CASE 2

Ans:  Section 52 of Arbitration and Conciliation Act,  1996:  Chapter II not to apply.—Chapter II of this Part shall not apply in relation to foreign awards to which this Chapter applies.

Ans:  Section 51 Saving. —Nothing in this Chapter shall prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Chapter had not been enacted.

Ans:  Section 50 of Arbitration and Conciliation Act,  1996 :  Appealable orders.— (1) An appeal shall lie from the order refusing to— (a) refer the parties to arbitration under section 45; (b) enforce a foreign award under section 48, to the court authorised by law to hear appeals from such order. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

Ans: Section 49 : . Enforcement of foreign awards.—Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court.

 Ans:  48. Conditions for enforcement of foreign awards.— (1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that— (a) the parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitrati...

Ans: Evidence.— (1) The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court— (a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made; (b) the original agreement for arbitration or a duly certified copy thereof; and (c) such evidence as may be necessary to prove that the award is a foreign award. (2) If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall 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. Explanation.—In this section and all the following sections of this Chapter, “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court ...

Ans: Section 46 in THE ARBITRATION AND CONCILIATION ACT, 1996.   When foreign award binding.—Any foreign award which would be enforceable under this Chapter 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 defence, set off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award.

Ans:  Section 45 in THE ARBITRATION AND CONCILIATION ACT, 1996 45 Power of judicial authority to refer parties to arbitration. —Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

Ans:  Section 44 of Arbitration and Conciliation Act,  1996.  Definition:  In this Chapter, unless the context otherwise requires, “foreign award” means 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— (a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and (b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.

Ans: The Convention on Enforcement of Foreign Arbitral Awards, 1958, or the New York Convention (“New York Convention”) as it has come to be known, was a significant milestone in international commercial arbitration. The Convention was the culmination of attempts around the world to uniformise rules for enforcement of awards passed by arbitral tribunals in foreign countries. By signing up to the New York Convention, States undertook to recognise and enforce arbitral awards passed in other member Countries. At the time it was signed and ratified, the New York Convention was indeed a revolutionary instrument. Before long, a vast majority of States had ratified it thereby giving legal sanctity to arbitral awards passed in other jurisdictions. Indeed, the success of the New York Convention is easily gauged by the fact that it is now the second most widely ratified treaty in the world. India was an early adopter of this new regime. India signed the New York Convention in 1958 and ratifi...

Ans: Any arbitral award can be challenged in court of law by an appeal filed under section 96 of Civil procedure code, 1908 or it can be declared void or set aside or cancelled under section 34 of Arbitration and Conciliation Act, 1996.

Ans: Section 48 of the Arbitration and Conciliation act, 1996, provides for conditions required for the enforcement of foreign award. The conditions include:  A foreign award may not be enforced in India if it is proved by the party against whom it is sought to be enforced that: the parties to the agreement were under some incapacity to perform under the law to which they were subjected to and in the absence of any mention of such law, the law of the country where the award was made, i.e. the place of arbitration, or, the agreement was invalid under the law to which the parties have subjected it and in the absence of any mention of such law, the law of the country where the award was made, or, a fair trial was not conducted by the tribunal passing the award by failing to adhere to the principles of fair hearing, or, the award passed was partly or wholly beyond the scope of the arbitration agreement, in which case the part of the award exceeding the scope of submission to arbitratio...

5. That, in terms of the arbitration clause, the dispute was referred to GAFTA arbitration in London, in accordance with English Law. The Petitioner appointed Mr K Haylock as their arbitrator. As the Respondent failed to appoint their arbitrator, the Petitioner's legal representatives Arizon Abogados S.L.P. ("Arizon") applied to GAFTA for the appointment of an arbitrator on Respondent's behalf in accordance with Rule 3.3 1 of GAFTA 125. GAFTA gave notice to the parties that, since the Respondent had failed to appoint an arbitrator within 9 consecutive days of receipt of Petitioner's Notice of the appointment of Mr. K. Haylock, Mr S. Kim has been appointed as the second arbitrator. 6. That, only the Petitioner participated in the arbitration and the Respondent did not participate in the Arbitration. Petitioner did not request an oral hearing and the matter was determined on documents alone. On 22 March 2022, a reasoned Final Arbitration Award was published by Mr. K...

3. That, disputes arose between the Petitioner and Respondent relating to damages incurred of USD 1,292,389.86 payable by the Respondent to the Petitioner as the Respondent failed to ship the Cargo in the agreed time. Due to Respondent's breach, the Petitioner purchased cargo from an alternate seller and incurred damages. The Petitioner invoked arbitration vide its broker's email dated 19.05.2021. The Respondent responded to the notice of invocation vide email dated 20.05.2021. Annexed hereto and marked as Annexure P/3 is the Petitioner's broker's email dated 19.05.2021 and the Respondent's response dated 20.05.2021.

Ans: That, the Respondent is a company registered in India and is engaged in the business of sale of agro products. The Respondent has its office at the address stated in the cause title. That, the brief facts and circumstances germane to the present pétition are that by a contract (Contract) No, 20 17378 dated 11 September 2020, the Respondent agreed to sell 3,600 mt 5% of Organic Soybean Cake in meal, Indian origin, crop (Cargo) to the Pelitioner in 20 ft containers in bulk at a price of USD 663/mt. The Contract was concluded through a broker, Zeleny Informacion y Mercado SL of Pamplona, Spain (Broker). A dispute arose between the parties which, under the terms of the Contract, was expressly to be referred to arbitration in London in accordance with the GAFTA Arbitration Rules No. 125 ("GAFTA 125"). As per GAFTA 125, the arbitration was subject to English law in accordance with the Arbitration Act 1996. The Contract (containing the arbitration clause) (along with covering e...

1. That, the Petitioner is a company incorporated under foreign laws and is engaged in the business of interalia importing of Agro Products. The Petitioner has its office at the address given in the cause title. This petition is being filed through Santosh Koli, the Authorised Signatory of Cereales Y Servicios Agricolas De Burgos S.L who has signed and verified this petition. The Petitioner's Board Resolution is annexed hereto as Annexure P/1. A board resolution is a document that formalises important decisions made by the board of directors and the actions relating to them.