"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, December 31, 2021

A Bit More on Reciprocal Arrangements under Section 44 of the 1996 Act

In the last decade (yes you read it right!) we wrote two posts (here and here) on the notifications relating to reciprocal arrangements under the Foreign  Awards (Recognition & Enforcement) Act, 1961 and the Arbitration and Conciliation Act, 1996. Thanks to inputs from readers, we were able to get hold of a few more notifications. In this post, we provide a consolidated overview of the notifications and the law on the subject. It would be great if readers could contribute to the list of notifications either by posting the notification's link on the comment box or by emailing it to lawbadri@gmail.com.

  1. Source: Justice Bachawat's Law of Arbitration & Conciliation (5th ed. 2010), P.2264 ff. List of countries notified under the Foreign  Awards (Recognition & Enforcement) Act, 1961 (p. 2296): The countries are Austria, Botswana, Bulgaria, Central African Republic, Chile, Cuba, Czechslovak Socialist Republic, Denmark, Ecuador, Arab Republic of Egypt, Finland, France, German Democratic Republic, Federal Republic of Germany, Ghana, Greece, Hungary, Italy, Japan, Kuwait, Republic of Korea, Malagasy Republic, Mexico, Morocco, Nigeria, The Netherlands, Norway, Philippines, Poland, Romania, San Marino, Spain, Sweden, Switzerland, Syrian Arab Republic, Thailand, Trinidad and Tobago, Tunisia, USSR, UK, United Republic of Tanzania, and USA.
  2. Source: Reply to RTI Application (here): Singapore, Malaysia, Canada, Australia, China, Hong Kong SAR and Macao SAR, Mauritius
Some Related Issues:

Whether Notifications issued under the Foreign  Awards (Recognition & Enforcement) Act, 1961 could be used for Awards after 1996 Act was brought into force?

Yes, guess so. Please see Section 85 which states: 

"85. Repeal and savings.—(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2) Notwithstanding such repeal,—
(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;
(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act." (emphasis added).

Whether precedents enforcing of foreign awards can be cited in the absence of tracing the relevant notifications?

Will not hurt making such an attempt. In the last post in 2018, we had noted:

"We spoke to some of the practitioners in the field. They say that none of the respondents had raised such an objection. Even if they raise such an objection, it would be possible to cite previous judgements where awards for such territories have been enforced. But the question is whether such an objection has been raised in the first place in those decisions?"

However, it is possible for a counter-argument (where applicable) that the objection regarding reciprocity was not taken before the court which enforcement a foreign award.

In any case, to address the information gap, it would be useful for courts deciding on enforcement of foreign arbitral awards to specify the seat of arbitration so that such precedents could be cited, in the absence of copy of notifications. We find that in several decisions enforcement foreign awards, courts have not been mentioning the seat/ place of arbitration. It would be useful if they did so. 

Some judgments mention the seat and courts in those cases have enforced foreign awards from seats not mentioned in the notifications issued under the 1996 Act (here). Some such judgments rendered in the last three years are as follows:

Switzerland: Pasl Wind Solutions Private Limited vs. GE Power Conversion India Private Limited (20.04.2021 - SC) : MANU/SC/0295/2021(strictly, not a decision enforcing a foreign award)

USA: International Nut Alliance LLC vs. Johns Cashew Company (09.12.2021 - KERHC) : MANU/KE/3139/2021 

Egypt: Angelique International Limited vs. Public Electricity Corporation and Ors. (23.06.2020 - DELHC) : MANU/DE/1290/2020  

UK: Glencore International AG vs. Hindustan Zinc Limited (08.06.2020 - DELHC) : MANU/DE/1238/2020 (London Court of International Arbitration-LCIA- Award enforced); Peniel Cashew Company and Ors. vs. Ahcom Sarl (30.10.2018 - KERHC) : MANU/KE/2997/2018 (CENTA award); C and C Maritime Pte. Ltd. vs. Advance Surfactants India Ltd. (24.01.2019 - DELHC) : MANU/DE/0280/2019.