In India, the scheme for enforcement of certain foreign arbitral awards is provided in Part – II of the Arbitration and Conciliation Act, 1996 (“the Arbitration Act”). Section 44 of the Arbitration Act defines a foreign award as “an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960”. For an arbitral award to be considered as a foreign award under Section 44 of the Arbitration Act, the said award is required to be made in pursuance of an agreement in writing to which the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“NYC”) applies and in a country that the Central Government has notified under Section 44.
While India has adopted a pro-enforcement approach with foreign arbitral awards, in this article, we will also be discussing the legislative background and the development of law over the years since 1923. Our analysis includes the judgment passed by the Supreme Court on 22 April 2020 in National Agricultural Cooperative Marketing Federation of India vs. Alimenta S.A. (“NAFED”).
I. HISTORICAL BACKGROUND
The Geneva Protocol of 1923 was drawn up on the initiative of the International Chamber of Commerce (“ICC”) under the auspices of the League of Nations.