represent them?

Under your national laws and in the case of an international arbitration, if recognized by your country, may the parties freely choose foreign counsel(s) not licensed to practice in your country, to represent them?

Do your national laws expressly provide that arbitrators must be independent?

Do your national laws expressly provide that arbitrators must be independent (in the case of an international arbitration, if recognized by your country)?

Do your national laws expressly provide that all arbitrators must be impartial?


Please indicate the relevant provisions of your national laws:


The choice of the language of the proceedings:

The choice of the law applicable to the merits of the dispute:

The nationality of the arbitrator(s) (i.e., foreign nationals):

The number of arbitrator(s):

Do your national laws expressly provide that all arbitrators must be impartial (in the case of an international arbitration, if recognized by your country)?

Under your national laws, is the arbitral tribunal allowed to issue interim measures?

Under your national laws, is the arbitral tribunal allowed to issue interim measures (in the case of an international arbitration, if recognized by your country)?

Under your national laws, may the parties freely choose to organize the arbitration proceedings without restriction concerning: The seat of the arbitration (i.e., seat outside of your country:

The seat of the arbitration (i.e., seat outside of your country) (in the case of an international arbitration, if recognized by your country):

The choice of the language of the proceedings (in the case of an international arbitration, if recognized by your country):

The choice of the law applicable to the merits of the dispute(in the case of an international arbitration, if recognized by your country):

The choice of an arbitration institution to administer their arbitration (even one that is outside of your country) or ad hoc proceedings:

The choice of an arbitration institution to administer their arbitration (even one that is outside of your country) or ad hoc proceedings (in the case of an international arbitration, if recognized by your country):

The nationality of the arbitrator(s) (i.e., foreign nationals) (in the case of an international arbitration, if recognized by your country):


The location of the hearings and procedural meetings (out of your country):

The applicable procedural rules (i.e., international rules):

The use of foreign counsel:

If there are other restriction(s), please explain:


The number of arbitrator(s) (in the case of an international arbitration, if recognized by your country):

The location of the hearings and procedural meetings (out of your country) (in the case of an international arbitration, if recognized by your country):

The applicable procedural rules (i.e., international rules) (in the case of an international arbitration, if recognized by your country):

The use of foreign counsel (in the case of an international arbitration, if recognized by your country):


Additional Comments or Clarifications (on questions 37-43)

Local language

If there is a difference of treatment between domestic and international arbitration that is not covered by the questions above, please explain:

In your country, is there a particular court or other designated authority specifically designated for arbitration cases (e.g., the President of the First Instance Tribunal in France, or the Commercial Court of the High Court Queens Bench Division in England)?

If Yes, please provide the name of the particular court(s) or other designated authority

May a judgment of a court that enforces or refuse to enforce an arbitration agreement or award be appealed to a higher court or courts?

India - Legal frameworkComments or clarifications

In practice, if two parties have agreed, in a valid written agreement, that any dispute between them must be resolved by arbitration and if one party brings a dispute to your domestic courts instead of going to arbitration, would the courts in your country most likely decline to hear the case and refer the parties to arbitration?

In practice and in the case of an international arbitration (if recognized by your country), if two parties have agreed, in a valid written agreement, that any dispute between them must be resolved by arbitration and if one party brings a dispute to your domestic courts instead of going to arbitration, would the courts in your country most likely decline to hear the case and refer the parties to arbitration?

Do the courts in your country, when asked to enforce an arbitration agreement, only control the validity of the arbitration agreement without going into the merits of the dispute?

In the case of an international arbitration (if recognized by your country), do the courts in your country, when asked to enforce an arbitration agreement, only control the validity of the arbitration agreement without going into the merits of the dispute?

Do the courts in your country recognize the principle of kompetenz-kompetenz, i.e. the jurisdiction of an arbitral tribunal to rule on its own jurisdiction (even when parties have objected to the existence or validity of the arbitration agreement)?

In the case of an international arbitration (if recognized by your country), do the courts in your country recognize the principle of kompetenz-kompetenz, i.e. the jurisdiction of an arbitral tribunal to rule on its own jurisdiction (even when parties have objected to the existence or validity of the arbitration agreement)?

India - Legal frameworkPlease provide the name of the relevant laws and, if possible, case-law.



Ordering the appearance of witnesses:

Ordering the appearance of experts:

Please provide the name of the relevant laws and, if possible, case-law:


Under your national laws, can the courts in your country assist the arbitration process by appointing an arbitrator when a party is defaulting?

Under your national laws and in the case of an international arbitration (if recognized by your country), can the courts in your country assist the arbitration process by appointing an arbitrator when a party is defaulting?

Under your national laws, can the courts in your country assist the arbitration process by: Ordering the production of documents:

Under your national laws and in the case of an international arbitration (if recognized by your country), can the courts in your country assist the arbitration process by: Ordering the production of documents:

Ordering the appearance of witnesses (in the case of an international arbitration, if recognized by your country):

Ordering the appearance of experts (in the case of an international arbitration, if recognized by your country):

In practice, do your courts usually assist the arbitration process by issuing injunctions?

In practice, do your courts usually assist the arbitration process by issuing injunctions (in the case of an international arbitration, if recognized by your country)?

Under your national laws, can your courts assist the arbitration process by ordering interim measures if the arbitral tribunal has not yet been constituted (e.g., if no nomination is made by a party or parties):

Under your national laws, can your courts assist the arbitration process by ordering interim measures if the arbitral tribunal has not yet been constituted (e.g., if no nomination is made by a party or parties) (in the case of an international arbitration, if recognized by your country):



Please provide the name of the relevant laws and, if possible, case-law

Under your national laws, can your courts assist the arbitration process by ordering interim measures once the arbitral tribunal is constituted:

Under your national laws, can your courts assist the arbitration process by ordering interim measures once the arbitral tribunal is constituted (in the case of an international arbitration, if recognized by your country):

In practice, do your courts usually assist the arbitration process by ordering interim measures?

In practice, do your courts usually assist the arbitration process by ordering interim measures (in the case of an international arbitration, if recognized by your country)?

Can a party request the enforcement of an award granting interim relief. (e.g., seizing of assets) to prevent immediate and irreparable injury?

Can a party request the enforcement of an award granting interim relief. (e.g., seizing of assets) to prevent immediate and irreparable injury in the case of an international arbitration (if recognized by your country)?

India - Legal frameworkAdditional Comments or Clarifications (on questions 44-54)

Local languageIs this a specialized court (not a general court of first instance)?

If Yes, please name the court(s):Local language

Local languageAmount in US$

Amount in local currency

Please provide the name of the court(s) that have jurisdiction to issue judgements recognizing or enforcing foreign arbitral awards in your country

May a judgment of that court granting recognition or enforcement of the award be appealed to a higher court or courts?

Is there a specific amount that triggers the jurisdiction of your national courts?

If Yes, please name the court(s) and the amount in US$ and local currency above which the court(s) has (or have) jurisdiction

Under your national law, may a foreign arbitral award be denied recognition or enforcement by a court in your country on any of the following grounds: Incapacity of a party:

India - Legal frameworkInvalidity of the arbitration agreement:Lack of a due process:Award exceeds the terms of the submission to arbitration:Irregularity in the arbitral procedure or composition of the tribunal:Award not binding, set aside or suspended where issued:Subject matter of the dispute not arbitrable under the laws of your country:

If Yes, do the courts of your country interpret public policy restrictively?

Please specify:

Error of law:

Enforcement of the award contrary to your country’s public policy (e.g., corruption or fraud):

India - Legal frameworkIf Yes to any of the above, please explain:

India - Legal frameworkPlease provide a complete list of any other possible ground(s) on which a foreign arbitral award may be denied recognition or enforcement by your domestic courts:

India - Legal frameworkPlease provide the name of the relevant laws and, if possible, case-law.

If Yes, please explain

If Yes, # of calendar days for this procedural step

Can a party submit, as an evidence to support a request for recognition and enforcement of a foreign arbitral award: A certified copy of the original foreign arbitral award instead of the authenticated original award:

A certified copy of the arbitration agreement instead of the authenticated original arbitration agreement:

Is there any other type of evidence that a party must submit with that respect (e.g., the entire contract containing the arbitration agreement)?

When seeking enforcement, does a party have to apply first for the recognition of the foreign arbitral award?

India - Legal frameworkCompetent Court(s) or other designated authority

Is a hearing conducted?

If Yes, # of calendar days for this procedural stepCompetent Court(s) or other designated authorityIs a hearing conducted?

If Yes, # of calendar days for this procedural stepCompetent Court(s) or other designated authority








Once the recognition is granted, can the losing party file a motion with the court to appeal the decision?

When seeking enforcement, does a party have to file a request for enforcement?

Once the enforcement is granted, can the losing party file a motion to appeal the decision before judicial courts?

Once the enforcement is granted, can the losing party file a motion to appeal the decision before administrative courts?

Can the losing party file a motion to appeal the decision before constitutional courts?

Once a final decision enforcing an arbitral award is obtained, does the winning party need to obtain a writ of execution to attach the losing party’s assets?

Please mention any additional procedural step(s) needed for the enforcement of a foreign arbitral award in your country and not listed above:

In practice, do your national courts apply directly the New York Convention, if your country has ratified it?

India - Legal frameworkComments or clarifications

If Yes, please specify:

If Yes, please specify any such document

If a judicial court is competent, can the proceedings be ex parte (in the absence of the losing party)?

In practice, are parties required to submit documents, in addition to the award and the arbitration agreement (e.g., the translation of the request for arbitration)?

Based on your practice, are the courts of your country favorable to recognize and enforce foreign arbitral awards?

In particular, are the courts of your country favorable to recognize and enforce a foreign arbitral award in favor of a foreign-owned company against a domestic company?

India - Legal frameworkPlease provide relevant case-law

Additional Comments or Clarifications (on questions 55-72)

If Yes, please specify

Please mention any trend that you could identify as regard to enforcement of foreign arbitral awards before your national courts

Do your national laws explicitly provide that the parties can agee to limit or waive the grounds for setting aside or vacating arbitral awards issued in your country?

Do your national laws explicitly provide that a party can validly waive its right of appeal or to any other recourse in court?

Is there any expedited procedure that the parties could request, enabling your national courts to act expeditiously for certain kind of measures?

India - Legal frameworkIf Yes, please specify

If Yes, please specify in what circumstances:

Are there circumstances under which the courts of your country may recognize and enforce a foreign arbitral award that was set aside by the courts of the country where the award was rendered?

Would a party seeking enforcement of a foreign award in your country be subject to unreasonable fees or costs (e.g., unreasonable notarial, administrative translation or other fees)?

Does the mediation settlement need to be signed (endorsed) by a court in order to be enforced?

Under your national laws, does the mediation agreement have the legal power of a court order?

India - Legal frameworkIf No, how are mediation settlements enforced:




Are you aware of situation (s) in which your State and/or a State entity did not pay the amount due to a foreign party under a final foreign arbitral award?

Are you aware of situation (s) in which your country did not settle the amount due to a foreign investor under a final ICSID arbitral award?

Do your national laws allow for the enforcement of arbitral awards against State-owned assets or your central bank?



Additional Comments or Clarifications (on questions 73-83)Is ADR commonly used to resolve commercial disputes in your country?

Are the State and/or State entities granted any advantages over foreign-owned companies when party to a commercial arbitration with such companies?

Is the quality of the arbitration procedures and institutions in your country sufficient to provide for arbitrations?

Is the quality of the mediation and conciliation procedures and institutions in your country sufficient to provide for efficient mediations and conciliations?

Are there noteworthy trends in your country in the use of arbitration and/or mediation and conciliation to resolve domestic or international commercial disputes?

India - Legal frameworkComments

Please mention any official website providing information on international and domestic commercial arbitration

Yes

1996Yes

Yes

The Arbitration & Conciliation Act, 1996 and The Arbitration Act, 1940 (since repealed by the Arbitration and Conciliation Act, 1996) . The Act is a central statute that is applicable to the entire State of India, however, Part II is not applicable to the state of Jammu and Kashmir.

The Arbitration & Conciliation Act of 1996 (the Act) is based on UNCITRAL Model Law and does not have material difference with the UNCITRAL Model, to the exception of the following:Section 9 (Interim measures) enables a party to approach a competent court for interim relief before or during the arbitral proceedings or even after the award is pronounced, but before it is enforced. However, Article 9 of the Model Law does not permit recourse to a court for an interim measure after the award is pronounced.Section 16 provides that the arbitral tribunal can rule on its own jurisdiction, including any objection with respect to the existence or validity of the arbitration agreement. In particular, if the arbitral tribunal rejects an objection or plea regarding its jurisdiction, it can continue with the arbitral proceedings and make the award, which will not be appealable – but could be challenged by the same applicable court (which is unlike the position under the Model Law which provides for a recourse to a court from a decision of the arbitral tribunal rejecting a challenge to its jurisdiction). Section 36 (Enforcement) - This is a new provision which makes the award automatically enforceable as a decree without aid or intervention of the court. This provision travels beyond what is provided in Articles 35 and 36 of the Model Law under which an arbitral award becomes enforceable only upon application for its enforcement being made by a party and the application being allowed by the court.Section 37 (Appealable Orders) - This provision in the Act provides for appeals that may lie to a court from an order of the tribunal (as stated therein) whereas the Model Law has no such provisions.Section 39 (Lien on Arbitral Award And Deposits As To Costs) - The Model Law does not have a corresponding provision dealing with the same.Section 40 (Arbitration Agreement Not To Be Discharged By Death Of Party thereto) - An Arbitration Agreement is not extinguished by the death of any party to the agreement either as respects the deceased or any other party. On such death it is enforceable against the legal representative of the deceased, provided the right to sue or be sued survives.Section 41 (Provisions in case of Insolvency) - The Model Law does not deal with this topic.Further, as the Act has been enacted to cater to both domestic as well as international arbitrations, provisions have been added to facilitate the same. (eg. Sections 2(2), 2(3), 2(4), 2(5), 2(7), 42, 43, 66, and Part IV).Moreover, the Act includes provisions for enforcement of foreign awards as under the New York and Geneva Conventions. (Eg. Sections 44, 45, 46, 47, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60). The significant differences are in relation to appointment of arbitrators as set out in Section 11 and the application for setting aside arbitral award under Section 34. Indeed, Section 34 provides that domestic arbitration awards can be challenged and even set aside in courts. Section 48 provides that international awards can automatically be recognized, although enforcement may be refused in the courts (where as, in Model Law, an award shall have to be recognized AND enforced).Also unlike the UNCITRAL Model Law, the Arbitration and Conciliation Act, 1996 has defined international commercial arbitration, which is based more upon the status and place of residence of one or more of the parties (Section 2(1)(f)) than on the place of business, place of arbitration, place of performance of contract or agreement between the parties, as provided in the Model Law.The Arbitration Act does not include a provision similar to Article 1(2) of Model Law, which provides that the law, except Articles 8, 9, 35 and 36 of the Model Law, would apply only if the Arbitration takes place in the territory of the State. It also does not include a provision similar to Article 13(3) of the Model Law, enabling a party failing to remove an arbitrator to challenge the same arbitrator before domestic courts.

Yes

Code of Civil Procedure

1908Yes

http://business.gov.in/; http://indiacode.nic.in/;

http://www.ficci-arbitration.com/htm/acts.pdfYes

No

NoNo

No

Provisions of Part I of the Act apply to such arbitrations unless they are inconsistent with the particular provisions of the relevant central and state acts, in which case the provisions of those acts will apply. Arbitration is compulsory when a statute enforces the consent of one of the parties. Some of such statutes are - (1) The Aircraft Act, 1934; (2) The Antiquities and Art Treasuries Act, 1972; (3) The Co-operative Societies Act, 1912; (4) The Cantonements Act, 1924; (5) The Defense of India Act, 1971; (6) The Electricity (Supply) Act, 1948; (7) The Industrial Disputes Act, 1947; (8) The Indian Trusts Act, 1882; (9) The Land Acquisition Act, 1894; (10) The Presidency Towns Insolvency Act, 1909; (11) The Religious Endowments Act, 1863; (12) The Telegraph Act, 1929; etc. Also: the Indian Contract Act of 1872.

Yes

Part III (Sections 61 to 86) of The Arbitration and Conciliation Act, 1996.

Conciliation

1996Yes

Yes

Code of Civil Procedure, 1908

1908, as amended in 2002

The Act with regards to conciliation has been based on the UNCITRAL Conciliation Rules, but differs as follows:Section 61(2) states that certain disputes may not be submitted to conciliation if not permitted by virtue of any law (no similar provision in the Rules).Section 63(1) provides that there shall be 1 conciliator unless the parties agree that there shall be two or three conciliators (the Model Law permits the parties to agree upon two or more conciliators). Section 72 allows the parties, either on their own initiative or at the invitation of the conciliator to submit suggestions for the settlement of dispute (the Model Law does not have a similar corresponding provision). Section 73(4) states that the conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties (no similar provision in the Rules).Section 74 has given the settlement agreement the same status and effect as that of an arbitration award.Sections 78 and 79 deal with the costs and deposits payable by the parties in advance and / or at the time of termination of conciliation (the Model Law does not address the same).

Yes

http://indiacode.nic.in/

http://www.netlawman.co.in/acts/arbitration-conciliation-act-1996.php

Section 89 of the Code of Civil Procedure enables a court to refer certain disputes for settlement outside the court: I) Where it appears to the Court, that there exists elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for: (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute had been referred: (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.Section 89 of the Code of Civil Procedure, 1908 prescribes that in cases where the court is of the opinion that a dispute can be settled, the court may frame the terms of settlement and refer the dispute for arbitration, conciliation, mediation or to a Lok Adalat. While the court has to power to make such references, it is unclear whether the consent of parties is required for such reference. Once a dispute is referred under this section, the court retains the supervisory jurisdiction over the matter and the parties to the dispute continue as parties to the settlement process.

Such cases may be referred to mediation forums set up at the initiative of various civil courts or certain fast-track courts (called Lok Adalats whose framework is governed under the Legal Services Authority Act, 1987).

Yes

Yes

The Indian Council of Arbitration; Indian Chamber of Commerce.

Yes

Not available.

Yes

Not available.

ICA Rules of Arbitration

Yeswww.icaindia.co.inYes

YesYesYesYes

Yes

Yes

The growing trend in India is to refer more and more disputes to mediation /conciliation for settlement outside the court. As a pro-mediation step, in the recent past, some of the High Courts in India have set up mediation centres (Delhi High Court mediation centre, Gujarat High Court mediation centre, Karnataka High Court mediation centre, etc.). Legal practitioners have been always encouraging settlement of disputes outside the court whenever possible.

(i) Indian Council of Arbitration, New Delhi; (ii) Indian Institute of Arbitration and Mediation, Bangalore; (iii) Bombay Chamber of Commerce, Mumbai; (iv) Indo-German Chamber of Commerce; (v) Indian Merchants' Chamber; (vi) LCIA India (inaugurated on April 18, 2009); (v) ) Construction Industry Arbitration Council (CIAC); (vi) Federation of Indian Chambers of Commerce and Industry; (vii) Bengal Chamber of Commerce and Industry; (viii) Indian Merchants' Chamber; (ix) Bengal National Chamber of Commerce and Industry

YesYes

YesYes

Yes

Yes

2457 as on July 26, 2011

2% approx20-30% approxNo

No

No

Yes

Yes

Assisted Negotiation, Mediation and Arbitration - http://odrindia.com/index.php

Yes

Yes

Indian Council of Arbitration

Federation of Indian Chambers of Commerce and Industry ("FICCI") (www.ficci.com), International Chamber of Commerce (www.indiaonline.org/arbitration.htm). Also: Securities Exchange Board of India, Bombay Stock Exchange

Yes

1 to 3 months

1 to 3 months

2 weeks to 1 month

2 weeks to 1 month

Rule 44 of the ICA rules provides for Fast Track Arbitration, wherein the Parties may opt for Fast Track Arbitration and request the arbitral tribunal, before the commencement of the arbitration proceedings, to decide the reference in a fixed time frame of 3 to 6 months or any other time agreed between the Parties, according to the Fast Track Arbitration procedure, as follows: (1) The arbitral tribunal will be authorised to decide the dispute on the written pleadings, documents and written submissions filed by the Parties without any oral hearings. (2) The arbitral tribunal shall have power to call for nay further information/ clarification from the parties in addition to the pleading and documents filed by them. (3) An oral hearing may be held if both the parties make a joint request or if the Arbitration tribunal considers an oral hearing necessary in any particular case. (4) If an oral hearing is held, the arbitral tribunal may dispense with any technical formalities and adopt such procedure as it deems appropriate and necessary for economic and expeditious disposal of the case.

The Maritime Arbitration Rules of the Indian Council for Arbitration are used in case of arbitrations concerning the Marine industry. The Construction Industry Arbitration Council (CIAC) is another initiative for speedy resolution of construction/infrastructure related disputes. CIAC has been set up as an arbitration centre in India, as a result of cooperation between the Construction Industry Development Counil (India) and the Singapore International Arbitration Centre.Also: the Indian Council of Arbitration, Cotton Corporation of India, Construction Industry Arbitration Council, ecurities Exchange Board of India, Bombay Stock Exchange

6 to 18 months

12 to 24 months

Such costs are dependant on the amount in dispute. Accordingly, such costs may range from INR 30,000 to INR 3,15,000 and upwards.




Rules 31-37 of the ICA Arbitration rules for details on expenses during arbitration by ICA.

2 weeks to 3 months

Comment for question 25.1: As per the procedure for appointment of the arbitral tribunal given in Section 11 of the Act, in an arbitration with 3 arbitrators each party may nominate one arbitrator within 30 days, who together further appoint a presiding arbitrator within 30 days. The Chief Justice of the relevant High Court may appoint an arbitrator at the request of a party. The Chief Justice of India (Supreme Court) may assume this responsibility in case of an international arbitration. Comment for question 25.2: As per the rules of ICA, the first hearing should be convened within 15 days of the receipt of the complete reply of the respondent. As per the Act, the time period may be agreed upon by the parties or determined by the tribunal for submission of statement of claim and defence. Comment for question 25.3: As per the rules of the ICA arbitrators should settle cases within a period of 6 months where the amount of claim exceeds INR 10,000,000 and within 4 months when it is less than that. While the Act does not specify fixed time frames for disposal of cases, any matter referred to the ICA may comply with the rules and guidelines issued thereunder.

1 to 3 months

Such costs are dependant on the amount in dispute. Accordingly, such costs may range from INR 30,000 to INR 3,15,000 and upwards

Such costs are dependant on the amount in dispute. Accordingly, such costs may range from INR 30,000 to INR 3,15,000 and upwards

Please note that the costs cannot be accurately predicted and would depend upon the amount of claim and the institution.

The ICA uses the same rules for Arbitration in case of mediation/conciliation save certain changes thereto. As a consequence the timeline in so far as applicable to appointment of the mediators are similar to those in case of arbitrators, since, the parties have the 'option' to request the arbitrators to act as mediators/conciliators.

The Act recognizes only the process of conciliation and not mediation. A conciliation proceeding can be initiated in India when one of the parties to the dispute arising out of a legal relationship invites the other party to get the dispute resolved through conciliation and the said request is accepted by the other party. However, if the other party rejects the invitation for settlement through conciliation, no such proceeding would get initiated. Even if no response is sent within thirty days to the invitation, it would be deemed that the said request is rejected. The number of conciliators generally appointed for a conciliation proceeding is one unless the parties agree and give mutual consent to have more conciliators than one. Under the Act, the parties are also entitled to suggest the terms of settlement which would be discussed by the parties. Suggestions could be given by the conciliator on such terms for their observations but the conciliator cannot impose a settlement as conceived by him on the parties. In case the parties arrive at a settlement during the discussion and the proceeding, a settlement agreement is drawn up which would have the same effect and status as an arbitral award on agreed terms as envisaged under section 30 of the Act. The settlement agreement can then be enforced as a decree. A party desiring to avail of the remedy could resort to the said procedure during pre-litigation and even during the pendency of litigation. If the effort fails, the parties can always go back to litigation. However, during the pendency of a conciliation proceeding a party is not entitled to pursue a litigation proceedings.

Yes

Yes

NoNo

Yes

Yes

Yes

Yes

Yes

YesYesNoNo

NoNo

Yes

Yes

Yes

Section 16 (1) (a) of the Arbitration & Conciliation Act, 1996. In addition, the arbitration agreement is severable from the main agreement as was held by the Hon'ble Supreme Court in India in the case of Firm Ashok Traders v. Gurumukh Das Saluja [reported in AIR 2004 SC 1433].

Non payment of admitted and acknowledged debt; Industrial disputes; Matrimonial Disputes, other than settlement of terms of divorce or separation; Probate proceedings; Guardian appointments; Motor Vehicle accident compensation; all matters which fall in the jurisdiction of specified statutory Tribunals; the Question of title to immovable property in a foreign country; and of course all criminal matters.

Yes

Yes

Yes

No

Yes

YesYesNo

No

NoNo

No

The Government of a foreign countrySection 2(1)(f) of the Arbitration & Conciliation Act, 1996

Yes

Part I of the Arbitration and Conciliation Act, 1996, applies to arbitrations held in India and Part II of the Arbitration and Conciliation Act, 1996, provides for enforcement of arbitrations held in a New York or Geneva Convention country.

Section 2(1)(f) of the Arbitration and Conciliation Act, 1996, defines "international commercial arbitration" as "an arbitration relating to disputes arising out legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is: (a) an individual, who is a national of, or habitually resident in, any country other than India; or (b) a body corporate who is incorporated in any country other than India; or (c) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or (d) the Government of a foreign country."

Yes

Yes

Yes

Yes

YesYes

NoYes

Generally arbitrations are in EnglishYes

Yes

Yes

Yes

Yes

The Act does not impose any conditions regarding the appointments of the parties’ counsels. As a result any individual, foreign or national, has the possibility to be appointed as a party representative.

Section 12 of the Act which deals with the independence and impartiality of an arbitrator will also apply to the arbitral tribunal presiding over an international commercial arbitration held in India. Indeed, Section 12(3) in Part I of the Act is applicable to international commercial arbitrations as well and therefore the grounds stated above apply to international commercial arbitration too. Section 12 confers a duty upon the arbitrator to disclose at the time of his appointment, after appointment and throughout the arbitral proceeding, any circumstances which are likely to give rise to reasonable apprehension as to his impartiality or independence. Further, the section also enumerates impartiality as one of the grounds on which the appointment of the arbitrator can be challenged.

Yes

Yes

No

Yes

No

YesYes

YesNo

Yes

Yes

YesYes

Yes

Section 12 of the Act which deals with the independence and impartiality of an arbitrator will also apply to the arbitral tribunal presiding over an international commercial arbitration held in India. Indeed, Section 12(3) in Part I of the Act is applicable to international commercial arbitrations as well and therefore the grounds stated above apply to international commercial arbitration too. Section 12 confers a duty upon the arbitrator to disclose at the time of his appointment, after appointment and throughout the arbitral proceeding, any circumstances which are likely to give rise to reasonable apprehension as to his impartiality or independence. Further, the section also enumerates impartiality as one of the grounds on which the appointment of the arbitrator can be challenged.

Upon Section 17 of the Act, the arbitral tribunal has the possibility, upon request of a party, to grant interim relief in respect of the subject matter of the dispute. It also has the possibility to request a party to provide appropriate security in connection with a measure ordered by the tribunal.

Yes

Yes

Yes

YesYes

YesYes

In view of the recent decisions of the Supreme Court of India and the Gujarat High Court, the applicable curial/procedural law shall always be of the country where the arbitration is conducted, i.e. law of the seat of arbitration.

On the number of arbitrators: The parties to an arbitration agreement are free to determine the number of arbitrators, provided that such number is not an even number. In case the parties are unable to agree on the number of arbitrators, the arbitral tribunal shall consist of one arbitrator. As per s. 10 of the Arbitration and Conciliation Act, 1996, parties are free to determine the number of arbitrators, provided that such number shall not be an even number. However, in a recent judgement, the High Court of Delhi has held that Section 10 is not a mandatory provision and therefore an arbitral tribunal can comprise an even number of arbitrators.On the appointment of foreign counsels: In India, only a licensed practitioner is permitted to represent as an Advocate of a party. In all other cases, a party can appear "in person". However, the Act does not impose any conditions regarding the appointments of the parties’ counsels. As a result any individual, foreign or national, has the possibility to be appointed as a party representative.

No

Yes

The Act governs both domestic and international commercial arbitrations held in India through Part I. Part II of the Act governs enforcement of certain foreign arbitral awards. The following are the differences between domestic and international arbitrations under the Act: On the appointment of arbitrators: The Act allows the parties to freely decide and agree upon the mechanism for the appointment of arbitrators. However, if the parties fail to agree upon the arbitrators, the Act permits the parties in case of domestic arbitration to approach the Chief Justice of a High Court and in the case of an international arbitration the Chief Justice of the Supreme Court of India for making the appointment. It is pertinent to note that in case of an international commercial arbitration held in India , the Chief Justice of India has the right to appoint an arbitrator of any other nationality other than the nationalities of parties to the arbitration agreement. It is not mandatory for the Indian courts to appoint an arbitrator of different nationalities but however, it may consider the appointment if there is an objection by one party to the appointment of an arbitrator belonging to the nationality of the opposite party.On the applicable law to the dispute: In an international commercial arbitration, the arbitral tribunal has to resolve the dispute in accordance with the rules of law designated by the parties as applicable to the subject matter of the dispute and failing any such designation, by the rules of law that the tribunal considers appropriate in the circumstances. However, in a domestic arbitration, the tribunal has to resolve the dispute in accordance with the substantive law for the time being in force in India (Section 28). In an international arbitration, the arbitral tribunal shall decide the dispute (i) in accordance with the rules of law designated by the parties as applicable to the substance of the dispute; (ii) 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 law rules; (iii) failing any designation of the law by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute. The Arbitration and Conciliation Act, 1996 provides for choice of substantive law in international commercial arbitration while the same is not available in domestic arbitration. In the Act, both domestic and international commercial arbitration are governed by the same Act; save that in a domestic arbitration, the arbitrator shall decide the dispute in accordance with the substantive law in force in India; while in an International commercial arbitration, such decision shall be in accordance with the rule of law designated by the parties as applicable, and in case the parties do not so designate, the arbitrator shall apply the rule of law it considers to be appropriate. Section 45 on foreign arbitral awards empowers the Court to retain jurisdiction over a dispute rather than referring the dispute to be settled through arbitration if the arbitration agreement is null and void, inoperative or incapable of being performed.

According to section 2(1)(e) of the Act, only principal courts of original jurisdiction in a district and High Courts in their ordinary original civil jurisdiction are designated to hear aritration cases

Yes

Yes

Yes

Yes

Yes

Yes

In case of an arbitration agreement, such appeal is provided for in Section 37 of the Act. In case of 'refusal' to enforce a foreign award, an appeal lies under Section 50. Also, under Section 50, no second appeal is provided against an order of the court enforcing the foreign award. However, this does not bar the right of the party to approach the Supreme Court by way of a Special Leave Petition.

In terms of Section 16 of the Act, an arbitral tribunal has the authority to decided upon its own jurisdiction, including determining the existence or validity of an arbitration agreement. Any objection to the jurisdiction of the arbitral tribunal has to be raised by the parties no later than the submission of defence, unless the specifically permitted by the arbitral tribunal.Section 16 of the Arbitration and Conciliation Act, 1996. The following is an in-exhaustive list of Cases that have upheld the principle of kompetenz-kompetenz in India: (i) National Agricultural Co-op Marketing Federation India Ltd. v. Gains Trading Ltd. [(2007) 5 SCC 692], (ii) Gas Authority of India Ltd. v. Spie Capag S.A. and others [AIR1994 Delhi 75], (iii) Renusagar Power Plant Co. Ltd. v. General Electric Co. [AIR 1994 SC 860], (iv) State of U.P. v. Allied Constructions [2003 (3) Arb. LR 106 (SC)]. PAG Raju v. PVG Raju.SBP and Company v. Patel Engineering AIR 2006 SC 450 wherein it was held that in a case where an Arbitral Tribunal has been constituted by the parties, the Arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act

Contributors comments: Please note that the Supreme Court of India has ruled in the case of SBP v. Patel Engineering [reported in (2005) 8 SCC 618] that in instances when the Supreme Court of India or one of the various High Courts of a state appoints an arbitral tribunal, under Sections 11(9) and 11(6) respectively, the said function of the courts is a judicial function and not a mere administrative function (overruling previous decisions to the contrary). This implies that the courts, when seized of a matter under the said sections, shall also adjudicate on issues like the existence of a valid arbitration agreement. Further, the Supreme Court held that once the tribunal has been constituted, it is not allowed to rule on its own jurisdiction (thus avoiding an anomalous situation whereby the arbitral tribunal, constituted by a court acting judicially, overrules the court by ruling to the effect that it has no jurisdiction to hear the matter.) Please note that Sections 11(9) and 11(6) of the Act state that the Supreme Court or any of the High Courts may appoint the arbitrator(s) in case there is no procedure elected by the parties or if the agreed procedure has failed or by default of either or both of the parties in following the procedure.

Yes

Yes

Yes

Yes

YesYes

YesYes

Yes

Yes

Yes

Yes

As per Section 27 of the Arbitration and Conciliation Act, 1996, the Arbitral Tribunal or a party with the approval of the Arbitral Tribunal, may apply to the Court for taking assitance in taking evidence. The application shall specify (a) the names and addresses of the parties and the arbitrators; (b) the general nature of the claim and the relief sought; (c) the evidence to be obtained, in particular (i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required; the description of any document to be produced or property to be inspected.

Section 9(ii)(d) of the Act states that a party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court for an interim measure of protection in respect of an interim injunction or the appointment of a receiver.

Yes

Yes

Yes

Yes

Yes

Yes

Section 9(ii)(d) of the Act states that a party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court for an interim measure of protection in respect of an interim injunction or the appointment of a receiver.

Baby Arya v. Delhi Vidyut Board, AIR 2002 Del 50.However, it seems that there is no mechanism envisaged for the enforcement of all the orders under Section 17 of the Act, as has been held in the case of M.D. Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd. AIR 2004 SC 1344.

Bombay High Court

Uchha NyayalayNoYes

High Courts and the Supreme Court of India

Yes

Bombay High Court is US$ 1,000 (Ratio of US$ : INR is 1:50) and of the Delhi High Court is US$ 40,000 (Ratio of US$ : INR is 1:50)

Bombay High Court is INR 50,000 and of the Delhi High Court is INR 20,00,000.

Yes

Under the Act, a party to an arbitration agreement can approach the court or it can approach the arbitral tribunal for seeking interim relief. Section 9 enables a party to approach a competent court before or during the arbitral proceedings or even after the award is pronounced, but before it is enforced. However, the Supreme Court of India has held in that in case of international commercial arbitration held outside India the 'general provisions' of Part I would apply unless the parties expressly or impliedly exclude the applicability of the same (Bhatia International v Bulk Trading). The arbitral tribunal also has powers under Section 17 of the Act to make an order for any interim measure of protection. However, Section 17 of the Act does not confer any power on the arbitral tribunal to enforce its interim orders. Third parties are not affected by such interim orders and that the order for interim measure comes to an end with the passing of the final award.Section 8 of the Act places a duty on the Courts to mandatorily refer the parties to the dispute to arbitration if an action is brought before it in a matter which is the subject of arbitration agreement provided a party so applies not later than when submitting his first statement on the substance of the dispute.

The pecuniary jurisdictions of courts are determined by their respective state enactments. Therefore the pecuniary jurisdiction of different courts differ from state to state.

YesYesYesYesYesYes

Yes

No

Yes

It has been seen that the courts in India have chosen to expand the scope of the term "public policy" by way of various judicial pronouncements. Although, all of such decisions have come under huge challenge and have become a huge topic of debate, the courts continue to interpret public policy in a wider sense. The recent judgments have tried to dilute such interpretations and aimed to interpret the term restrictively. It has been held in the case of ONGC v. Saw Pipes AIR 2003 SC 2629 that the term "public policy" should be given a wider meaning and an award would be considered contrary to public policy if it is opposed to: (a) fundamental policy of Indian law, (b) interests of India, (c) justice or morality and (d) if it is patently illegal. Thus, any alleged violation of the Indian law leads to the award being amenable to judicial review.In the case of Venture Global Engineering v. Satyam Computer Services Ltd. AIR 2010 SC 3371 it has been held that if anything is found in excess of jurisdiction and depicts a lack of due process, it will be opposed to public policy of India. Also very recently in Phulchand Exports v. OOO Patriot, the Supreme Court held that while dealing with enforcement of foreign arbitral awards, courts should widely interpret the ground of "public policy".

Section 48 of the Arbitration and Conciliation Act, 1996, states that enforcement of a foreign award may be refused if the party against whom such award is passed furnishes proof to the courts of any of grounds stated in para 57.1 to 57.8 below. Section 57 of the Act states that (1) In order that a foreign award may be enforceable under this Chapter, it shall be necessary that - (a) the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto; (b) the subject-matter of the award is capable of settlement by arbitration under the law of India; (c) 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; (d) 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 or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending; (e) the enforcement of the award is not contrary to the public policy or the law of India. Explanation.- Without prejudice to the generality of clause (e), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption. (2) Even if the conditions laid down in sub-section (1) are fulfilled, enforcement of the award shall be refused if the Court is satisfied that - (a) the award has been annulled in the country in which it was made;(b) the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented; (c) the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration: Provided that if the award has not covered all the differences submitted to the arbitral tribunal, the Court may, if it thinks fit, postpone such enforcement or grant it subject to such guarantee as the Court may decide. (3) If the party against whom the award has been made proves that under the law governing the arbitration procedure there is a ground, other than the grounds referred to in clauses (a) and (c) of sub-section (1) and clauses (b) and (c) of sub-section (2) entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.

Section 2(2) of Part I of the Indian Act states that: "This Part shall apply where the place of arbitration is in India".The Indian Supreme Court has an extensive interpretation of this provision and considers that Part I of the Act would apply to all arbitrations whether conducted within or outside India, on the basis that the Act does not mention that it should “only” apply to arbitration proceedings conducted in India. The rationale behind this is the general principle of Indian law that the jurisdiction of a court needs to be specifically excluded either by statute or by contract. Therefore, in India, the Arbitration Act could be found applicable to arbitrations conducted outside India unless the parties specifically agreed otherwise. As a result, a party is allowed to obtain interim measures from an Indian court despite the arbitration taking place outside India (Bhatia case) and Indian courts can set aside foreign awards on the same grounds (e.g., patent illegality) as are applicable to domestic awards (Venture Global case).Case-law: Bhatia International v Bulk Trading S.A. and Another, Venture Global Engineering v Satyam Computer Services.

Yes

Yes

Yes

Yes

6-18 months

Section 48 and 57 of the Arbitration and Conciliation Act, 1996The courts in India have been seen to widen the scope of "public policy" by various judicial pronouncements and hence giving parties to an arbitration agreement an additional ground to challenge an award. The landmark case in this regard was ONGC Ltd. vs. Saw Pipes Ltd. AIR2003SC2629 wherein the term scope of the term "public policy" was widened. Also, in the recent case of Venture Global Engineering Vs. Satyam Computer Services Ltd.AIR2008SC1061, the Supreme Court held that it is open to the parties to exclude the application of the provisions of part I by express and implied agreement, failing which the whole of part I would apply. Further, it held that to apply Section 34 to a foreign award would not be inconsistent with Section 48 of the 1996 Act, or any other provision of part II and that the judgment-debtor cannot be deprived of his right under Section 34 to evoke the public policy of India, to set aside the award. Thus, the extended definition of public policy cannot be bypassed by taking the award to foreign country for enforcement. National Ability S.A. v. Tinna Oil and Chemicals Ltd. [2008 (3) Arb LR 37 (Delhi)] saw the Delhi High Court hold that one should favour a pro-arbitration approach with respect to enforcement of Foreign Arbitral Awards; In SRP Industries v. GEA Process Engineering Ltd. [MANU/DE/0216/2009], the Delhi High Court held that if the 'illegality' is of a trivial nature, it cannot be held that the award is against public policy.Section 48 of the Act. ONGC v. Saw Pipes (Supreme Court) and Phulchand Exports v. OOO Patriot (Supreme Court) on grounds of public policy.

In respect of question no.59, in case the arbitration clause forms a part of a contract, the entire contract may have to be produced. Separately, in case the award or agreement to be produced is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India

The High Court of the state in which the award has to be enforced

YesYes

6-24 monthsHigh Courts or Apex CourtYesYes

30-90 daysPrincipal Civil court of original jurisdiction in a district; High Court in exercise of its original civil jurisdiction

YesYes

12-36 months

YesNo

No

Yes

6-12 monthsPrincipal Civil court of original jurisdiction in a district; High Court in exercise of its original civil jurisdiction

Yesthe foreign award needs to be stamped before enforcing by paying the requisite stamp duty.

No

Though there is no statutory appeal provided, an aggreived party may nonetheless approach the Supreme Court of India seeking leave to appeal from an order of the High Court granting enforcement of the award.

Yes

Yes

Yes

Yes

India requires ratified conventions and treaties to be enacted separately under domestic law. Therefore, although provisions may be derived from the New York Convention, the Arbitration and Conciliation Act, 1996 is the guiding document for Courts.The arbitral award passed under the New York Convention would be enforced in accordance with Chapter I of Part II of the Act read with the relevant provisions of the CPC.

The usual practice is that, the courts issue summons to the opposite party and in case the opposite party does not mark an appearance, courts do adjourn the proceedings few times and try to re-issue summons. But if the opposite party does not appear before the courts, ex-parte orders may be issued. Indeed, the Code of Civil Procedure, 1908 allows for any proceedings (which shall include proceedings for enforcement and execution) to be conducted ex parte after reasonable notice has been provided.

In case the award or agreement is produced in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in IndiaTranslations of the agreement, awards and pleadings in support of one's case are required to be submitted by the parties. Original or certified true copy of the arbitration agreement, such evidence as may be necessary to prove that the award is a foreign award, any other documents necessary to prove that the award is made in a bona fide manner.

No

No

Yes

Provisions of the Arbitration and Conciliation Act do not distinguish between the types of companies and a foreign-owned company may enforce a foreign arbitral award against a domestic company. Furest Day Lawson v. Jindal Exports (AIR 2001 SC 2293). National Ability S.A. v. Tinna Oil and Chemicals Ltd [2008 (3) Arb LR 37 (Delhi)], SRP Industries v. GEA Process Engineering Ltd. [MANU/DE/0216/2009], G.D. Engineering Construction v. H.P. Board Pvt. Ltd. [2009 (1) Shim LC 24] and Hemant Jalan v. Om Prakash Jalan [MANU/AP/0411/2008]. Penn Racquet Sports v. Mayor International, Phulchand Exports v. OOO Patriot, Fuerst Day Lawson Ltd. v. Jindal Export Ltd., AIR 2001 SC 2293.

No

No

Yes

No

As per Section 9 of the Arbitration and Conciliation Act, 1996, parties may apply for interim measures including injunctions. The procedure for injunctions are generally expeditious in most High Courts of various states. Also, Order XXXVII of the Code of Civil Procedure provides for a summary procedure for the following kinds of suits: (a) suits upon bills of exchange, hundies and promissory notes;(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising, (i) on a written contract, or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. We clarify that such summary procedure does not apply to arbitration matters before the court. Additionally, the courts may expedite the proceedings in a matter at their discretion if they deem it to be necessary.

No

No

Yes

Mediation proceedings in India do not enjoy the binding status that arbitration enjoys. However, if the parties to the dispute do come to a settlement during the mediation proceedings and the said settlement agreement is endorsed by a court, it enhances the terms agreed to therein and the agreement becomes a binding document. However, even if the agreement is not endorsed by a court and the parties have affixed their signs to it, in the event of deviation from the terms of the agreement, the aggrieved party may still approach the courts for its enforcement. The only difference being that the document will now have to be proved to be valid.Mediation Agreement will be treated as a contract and will be enforced accordingly under the Indian Contract Act, 1872.

Section 49 of the Indian Arbitration and Conciliation Act, which follows from the New York Convention, allows for enforcement wherever the Court is satisfied that the award is enforceable. No exception has been made with respect to State-owned assets.If a valid and enforceable arbitral award is passed against a state entity or a nationalized bank, then the same can be enforced against the assets of such entity/ bank.In purely commercial contracts, there is no restriction on attachment of assets owned by state-run entities. However, (in the rare scenarios) if the assets attached are of a state department or an entity which may own assets of vital national importance (for instance, power plants, oil and mineral sources), there is a possibility that courts may refuse attachment based on public policy and grant alternative relief. The awards are enforced against state entities in the similar way as other private entities, however when an award is enforced against a state entity the President of India is made the party.

Yes

Yes

Yes

Yes

Yes

The issue of state immunity might may arise in a few cases. There is authority designed for disputes between state agencies or government owned entities whose consent is required before proceeding with any type of dispute resolution.Contributor’s comment 1: Generally contracts with state departments or state-owned entities call for arbitration by officers of the said departments or entities. In our experience, there may be a slight advantage to such entities. The rules regarding the impartiality of the arbitrator(s) in such cases (mentioned in para 39.1 above) cannot be resorted merely on account of the fact that the arbitrator is connected with the entity. In this regard, the Supreme Court of India has held in the case of Transocean Shipping Agency Ltd. v. Black Sea Shipping [reported in AIR 1998 SC 707] that merely because a party has appointed one of its officers as an arbitrator does not make the award ipso facto invalid especially if the officer had not personally handled the disputed transactions and was impartial in his/her conduct. We may add that there is a de facto difficulty in proving impartiality and/or bias on the part of an arbitrator unless the bias is patent, especially if the other party was aware of the position of an arbitrator at the time of entering into the contract. Contributor’s comment 2: The State and/or State entities may have an advantage over foreign-owned companies while performing sovereign functions in the interest of the security of the State.

The Act, modelled on the lines of the UNCITRAL Model Law on International Commercial Arbitration, comprehensively covers both arbitration and conciliation. It makes provisions for an arbitral procedure which is fair, efficient and capable of meeting the needs of different kinds of disputes. It also ensures that the arbitral tribunal remains within its jurisdiction and conducts the arbitral proceedings by giving a fair chance to the parties before it. The Act also ensures minimal role of the courts in the arbitral process. Further, all awards passed by a competent arbitral tribunal are recognised and enforced as decrees of the court. Thus, the Arbitration and Conciliation Act, 1996 is an exhaustive statute governing arbitrations and conciliations in India. The grounds under which an award (domestic / international) can be set aside as under the Act are limited and well formed. However, the Court rulings have reduced the efficacy of the Act. The Courts needlessly interfere with arbitration process and awards. The purview of a challenge under 'public policy' has been widened and is now understood in the broad domestic sense rather than the narrow international sense. Further, international awards are also open for challenge in India. In our opinion the quality of arbitration procedure and institution are sufficient to provide fair and efficient arbitration, however the adhoc arbitrations are not concluded expeditiously. Institutional arbitrations are slowly gaining momentum in India. As mentioned earlier, we reiterate that the Indian law is more or less a mirror image of the UNCITRAL Model law on Arbitration. This has ensured that India has a stable basic structure vis-à-vis the law governing arbitration. Thus, all the safeguards required for ensuring a fair and efficacious arbitration are more or less present in the Indian context. We also have efficient arbitral institutions specialising in providing all required services for administering Alternate Dispute Resolution matters. Note - the Courts have by their recent rulings diminished the efficacy of the Act. Moreover, Indian parties usually prefer to opt for an ad hoc arbitration. Institutional Rules need to be more robust. Further the secretariat of the concerned Institution should be firm in its approach and process has to be expedited.Arbitration in India may be arranged by the parties themselves on ad-hoc basis or it may be conducted according to the rules of an arbitral institution. Arbitration under the rules of procedure of an arbitral Institution provides several advantages and helps in quicker disposal of cases. The professional experience and expertise available with an arbitral institution facilitates fair, efficient, economic and expeditious conduct of arbitrations and adds to the certainity and finality of the proceedings. Most of the institutions in India for arbitration aim for amicable settlement of disputes within a stipulated time period. The parties can request the arbitral tribunal before the commencement of the arbitration proceedings to settle the disputes within a fixed time frame.

India - Proceedings & enforcementAverage length of arbitration proceedings (days) 569Average length of recognition and enforcement proceedings (days) 1654

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IND Arbitrating and Mediating Disputes

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