Appointment Of Arbitrator In International Commercial Arbitration By HC Does Not Vitiate Award: Delhi High Court

The Delhi High Court Bench of Justice C. Hari Shankar has held that the appointment of the Arbitrator in an International Commercial Arbitration (“ICA”) by the Chief Justice of the High Court, does not vitiate the impugned award. The bench held that the objection to the appointment of the arbitrator should have been raised during the arbitration proceedings. Since the parties failed to do so, they were deemed to have waived their right to object. Brief Facts of the case: Cross...

Court Cannot Go Into Merits While Enforcing Foreign Award U/S 48 Of Arbitration Act: Bombay High Court

The Bombay High Court bench of Justice Arif S Doctor has held that jurisdiction of enforcement court under section 48 of the Arbitration is very limited and while enforcing the award the court cannot go into the merits of the case. Brief Facts This petition has been filed seeking enforcement of an award under part II of the Arbitration Act. This award was passed by an International Court Arbitration, London by which the petitioner was awarded a sum of Euro 2.45 million and costs. ...

Enforcement Of Foreign Award Cannot Be Refused U/S 48 Of Arbitration Act Unless It Is Against Public Policy: Chhattisgarh HC

The Chhattisgarh High Court bench of Justice Deepak Kumar Tiwari has held that enforcement of a foreign award cannot be refused under section 48 of the Arbitration Act unless it is shown that the award is against the public policy of India. The court further observed that even during Covid-19 pandemic, the Banking Sector continued to provide essential services and in the Notification, said Sector is under exception, so the award(s) could not be said to be contrary to public policy of...

Determining 'Seat' In International Arbitration : Supreme Court Takes Shift From 'Closest Connection Test', Says Express Designation Of Place Matters

In a key ruling on International Commercial Arbitration, the Supreme Court held that when an arbitration agreement grants non-exclusive jurisdiction to a foreign court, that court is considered the "seat of arbitration." The Court reaffirmed the BALCO principle that Indian courts lack supervisory jurisdiction under Part I of the Arbitration & Conciliation Act, 1996, for arbitrations seated abroad.Taking a shift from the 'Close Connection Test' to determine the seat of the arbitration, the...

Enforcement Court U/S 48 Of Arbitration Act Can Refuse To Enforce Foreign Award But Cannot Set It Aside: Delhi High Court

The Delhi High Court Bench of Mr. Justice Jasmeet Singh affirmed that the power to set aside a foreign award lies only with the courts at the seat of the arbitration, which exercise primary/supervisory jurisdiction over the matter. Even if grounds under Section 48 of the Arbitration Act can be made out, the Court being the enforcement court and having only secondary jurisdiction over the foreign award cannot set aside the award but may only “refuse” its enforcement.Brief FactsThis is a petition...

Principle Of Judicial Non-Interference Is Fundamental To Both Domestic & International Arbitral Proceedings: Delhi High Court

The Delhi High Court Bench of Justice Subramonium Prasad observed that it is well settled that the principle of judicial non-interference in arbitral proceedings is fundamental to both domestic as well as international commercial arbitration and that the Arbitration Act is self contained code. In this case, a petition under section 11(5) of the Arbitration and Conciliation Act (Act) was filed seeking appointment of a sole arbitrator. Brief Facts An agreement to sell and purchase...

Court Has Power To Grant Anti-Enforcement Injunction Against Proceedings In Foreign Court Which Threaten Arbitral Process Initiated In India: Delhi High Court

The Delhi High Court bench of Justice C. Hari Shankar has held that when proceedings in a foreign court, or a decree issued by a foreign court, threaten the arbitral process that may be initiated in India, the court has the authority under Section 9 of the Arbitration Act to restrain the party from continuing with the foreign proceedings or enforcing the potentially prejudicial decree. The bench held that: “Though one, as noted, need actually look no further, the power to grant an...

How To Determine Conversion Of Arbitral Award In Foreign Currency To Indian Currency? Supreme Court Explains

In a significant judgment relating to International Commercial Arbitration, the Supreme Court has decided the two important questions on the enforcement of an arbitral award expressed in foreign currency to Indian Currency.The two questions that appeared for the Court's consideration were:Firstly, what is the correct and appropriate date to determine the foreign exchange rate for converting the award amount expressed in foreign currency to Indian rupees? The Court said that the relevant date...

Single Judge Of Commercial Division Has Jurisdiction Over Original Applications In International Commercial Arbitration: Calcutta High Court

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that original applications related to International Commercial Arbitration are to be entertained by the Single Judge of the Commercial Division. The High Court held that the Commercial Courts Act, 2015 defines the Commercial Division and the Commercial Appellate Division distinctly. The Commercial Division, comprised of a Single Judge as per Section 4(1), handles original applications and appeals arising from...

Enforcement Of Foreign Arbitral Award, Repeated Non-Compliance; Rajasthan High Court Sentences Director Of Company Civil Imprisonment

The Rajasthan High Court bench of Dr. Justice Nupur Bhati has ordered the director of a company to one month of civil imprisonment for failing to disclose its assets in the enforcement of a foreign arbitral award. The High Court with its prior judgment ordered the foreign award to be enforceable and executable as a decree of the court. For the enforcement and execution of this decree, Mamta Hygiene Products Pvt Ltd (Respondent) was directed to disclose its assets by filing an affidavit...

[Arbitration Act] Enforcement Of Foreign Awards Should Not Be Declined On Composition Of Tribunal If Not Raised Before Tribunal Or Seat Court: Delhi High Court

The Delhi High Court bench of Justice Prateek Jalan held that enforcement of foreign awards should not be declined on grounds relating to the composition of the tribunal, which could have been raised before the Tribunal and before the seat Court, but were not so raised. It held that the judgment debtor did not object, even at the stage of appointment, on this ground. The bench held that: “This argument is quite evidently an afterthought, intended only as speculative litigation with...

Misconceived Section 9 & Section 11 Applications; Bar Should Take Necessary Steps, Spare Courts Of 'Unpleasant Duty': Calcutta High Court

The Calcutta High Court single bench of Justice Ravi Krishan Kapur held that it is for members of the Bar to introspect and take necessary steps and spare the Courts of the unpleasant duty. The decision came while reviewing applications presented before the Commercial Court and High Court, which were held to be beyond their jurisdiction. Specifically, the Commercial Court was held to be not empowered to entertain applications under Section 9 of the Arbitration and Conciliation Act,...