Describe the provisions as regards Geneva Convention Awards given in the Indian Arbitration and Conciliation Act, 1996.
Sections 53-60 of the Indian Arbitration and Conciliation Act, 1996 contain the following provisions as. regards Geneva Convention Awards.
Section 53 contains the definition of foreign award. It provides that a foreign award means an aribtral award on differences relating to matters considered as commercial under the law in force in India made after July 28, 1924:
- In pursuance of an agreement for arbitration to which the protocol set forth in the Second Schedule applies,
- Between persons of whom one is subject to the jurisdiction of some one of such powers of the Central Government, being satisfied the reciprocal provisions have been made, may, by notification in the Official Gazette declare to the 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
- In one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by like notification, declare to the territories to which the said Convention applies.
It provides further that 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.
Section 54 empowers the judicial authority to refer parties to arbitration. It provides that irrespective of whatever is contained in Sections 2-43 of the Act, 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 Section 53 applies and including an arbitration agreement, shall refer the parties to the decision of the arbitrators. The arbitration agreement referred to above may refer to present or future differences, but must be capable of being carried into effect.
The judicial authority can refer the matter to arbitration, on the application of either of the parties, or any person claiming through or under any of the parties. Further, 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 makes provisions as to when foreign awards are binding. It provides that any foreign award which if enforceable under the Geneva Convention, 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 defense, set off or otherwise in any legal proceedings in India. Further, any reference to enforcing a foreign award is to be construed as including references to relying on an award.
Section 56 contains provisions as regards production of evidence. It provides that the party applying for the enforcement of a foreign award, at the time of application produce before the court the following:
- The original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made.
- Evidence proving that the award has become final.
- Such evidence as may be necessary to prove that the conditions mentioned in clauses (a) and (c) of Sub-section (1) of Section 57 are satisfied.
Where any document required to be produced as above, is in a foreign language the party seeking to enforce the award has to 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.
Section 57 contains conditions for enforcement of foreign awards. It provides that in order that a foreign award may be enforced under Geneva Convention, it is necessary that:
- The award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereof.
- The subject-matter of the award is capable of settlement by arbitration under the law of India.
- 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.
- 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.
- The enforcement of the award is not contrary to the public policy or the law of India.
In general, the award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption [Sub-section (i)].
Further, even if the five conditions given above are fulfilled, enforcement of the award shall be refused if the court is satisfied that:
- The award has been annulled in the country in which it was made.
- 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.
- 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.
However, 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 decade [Sub-section (2)].
Sub-section (3) provides that 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 or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent Tribunal.
Section 58 provides that where the court is satisfied that the foreign award is enforceable under the provisions of Sections 53-57, the award shall be deemed to be a decree of the court.
Section 59 contains provisions as regards appeals. It provides that an appeal shall lie from the order refusing: (a) to refer the parties to arbitration under Section 54 and (ii) to enforce a foreign award under Section 57. The appeal is to be made to the court authorized by law to hear appeals from such order. No second appeal shall lie from an order passed in appeal under this section. However, this does not affect any right to appeal to the Supreme Court.
Section 60 provides that the provisions of Sections 53-59 shall not prejudice any rights which any person would have had of enforcing in India for any award or of availing himself in India of any award if these provisions had not been enacted.