Reciprocal Provisions under S 44 of the Arbitration & Conciliation Act, 1996

Over the last decade, we have been receiving queries regarding jurisdictions which are declared under Section 44(b) of the Arbitration and Conciliation Act, 1996. Readers have also sought copy of the notifications. This post seeks to put an end to all the queries. Available notifications can be accessed from here and here. The list of jurisdictions which are recognised through gazette notifications is given below. Rarely, awards/ arbitrations in some jurisdictions were indirectly recognised by courts even though the point regarding notification may not have been raised is also given. 

S. No.	Country/ Jurisdiction	Gazette Notification Ref.	Judgment Reference
1	Australia	Ministry of Law & Justice Notification No. SO 2252(E) dt. 12.09.2008
2	Austria	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972
3	Belgium	Ministry of Commerce & Supplies Notification No. S.O. 290 (E) dt. 28.04.1980
4	Botswana	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
5	Bulgaria	Ministry of Foreign Trade Notification No. S.O. 428 (E) dt. 14.06.1972
6	Canada	Ministry of Law & Justice Notification No. SO 327(E) dt. 26.03.2003
7	Central African Republic	Ministry of Commerce No. S.O. 85 (E) dt. 03.02.1983
8	Cuba	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
9	Denmark	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
10	Dubai		Mulheim Pipecoatings GmbH. vs. Welspun Fintrade Limited and Ors. (16.08.2013 - BOMHC) : MANU/MH/1285/2013
11	Ecuador	Ministry of Foreign Trade Notification No. S.O. 428 (E) dt. 14.06.1972
12	Egypt	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
13	Finland		Finnish Fund for Industrial Corporation Ltd. vs. VME Precast Pvt. Ltd. and Ors. (14.10.2020 - MADHC) : MANU/TN/5710/2020
14	France (Paris)		W.P.I.L. vs. NTPC Ltd. and Ors. (16.01.2009 - DELHC) : MANU/DE/0078/2009
15	German Democratic Republic	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
16	Ghana	Ministry of Commerce No. S.O. 282 (E) dt. 16.05.1973
17	Greece	Ministry of Foreign Trade Notification No. S.O. 428 (E) dt. 14.06.1972
18	Japan	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972	Aksh Optifibre Ltd. vs. Shin Etsu Chemical Co., Ltd. and Ors. (12.01.2005 - RAJHC) : MANU/RH/0032/2005
19	Kuwait	Ministry of Commerce No. S.O. 86 (E) dt. 03.02.1983 & Ministry of Law & Justice Notification No. GSR894(E) dt. 06.12.2022 (published on 22.12.2022), MANU/LAFF/0034/2022
20	Malagasy Republic	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
21	Malaysia	Ministry of Law & Justice Notification No. SO 754(E) dt. 11.08.2000
22	Mauritius	Ministry of Law & Justice Notification No. SO 1881(E) dt. 13.07.2015
23	Mexico	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
24	Morrocco	Ministry of Commerce No. S.O. 282 (E) dt. 16.05.1973
25	Nigeria	Ministry of Commerce No. S.O. 282 (E) dt. 16.05.1973
26	Norway	Ministry of Foreign Trade Notification No. S.O. 428 (E) dt. 14.06.1972
27	People's Republic of China (including Hongkong SAR &  Macao SAR	Ministry of Law & Justice Notification No. SO 580(E) dt. 19.03.2012
28	Philippines	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972
29	Poland	Ministry of Commerce Notification No. S.O. 1238 dt. 29.02.1968
30	Rumania	Ministry of Foreign Trade Notification No. S.O. 428 (E) dt. 14.06.1972
31	San Marino	Ministry of Commerce Notification No. S.O. 84 (E) dt. 03.02.1983
32	Singapore	Ministry of Law & Justice Notification No. SO 542(E) dt. 06.07.1999
33	Sweden	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972
34	Switzerland		Pasl Wind Solutions Private Limited vs. GE Power Conversion India Private Limited, [2021] 4 S.C.R. 532 : MANU/SC/0295/2021(strictly, not a decision enforcing a foreign award)
35	Syria	Ministry of Commerce, Supplies & Co-operation Notification No. S.O. 2920 dt. 25.09.1978
36	Tanzania	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972
37	Thailand	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972
38	The Netherlands	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972
39	Trinidad & Tobago	Ministry of Commerce No. S.O. 42(E) dt. 07.01.1978
40	Tunisia	Ministry of Commerce No. S.O. 282 (E) dt. 16.05.1973
41	United Kingdom	Ministry of Commerce No. S.O. 4302 dt. 25.10.1976
42	United States of America	Ministry of Foreign Trade Notification No. S.O. 732 (E) dt. 24.11.1972	International Nut Alliance LLC vs. Johns Cashew Company (09.12.2021 - KERHC) : MANU/KE/3139/2021; Integrated Sales Services Limited  vs.  DMC Management Consultants Ltd. and Ors. (18.04.2016 - BOMHC) : MANU/MH/0557/2016

 In case readers come across other jurisdictions relating to this, please let us know.

Defective Petitions to Challenge Arbitral Awards: Delhi High Court Settles the Law

 There have been numerous judgments on whether particular classes of defects in petitions under Section 34 of the Arbitration and Conciliation Act, 1996 (1996 Act) for challenging arbitral awards make the petitions "non-est" in the eyes of law. Consequence of holding a petition invalid in the eyes of law means that time specified for filing challenge petitions in S. 34 would continue to run, notwithstanding filing of such incurably defective petitions. 

A Full Bench of the Delhi High Court has, on 07.02.2025, settled the law in Pragati Construction Consultants v UoI, 2025:DHC:717-FB. Para 97 of the judgment summarises the decision of the Full Bench on points of law and is quoted below:

"97. We summarise our answer to the Reference, as under:

a) Non-filing of the Arbitral Award alongwith an application under the Section 34 of the A&C Act would make the said application liable to be treated and declared as non-est, and the limitation prescribed under Section 34(3) of the A&C Act shall continue to run in spite of such filing;

b) Mere non-filing of the Statement of Truth or a defect in Statement of Truth being filed, that is, including with blanks or without attestation, would not ipso facto, make the filing to be non-est. However, if accompanied with other defects, the Court may form an opinion, based on a cumulative list of such defects, that the filing was nonest;

c) Similarly, non-filing or filing of a defective Vakalatnama; the petition not being signed or properly verified; changes in the content of petition being made in form of addition/deletion of facts, grounds, or filing of additional documents from arbitral record, or filing with deficient court fee, each of these defects, individually would not render to filing of an application under Section 34 of the A&C Act to be treated and declared as non-est. However, presence of more than one of such defects may, in the given set of facts involved in a case, justify the conclusion of the Court that filing of the application was never intended to be final and therefore, is liable to be declared non-est."   

LIBOR Cessation, Implied Terms & Alternative Reference Rate: English High Courts Decides

LIBOR cessation is one of the most important issues in commercial law in the recent times. With trillions of dollars with contracts indexed to LIBOR and its recent cessation, it is important that courts world over deal with it in a fair manner. This article may be looked at for how international arbitral tribunals have dealt with LIBOR cessation.

Recently, the English Court in Standard Chartered plc v. Guaranty Nominees Limited, [2024] EWHC 2605 (Comm) has dealt with the issue. As has been noted in the aforementioned Some jurisdictions provided legislative solutions by prescribing the alternative reference rate through statute or delegated legislation. In some jurisdictions, courts read in an implied term of alternative reference rate. Standard Chartered plc v. Guaranty Nominees Limited decided by the English High Court is an example of the latter approach. Here, the English Court decided that where the three month USD LIBOR ceased or was incapable of operation, a reasonable alternative rate to it was an implied term.

The crucial question is how should courts (and arbitral tribunals) arrive at the alternative reference rate. Standard Chartered provides some guidance on the criteria:

• such rate is to be based on “robust underlying market”;
• while determining such alternative reference rate, courts should “have regard to the liquidity of that underlying market over time, market functioning issues, usefulness to all market participants and the ability to produce and maintain the alternative rates…”
• Such rate should “be able to test the rate by reference to historical data…”;
• It should “consider resilience to changing market conditions, structures and regulations; placing weight on the diversity of market participants, the stability of their participation and their credit quality over time; how changes in participation could affect the benchmark; the transparency of the benchmark and the need for an ongoing ability to assess the rate’s quality…”According to the court, such a rate was the “CME Term SOFR and adding the ISDA Spread Adjustment”.

The decision of the English High Court provides important guidance on two aspects. One, on the legal basis for implying a term on alternative reference rate to 3 months USD LIBOR, and two, determination of the alternative reference rate. 

In House Counsels as Judicial Members in Tribunals such as NCLT and NCLAT

 Please refer to the recent decision of the Hon'ble Supreme Court of India in SBI v. The Consortium of Mr. Murari Lal, 2024 INSC 852, where it has been held:

"183. The Members often lack the domain knowledge required to appreciate the nuanced complexities involved in high-stake insolvency matters in order to properly adjudicate such matters. It has been noticed that the benches of NCLT(s) and NCLAT don’t have the practice of sitting for the full working ours. They are particularly lacking in the capacity to manage the growing number of cases and giving undivided attention required in such matters. There are serious issues in the manner in which the insolvency matters are listed. There is no effective system in place before the NCLTs for urgent listings."

Since liberalisation and globalisation, and after the advent of national law schools, there has been a considerable expansion in the legal profession. One such set of legal professionals are the in house counsels. They are not just legal professionals but also combine as excellent management professionals.

Unfortunately, the Indian legal system has not been able to tap this excellent resource for selection in tribunals and courts. On the one hands higher courts such as High Courts and Supreme Court keep complaining about the lack of professionalism in the tribunal members but on the other hand, excellent and well-qualified professionals are, it is understood, not eligible for being appointed as judicial members of tribunals. It appears as per the current state of law that they are at the most eligible for appointment as technical members.

In this background, the following two solutions could possibly be considered: One, In house counsels could be considered for selection as technical members, in the short run, so that the tribunals are equipped with people who understand not only the mechanics of law but also of business, and two, in the long run, the relevant statutes/ rules can be amended to enable appointment of in house counsels as judicial members of such tribunals.