A Proposal for Dissertation on

Enforcement Of Arbitral Award In International

Commercial Arbitration : A Comparative Study With India
And Singapore
Submitted in Partial Fulfillment of the Requirement
for the Award of Degree ofMaster of Laws

SUBMITTED BY
Akshay G. Mulange

UNDER THE GUIDANCE OF

Ms. Shruti Das
Asst. Professor,
Vishwakarma University, Pune

SUBMITTEDTO
VISHWAKARMAUNIVERSITY,
PUNE- 411048
2023-2024

Signature of the Student Signature of the Guide

INDEX OF CONTENTS

Sr. No. Particulars Page No.

1 INTRODUCTION 1

2 IMPORTANCE OF STUDY 2

3 REVIEW OF LITERATURE 3

4 STUDY OF PROBLEM 3

5 HYPOTHESIS 4

6 OBJECTIVE OF RESERACH 5

7 REASEARCH METHODOLOGY 5

8 SCOPE

9 LIMITATION
INTRODUCTION

Alternative dispute resolution system popularly known as ADR is a phenomenon used

to settle the dispute outside the court. It includes Arbitration, Mediation ,Negotiation
and conciliation .The most conventional method of resolving disputes is arbitration.The
Arbitration process is legally binding .It is frequently administrated by a private person
or by a private company that keeps a roaster of potential arbitrators and establishes the
guidelines for conducting the arbitration.These groups are also capable of overseeing
the arbitration entirely or in part.Arbitrators are frequently chosen by the parties based
on their substantive knowledge.Because the arbitrator ,who is typically a
lawyer,attorney or a retired judge ,issues a ruling at the conclusion of the arbitration
session that is final and binding and only slightly subject to judicial review ,arbitration
is adjucatory rather than advisory.in certain cases ,arbitration is described as non binding
provided that both parties to consent that,although it is actually binding.
Kinds of arbitration
Unlike civil or criminal cases, a dispute is sent to the arbitration tribunal. The tribunal
resolves the dispute and the final decision cannot be appealed, making it binding on both
parties. No judicial proceedings are involved to ensure the swift resolution of the
disputes. The following are the different types of arbitration as per the jurisdiction of
the case:

Domestic arbitration
In domestic arbitration, both the parties must be Indians and the proceedings take place
in India itself. In the Arbitration and Conciliation Act, 1996 there is no specific
definition given to domestic arbitration. A mere reading of Section 2(2) can lead us to
infer that domestic arbitration is when the parties had agreed to resolve any disputes that
arise in India. The proceedings must be held in the domestic territory and must be in lieu
of the procedural and substantive law in India.

International arbitration
As the name suggests, international arbitration occurs outside the domestic territory
because of either a clause inserted in the agreement between the parties or the cause of
action that arises from a foreign element relating to the dispute or to the parties.
According to the circumstances that led to a case being filed foreign or Indian law would
be applicable.

International commercial arbitration

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According to Section 2(1)(f), international commercial arbitration can be understood as
arbitration that takes place because of a dispute arising from a commercial contract
where either one of the parties resides in a foreign country or is a foreign national; or
the core management committee of an association, company or a body of individuals is
controlled by foreign individuals.

Under Indian law, the involvement of a foreign party would attract Part I of the Act, that
is, it would come under the purview of international commercial arbitration. But it
would be inapplicable in case the international commercial arbitration takes place
outside the territory of India. By virtue of the 2015 Amendment Act, ‘company’ has
been removed from the ambit of ICA. The Supreme Court scrutinized the scope of
Section 2 (1) (f) (iii) in TDM Infrastructure Pvt. Ltd. v. UE Development India Pvt.
Ltd., (“TDM Infrastructure”) wherein, even if a company is in foreign hands, it would
be considered as an Indian company as it was incorporated in India. Therefore,
companies that have Indian nationality and have been registered in India would be
excluded from the ambit of foreign body corporate, regardless of the fact that the
company is in foreign hands.

On the basis of the established procedure and rules, there are further three types of
arbitration that have been recognized in India:

Ad-hoc Arbitration
Ad-hoc arbitration refers to when parties with mutual consent opt for arbitration to
resolve the dispute. It is the most common form of arbitration used in India owing to
reasonable costs and adequate infrastructure. Arbitration is conducted without having
any institutional proceedings, that is, it does not comply with the rules of an arbitral
institution. The parties have the option to choose the rules and the procedure to be
followed. This form of arbitration can be used for international commercial transactions
and domestic disputes. The jurisdiction is of utmost importance since a majority of the
issues are resolved in conformity with the applicable law in respect to the seat of
arbitration. An example of the same would be if the parties have agreed to keep the seat
in India, the dispute would be resolved in lieu of the provisions of the Arbitration and
Conciliation Act. The Act also provides that the arbitral tribunal or the parties can
determine whether to receive assistance from an appropriate institution or individuals.
In case the parties are unable to reach a consensus on the number of arbitrators, one
arbitrator would be part of the tribunal after being appointed by the Chief Justice of a
Supreme Court or the Chief Justice of a High Court.

Fast track Arbitration

Fast track arbitration can be seen as an effective solution to solving the problems faced
because of delays and time-consuming proceedings in other forms of arbitration. It does
not involve any procedure that takes time and upholds the main objective or arbitration,
that is, to resolve a dispute in a short period of time. In the provision of the Act, fast-
track arbitration is given a stipulated time period of six months. The arbitrator only
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makes use of the written submission and unlike other forms of arbitration, one sole
arbitrator is sufficient to resolve the dispute.

Institutional Arbitration
In Institutional Arbitration, the parties are free to choose a particular arbitral institution
in the arbitration agreement itself. The institution’s governing body or the parties can
appoint one or more arbitrators from a panel of arbitrators that had been previously
agreed upon. Part I of the Act gives parties the freedom to appoint an arbitrator to deal
with a specific issue.

The institution selects one or more arbitrators who possess the skills and experience
stipulated applicable in a given case when the parties do not appoint an arbitrator
themselves. On the other hand, if the parties choose to appoint one themselves they can
choose from the list provided by the institution.

It is mainly used by business organizations worldwide owing to a specific procedure

being deployed as well as an efficient dispute resolution procedure provided by the
institutions. A few prominent arbitration centres are the Chartered Institute of
Arbitrators UK, the London Court of International Arbitration, the National Arbitration
Forum USA, Singapore International Arbitration Centre, and the International Court of
Paris.

In M/S Nandan Biomatrix Limited vs D 1 Oils Limited, 2009, the parties had agreed to
resolve any dispute arising from the agreement via institutional arbitration. The
Supreme Court assessed the validity of the agreement and whether the absence of a
specific institution would make the agreement invalid. It was held that the parties had
expressly desired to settle the disputes through institutional arbitration, making the
agreement between them valid.

Advantages of arbitration in India

Mutual consent of both parties – Arbitration can only take place when both the parties
have given their consent and the contract includes an arbitration clause.
Unbiased procedure – No party enjoys an undue advantage because of the fact that the
parties are free to decide the relevant venue, language, and the applicable law.
Confidential procedure – Any disclosure made by the parties in the proceedings and
when the arbitration award is given is to be kept confidential.
Cost-effective procedure – No exorbitant cost is charged from the parties making it
common for parties to prefer arbitration over the traditional form of litigation.
Simple and informal procedure – The parties do not have to separately hire an attorney
to represent them and the outcome of the case can be adapted in compliance with the
needs of both parties. The environment is comfortable and no formal mannerisms are
used, making it easier for the parties to reach a suitable outcome.
Freedom to choose arbitrator – The parties can select an arbitrator or agree to get an
arbitrator with relevant exercise in the particular domain by the institution.
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Stipulated time period for giving an award – The tribunal will give the award within a
short tenure of twelve months from the last day of the pleadings in case of domestic
arbitration. On the other hand, in internal commercial disputes, the time period is rather
relaxed and no stipulated time period is allotted. Hence, there are no unnecessary delays
in giving the award.
Binding decision – The arbitration awards given are enforceable making the decision
binding on the parties.
Position of control – The parties have a position to control the outcome as they can
directly participate in the decision-making procedure. In this way, the dispute is
amicably resolved.
Importance of Study

There are various reasons why the subject of "recognition and

enforcement of arbitral awards in international commercial arbitration" is so
important.

International Trade and Commerce:

These two sectors are booming in today's globally connected
world. It is inevitable that disputes will arise, and arbitration offers a practical
substitute for going to court. It is imperative for organisations involved in cross-
border transactions to comprehend the worldwide recognition and enforcement
of arbitral rulings. To support the above contention the statistical data is
mentioned below.
India’s overall exports (Merchandise and Services combined) in September
2023* is estimated to be
USD 63.84 Billion, exhibiting a negative growth of (-) 1.20 per cent over
September 2022. Overall
imports in September 2023* is estimated to be USD 68.75 Billion, exhibiting a
negative growth of (-) 13.67 per cent over September 2022
india’s overall exports (Merchandise and Services combined) in April-
September 2023* are
estimated to be USD 376.29 Billion, exhibiting a negative growth of (-) 2.97 per
cent over April-
September 2022. Overall imports in April-September 2022* are estimated to be
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USD 416.20 Billion,
exhibiting a negative growth of (-) 10.14 per cent over April-September 2022
MERCHANDISE TRADE
Merchandise exports in September 2023 were USD 34.47 Billion, as
compared to USD 35.39 Billion
in September 2022.
Merchandise imports in September 2023 were USD 53.84 Billion, as
compared to USD 63.37 Billion
in September 2022
Legal Certainty and Predictability:
Parties feel more at ease with the law when they are aware that
arbitral rulings are enforceable in several jurisdictions. It enables parties to
participate in arbitration with the knowledge that the decision will be upheld.

Encouraging Arbitration as a Dispute Resolution Process:

A strong framework supporting the acceptance and
implementation of arbitral awards.

Review of literature

During my studies, I have read "The Law and Practise of

International Commercial Arbitration," a book on the subject authored by Alan
Red Fern and Martin Hunter. Trade Arbitration. The content of this book is
really detailed and has addressed every facet of arbitration in great detail. It is
has eleven chapters that begin with the idea of arbitration and additionally
address many aspects of arbitration, such as the significance of the location of
arbitration, legislation addressing the substantive matters, and the selection of
the arbitral panel, etc. Additionally, it describes the process that the arbitral
panel used to carry out the particulars of arbitration. Then, it has emphasised
the part that the national courts in the process of arbitration. Therefore, books,
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articles and cases in the course of research have together helped in
understanding the concept of arbitration and particularly the concept of
enforcement of the awards.
Another book that has been accessed is the ‘Commercial
Arbitration ’ by Mustill and Byod . The authors have explained the
concept of arbitration with such ease that the flow of the book keeps
the interest of reader alive with each concept becoming clearer with
every page.
Book by David Sutton, John Kendall and Judith Gill by the
name ‘Russell on Arbitration,40 is again a very brilliant book. The
Authors have tried to explain minute details beginning by defining the
various terms to the relevant case laws. Emphasis is more on the
English law and the approach followed by the English Courts. Again
the authors have dealt separately with every aspect of arbitration in a
very easy concentrating more on English approach towards arbitration.

Similarly, in India, Justice R.S. Bachawat, P.C. Markanda and G

K Kawatra have written very elaborately about the evolution and
future of arbitration in India.
All the above books are taken into consideration by the researcher

Statement Of Problems
The history of arbitration acts in india is as follows
The Act of 1940 was a reflection of the English Arbitration Act, 1934 and was
a comprehensive legislation on the subject but it had no provisions to deal with
enforcement of foreign awards and hence, dealt only with domestic arbitrations
After the economic liberalisation in the year 1991, steps were taken to attract foreign
investment which required a comfortable business environment and ease of doing
business. For the said reason, Arbitration and Conciliation Act, 1996 came into force
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and repealed the Act of 1940. 1996 Act suffered from various problems including high
costs and too much intervention of Courts
A major drastic change came after the 2015 amendment, before the said amendment
there were a lot of lacunas in the act they are mentioned below with the fulfillment of
lacunas.
Relevant court for domestic and international arbitration matters: Under the Act, the
relevant court for all arbitration matters would be a principal civil court or high court
with original jurisdiction.
The Bill modifies this to state that in the case of international arbitration, the relevant
court would only be the relevant high court.
Applicability of certain provisions to international commercial arbitration: Part I of the
Act that included provisions related to interim orders by a court, order of the arbitral
tribunal, appealable orders etc. only applied to matters where the place of arbitration
was India.
Under the Bill, these provisions would also apply to international commercial
arbitrations even if the place of arbitration is outside India. This would apply unless
the parties agreed otherwise.
Powers of Court to refer a party to arbitration if agreement exists: Under the Act, if
any matter that is brought before a court is the subject of an arbitration agreement,
parties will be referred to arbitration.
The Bill states that this power of referral is to be exercised by a court even if there is a
previous court judgment to the contrary. The Court must refer the parties to arbitration
unless it thinks that a valid arbitration agreement does not exist.
Interim order by a Court: The Act states that a party to arbitration may apply to a court
for interim relief before the arbitration is complete. For example, a party may seek
interim protection of goods, amounts, property, etc. that is the subject matter of the
arbitration before a court.
The Bill amends this provision to specify that if the Court passes such an interim order
before the commencement of arbitral proceedings, the proceedings must commence
within 90 days from the making of the order, or within a time specified by the Court.
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Further, the Court must not accept such an application, unless it thinks that the arbitral
tribunal will not be able to provide a similar remedy.
Public Policy as grounds for challenging an award: The Act permits the court to set
aside an arbitral award if it is in conflict with the public policy of India. This includes
awards affected by (i) fraud or corruption, and (ii) those in violation of confidentiality
and admissibility of evidence provisions in the Act.
The Bill modifies this provision to also include those awards that are (i) in
contravention with the fundamental policy of Indian Law or (ii) conflict with the
notions of morality or justice, in addition to the grounds already specified in the Act.
Appointment of arbitrators: The Act permits parties to appoint arbitrators. If they are
unable to appoint arbitrators within 30 days, the matter is referred to the court to make
such appointments.
The Bill states that, at this stage, the Court must confine itself to the examination of
the existence of a valid arbitration agreement.
Time period for arbitral awards: The Bill introduces a provision that requires an
arbitral tribunal to make its award within 12 months. This may be extended by a six
month period. If an award is made within six months, the arbitral tribunal will receive
additional fees. If it is delayed beyond the specified time because of the arbitral
tribunal, the fees of the arbitrator will be reduced, up to 5%, for each month of delay.
Time period for disposal of cases by a Court: The Bill states that any challenge to an
arbitral award that is made before a Court, must be disposed of within a period of one
year.
Fast track procedure for arbitration: The Bill permits parties to choose to conduct
arbitration proceedings in a fast track manner. The award would be granted within six
months
The amendment of 2019 was the insertion of 8th schedule which
specifies that a person shall not be qualified to be an arbitrator unless he is an advocate
within the meaning of the Advocates Act, 1961 having ten years of practice experience
as an advocate.
The challenges before the arbitration process in 2023 are basically unnecessary
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delay and lenthy section 34 application owing to the latency in courts’ behavior, the
precedents wherein it is factually evident that the courts have failed to follow any time
constraint in setting aside stage comes to light.
Arbitration : conceptual dimension Meaning of arbitral award and frame work
international conventions on recognition and enforcement ,recognition and
enforcement legislative and judicial response in india

Grounds for refusal of recognition and enforcement

Hypothesis

To achieve the above said objectives, the research hypotheses rest on the following
assumptions:

• The Researcher believes that if the drastic changes are made in the arbitration
system of india and Singapore by fulfillment of lacunas then the arbitration
system will be comparatively smooth than the existing.

Objectives To research

To examine how the concept of Arbitration emerged, need for having

such a method of resolving disputes despite having well defined system in form
of Courts.
• To evaluate the formal requirements as to validity and contents of arbitration
agreement and arbitral awards. To look into deficiencies
and lacunas in arbitration agreements and awards, that can result in refusal of
recognition and enforcement.
• To analyze the grounds on which recognition and enforcement may
be refused.
• To examine the institutional and functional deficiencies under international
conventions and national legal systems relating to recognition and enforcement.
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• To study the role played by various Courts at the place of arbitration, during
arbitral process, after the arbitral process and finally at the stage of recognition
and enforcement.
• To study Indian and singapore legal frame work dealing with recognition and
enforcement.
• To suggest the changes that can be affected.

Research Methodology

The reasearcher plans to refer non-doctrinal research is based on primary

sources like surveys and case studies and also focuses interview some of the
Arbitrators, lawyer's or judgesThe primary data is in the form of international
conventions, documents such as the Law Commission Reports,
municipal legislations etc. The secondary data has been collected from
the sources such as books, journals, websites and the judicial
pronouncement made by the Courts in different countries.

Scope Of Research

The scope of this research stretches to International commercial Arbitration

systems that are prevalent. The research will look into the Benefits as well as the
Drawbacks of the
International commercial Arbitration by comparing the systems of India as well
as Singapore Arbitration system For this purpose
the researcher will study and shade light on Indian provisions and law relating
to Arbitration and
also gather all the pertinent information by analysing various legal systems
around the Globe. The
research will also focus on the Judicial Decisions given by the Courts

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international commercial Arbitration
The research here tries to shade light
as to compare the arbitration proceedings status of India as well as Singapore
And enforceability of orders passed by the
arbitrator The researcher has taken reference from
Global/International framework to gain a better understanding of concept of
Enforcement of Arbitration award

LIMITATIONS

The research mostly focuses on what extent does the Enforceability of the
arbitration award is implemented in India as well as Singapore .The challenges
before the arbitration system relevant
to the India as well as Singapore. So the research work is limited to India and
Singapore does not focus much on the
Global context of Emergency Arbitration.

Subject to this limitation, in this research, the researcher aims to achieve

maximum reliability and to the research findings validity drawn after
completion of this research.

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TANTATIVE CHAPTERISATION

CHAPTER 1
INTRODUCTION TO RESEARCH STUDY
1.PRELIMINARY

2.IMPORTANCE OF RESEARCH

3.REVIEW OF LITERATURE

4.STATEMENT OF PROBLEM

5.HYPOTHESIS OF RESEARCH

5.OBJECTIVE OF RESEARCH

6.SCOPE OF THE RESEARCH

7.LIMITATION OF THE RESEARCH

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CHAPTER 2
ARBITRATION: CONCEPTUAL DIMENSION
2.1 Evolution of Arbitration

2.2 Meaning, Definition and object CHAPTER of Arbitration

2.3 Concept of Arbitration

2.4 Types of Arbitration 2

2.4.1 Domestic Arbitration

2.4.2 Distinction between Domestic Arbitration and International

Arbitration

2.4.3 International Arbitration and International Commercial arbitration

2.5 Commercial Arbitration

2.5.1 Forms of International Commercial Arbitration

2.5.1.1 Adhoc Arbitration

2.5.1.2 Institutional Arbitration

2.6 Attributes of Arbitral Process

2.6.1 Valid Agreement to arbitrate

2.6.2 Laws applicable to the arbitration

2.6.3 Arbitral Tribunal

2.6.4 Award of the Tribunal

2.6.5 Recognition and Enforcement of the Award

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CHAPTER 3

MEANING OF ARBITRAL AWARD AND FRAME WORK OF INTERNATIONAL

CONVENTIONS ON RECOGNITION AND ENFORCEMENT AWARD

3.1 Meaning of Arbitral Award

3.2 Types of Award

3.3 Valid Award and its condition

3.4 Form and Contents of an Award

3.4.1 Contents of the Award

3.5 Framework of International

Conventions on Recognition and

Enforcement

3.5.1 International Conventions

3.5.2 The Geneva Protocol of 1923

3.5.3 The Geneva Convention of 1927

3.5.4 The New York Convention of 1958

3.6 Conventions after 1958

3.6.1 The European Convention of 1961

3.6.2 The Model Law

3.6.3The Revised Model Law

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CHAPTER 4

GROUNDS FOR THE REFUSAL OF

RECOGNITION AND ENFORCEMENT
4.1 Performance of Awards
4.1.1 Commercial and other pressures
4.2 Steps for Enforcement
4.3 Recognition
4.4 Enforcement
4.4.1 New York Convention 1958
4.5 Grounds for the Refusal of Recognition and
Enforcement

4.5.1 Incapacity of the Parties 229

4.5.1.1 No Capacity
4 5 1.2 No Valid Agreement to
Arbitrate

4.5.2 No proper notice of the appointment

of Arbitrators; lack of due process

4.5.3 Jurisdictional Issues: Excess of

Jurisdiction

4.5.4 Composition of Tribunal or

Procedure not in accordance with
Arbitration Agreement or the
Relevant Law

4.5.5 Award not binding, Suspended, or

Set aside 4.5.6 Article V (2): Arbitrability
4.5.7 Article V (2): Public Policy

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CHAPTER 5

RECOGNITION AND ENFORCEMENT:

LEGISLATIVE AND JUDICIAL RESPONSE IN
INDIA
5.1 Introduction

5.1.1 Arbitration Act of 1940

5.1.2 The Arbitration and Conciliation

Act. 1996

5.1.2.1 Objective of the Act of

1996

5.1.2.2 Changes in the Arbitration

Act, 1996

5.1.2.3 Constitutionality of the

Arbitration Act

5.2 Grounds for Refusal of Recognition and

Enforcement

5.2.1 Legal requirements for the

enforcement of the awards

5.2.2 Grounds for refusal of Enforcement

Chapter 6 : Conclusion

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TENTATIVE REFERENCES

1.BOOKS

1. 'The Law and Practice of International

Commercial Arbitration' by Alan Red Fern and
Martin Hunte
2.‘Commercial
Arbitration ’ by Mustill and Byod

Book by David Sutton, John Kendall and Judith Gill by the

name ‘Russell on Arbitration

INTERNATIONAL REFERENCE MATERIALS

• International Council for Commercial Arbitration (ICCA) Yearbook
(Kluwer).
• International Council for Commercial Arbitration (ICCA) Congress
Series (Kluwer)

WEBSITE RESOURCES
• www.arbitration-icca.org
• www.kluwerarbitration.com
• www.westlaw.com
• www.lcia-arbitration.com
• www.iccwbo.ora/index court.asp
• www.worldbank.org/icsid/index.html
• www.pca-cpa.org
• www.arbitration-interactive.de
• www.uncitral.org
• www.naftalaw.org

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