A Study On Judicial Review of Arbitral Awards in India
With the explosive globalization of trade and investment, there has been a corresponding increase in commercial disputes between parties across national boundaries. International arbitration is being increasingly sought after as the best mode of alternative dispute resolution in such commercial disputes. Arbitration offers a number of advantages over litigation. In fact, even if an agreement to arbitrate does not already exist when a dispute arises, the parties may still agree to submit the dispute to arbitration for resolution and take advantage of the benefits that arbitration affords.
where the courts have gone beyond the statutory scope of review and have attempted to either review or set aside arbitral awards on non-statutory standards such as the “manifest disregard of the law” in the United States or “error of law” in India. In this thesis, an attempt has been made to analyze the judicial decisions by various national courts in the United States and India (updated until September 2007) so as to highlight the latest trend in judicial review of arbitral awards. The scope of the ‘public policy’ defense employed in the United States for setting aside arbitral awards has been first discussed, following which the general trend of the national courts going beyond the scope of the statutory grounds in reviewing arbitral awards under the “manifest disregard of law” .
Advantages of International Arbitration
Arbitration can be a superior or an inferior alternative to litigation, depending on the circumstances of the case. Some of the advantages most often associated with international arbitration are:
1) Flexible process;
2) Neutral forum;
4) Specialized Tribunal;
5) Finality and Enforcement; and
Though all of the above advantages are self-explanatory, “Finality and Enforcement” is perhaps most relevant and is discussed in detail with reference to the recognition and enforcement of arbitral awards.
Recognition and Enforcement of Arbitral Awards
The recognition and enforcement of an award has always been understood to be separate from the making of the award itself, the reason being, the award is given by an arbitrator whose authority is based on the contract between the parties and who does not possess the authority of t he State. Further, the international treaties that govern the enforcement of an arbitral award, such as the New York Convention, have much greater acceptance internationally than treatiesfor the reciprocal enforcement of court judgments.
Indeed, the United States, which is a party to the New York Convention, “is not a party to a single treaty providing for enforcement of foreign judgments.” Article V of the New York Convention lays down the provisions under which the recognition and enforcement of an arbitral award may be refused under the Convention, which are set out hereunder.
New York Convention - Article V
1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority, where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II 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 arbitration 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 arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding, on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.
Arbitral Awards in India – Statutory Provisions
International Commercial Arbitration in India – Finality and Enforcement
India has always held a deep-rooted commitment to the philosophy of arbitration in general. Mahatma Gandhi, in 1927 wrote, “Differences we shall always have but we must settle them all, whether religious or other, by arbitration.” Foreign arbitral awards have always been treated as final on merits in India for the purposes of enforcement with limited or no scope for judicial review except strictly under the statute. India became a party to the New York Convention with effect from October 11, 1960 In order to implement its obligations under this Convention, India enacted the Foreign Awards (Recognition and Enforcement) Act, 1961. The 1961 Act has since been repealed and replaced by the new Indian Arbitration and Conciliation Act, 1996. The focus of the 1996 Act is the minimization of court intervention in the process and enforcement of foreign arbitral awards.
Indian Arbitration and Conciliation Act, 1996
The Indian Arbitration and Conciliation Act, 1996, is a unification statute in the sense that it was intended to give effect to multiple international commitments undertaken by India, namely the UNCITRAL Model Law on International Commercial Arbitration, 1985, the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958, the Geneva Convention on Execution of Foreign Arbitral Awards, 1927 and the Geneva Protocol on Arbitration Clauses, 1923.The Act seeks not only to consolidate, but also to unify Indian law both on domestic and international arbitration. In other words, under the Act, Indian law would be same for both domestic and international arbitrations that take place within the Indian territory.
The 1996 Act is divided into four parts: Part I is concerned with domestic arbitrations; Part II deals with the enforcement of New York Convention awards and European Convention on International Commercial Arbitration (“Geneva Convention”) awards; Part III makes legislative provisions for conciliation based on the 1980 UNCITRAL Conciliation Rules and finally, Part IV adds supplementary provisions.
A foreign award in India is enforceable either under the New York Convention, the Geneva Convention or under common law as applicable in India.Indian Arbitration and Conciliation Act, 1996 The Indian Arbitration and Conciliation Act, 1996, is a unification statute in the sense that it was intended to give effect to multiple international commitments undertaken by India, namely the UNCITRAL Model Law on International Commercial Arbitration, 1985, the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958, the Geneva Convention on Execution of Foreign Arbitral Awards, 1927 and the Geneva Protocol on Arbitration Clauses, 1923.Before the 1996 Act, the Indian Arbitration Act 1940 (which was repealed by the 1996 Act) did not make any reference to international arbitrations taking place in Indian territory.
Since the 1940 Act was to be applied to all arbitrations taking place within Indian territory, international arbitrations were also ipso facto covered by the enactment. The new enactment, however, makes a special reference to international commercial arbitrations and has defined the same under Section 2(f) of the 1996 Act.
Recourse against Arbitral Awards
Section 34 under Part I of the 1996 Act lays down the provisions under which applications could be filed to set aside arbitral awards. Section 48, Part II of the 1996 Act provides the conditions for enforcement of foreign awards. Section 34 and 48 of the 1996 Act essentially mirror each other in terms of their provisions, although an application challenging an arbitral award is filed under section 34 of the Act. In relation to the enforcement of foreign awards, the Indian Supreme Court in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., held that there is no need for separate proceedings in order to enable the court to decide the enforceability of an award or to make it binding as a order or decree and to execute the award.
The Supreme Court made the following observations: Part II of the Act relates to enforcement of certain foreign awards. Chapter I of this Part deals with New York Conventions Awards. Section 46 of the Act speaks as to when a foreign award is binding. Section 47 states what evidence the party applying for the enforcement of a foreign award should produce before the Court. Section 48 states the conditions for enforcement of foreign awards. According to Section 49, if the Court is conscience satisfied that a foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court and that Court has to proceed further to execute the foreign award as a decree of that Court. Specifically, a court hearing an application to set aside an award under the 1996 Act is, on the face of the wording of the 1996 Act, precluded from reviewing--even indirectly--the merits of the award since setting-aside is no longer possible for errors of law or fact.
Section 34 of the 1996 reads as follows:
Application for setting aside arbitral award. –
(1) Recourse to a court against an arbitral award may be made only by an application for
setting aside such award in accordance with sub-section (2) and subsection (3).
(2) An arbitral award may be set aside by the court only if-
(a) The party making the application furnishes proof that-
(i) A party was under some incapacity, or
(ii) The arbitration agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) The party making the application was not given proper notice of the appointment of
an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) The arbitral award deals with a dispute 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 arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(b) The court finds that-
(i) The subject-matter of the dispute is not capable of settlement by arbitration under the
law for the time being in force, or
(ii) The arbitral award is in conflict with the public policy of India.
Meaning and scope of “Public Policy” according to the 1996 Act
The explanatory notes which follow Sections 34(2)(b)(ii) and 48(2)(b) of the 1996 Act make clear that a party seeking to set aside or resist recognition and enforcement of an arbitral award on grounds of public policy faces a very high threshold. Essentially, in order to be contrary to the public policy of India, the award must rise to the level of having been induced by fraud or corruption. Furthermore, the explanation to Section 34(2)(b)(ii) also specifies that a violation of public policy arises where there is a breach of the confidentiality provisions contained in Section 75 of the 1996 Act, or where evidence obtained in conciliation proceedings has been adduced in the arbitration.
In short, pursuant to the examples specified in the explanatory notes included in the 1996 Act, only a serious violation of due process will amount to a violation of Indian public policy. Thus, the explanatory notes provided in the 1996 Act are clearly in line with the interpretation given to the corresponding provisions in the UNCITRAL Model Law. Indeed, according to the UNCITRAL Model Law Commission Report, the term "public policy" comprises: [F]undamental notions and principles of justice. . . . It was understood that the term 'public policy,' which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects. Thus, instances such as corruption, bribery or fraud and similar serious cases would constitute a ground for setting aside. Based on the foregoing, the public policy standard set by the 1996 Act is--consistent with the intention underlying the corresponding UNCITRAL Model Law provision--intended to be high.
Accordingly, the 1996 Act provides that only where an award is based on a serious violation of due process can the public policy ground be successfully invoked to set aside or resist enforcement of such an award. As regards the recognition and enforcement of foreign arbitral awards, the Indian Act embodies the New York Convention. However one of the main problems that arose in the application of the New York Convention was the interpretation of the meaning and scope of “public policy” by the National Courts. Indian courts tended to equate the term “public policy” with the term “law” as they were conditioned by section 13(f) of the Code of Civil Procedure of India 1908, which provided that a foreign judgment may be refused recognition and enforcement in India if it sustains a claim founded on a breach of any law in force in India.
The repercussions of such an approach are self-evident any foreign arbitral award that is not in conformance with the provisions of any of the laws in India could be struck down by adopting this view. The meaning of “public policy” when used in enforcement of foreign awards. The Court said the terms should not be equated with the law of India: “Something more than the violation of the law of India must be established.” By applying this criterion, the enforcement of foreign awards would be refused, if such enforcement would be contrary to:
(i) the fundamental policy of Indian law; or
(ii) the interests of India; or
(iii) justice or morality
This decision set an extremely high standard for Indian courts to refuse to enforce a foreign arbitral award. The Supreme Court of India has recognized that international arbitral awards are enforceable internationally, and therefore should be international in their validity and effect.
Section 12(f) reads: “A foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except when it sustains a claim founded on a breach of any law in force in Indiarecognized the pro-enforcement bias of the New York Convention, and thus held that a court in India should restrict itself to the grounds outlined in Section 48 of the Act. Those grounds, moreover, do not enablea party to challenge an arbitral award on its merits..
The High Court of Delhi recognized in Ludwig Wunsche & Co. v. Raunaq International Ltd. that under Section 7 of the Foreign Awards (Recognition and Enforcement) Act, 1961 (the implementation legislation of the 1958 New York Convention), the “Court has no power to set aside the award, the Court can only refuse enforcement of the award.” The provisions of the New York Convention have greatly influenced the UNCITRAL Model law, and since the 1996 Act has adopted the Model law, there is no reason why Indian courts will not apply this reasoning to awards under the new Act.
Review of Arbitral Awards in India – Scope Broadened
Scope of Judicial Intervention Broadened The efficacy of any legislation must be judged by its implementation rather than its intentions. Unfortunately, in practice, the Indian courts have vastly enlarged the scope of challenge of awards to much more than what is available under the 1996 Act. In Oil & Natural Gas Corp. Ltd. v. SAW Pipes Ltd. the Supreme Court of India adopted a broad interpretation of the term “public policy” by essentially including “error of law” as a new ground for setting aside an arbitral award. This “error of law” ground was not provided for under the 1996 Act. The Court then effectively used this new ground as a basis to review the merits of the case. While the Saw Pipes decision is, at first glance, only relevant to proceedings to set aside awards with seat of arbitration in India, the ramifications of this decision may potentially extend to recognition and enforcement proceedings of foreign awards in India.
New standard – “Patent Illegality”
The Supreme Court of India has also introduced a new ground for setting aside an award called “patent illegality”. The basis for the same has been explained as follows: "In our view, reading section 34 conjointly with other provisions of the 1996 Act, it appears that the legislative intent could not be that if the award is in contravention of the provisions of the 1996 Act, still however, it couldn't be set aside by the Court."
The Court then analyzed whether the award could be set-aside on public policy grounds. The Court regarded the standard of public policy laid down in Renusagar as "narrow" meaning of public policy and held in Saw Pipes as follows: . . . in a case where the judgment . . . is challenged before the . . . court exercising revisional jurisdiction, the jurisdiction of such court would be wider. Therefore, in a case where the validity of award is challenged, there is no necessity of giving a narrower meaning to the term 'public policy of India.' On the contrary, wider meaning is required to be given so that the 'patently illegal award' passed by the Arbitral Tribunal could be set aside.Thus, the Supreme Court lowered the threshold of the public policy ground for setting-aside arbitral awards. It ruled that, certainly in cases of set-aside proceedings in India, an award can be set aside on public policy grounds, not only if the award is contrary to one of the three public policy grounds enumerated in Renusagar, but also if it is "patently illegal."
First, the Court stated that there is no definition of "public policy" for the purposes of Section 34(2)(b)(ii) of the 1996 Act: The phrase 'Public Policy of India' is not defined under the 1996 Act. Hence, the said term is required to be given meaning in context and also considering the purpose of the section and scheme of the 1996 Act. . . . Hence, the concept 'public policy' is considered to be vague, susceptible to narrow or wider meaning depending upon the context in which it is used.
Second, since the Court concluded that there was no definition of public policy at hand, it decided that--in apparent disregard of the high threshold for public policy provided for in the explanatory note to Section 34(2)(b)(ii)--it would adopt a broader meaning of "public policy."
Finally, the Court set forth its definition of "patent illegality." It held that an award was "patently illegal" if the Arbitral Tribunal had committed an error of law. By interpreting the concept of "public policy" to include "error of law," the Supreme Court went beyond the scope of the 1996 Act.
Indeed, the 1996 Act did not mention error of law as a ground for setting aside an award based on public policy. In short, the Supreme Court effectively used the public policy ground as means to conduct a review of the merits of the case and to "substitute its own view for the view taken by the Arbitrators. . ." The Court's interpretation of public policy is so broad that it potentially opens the floodgates to more and more challenges of arbitral awards before the Indian courts.
Enforcement Proceedings of Foreign Awards
While the Saw Pipes Decision was rendered in the context of an Indian award, and therefore arguably does not apply to the recognition and enforcement proceedings for foreign awards pursuant to Section 48 of the 1996 Act, the Court did not specifically exclude foreign awards from its reasoning. Since the provisions on public policy with the recognition and enforcement of awards in Sections 48(2)(b) and 34(2)(b)(ii) essentially mirror each other, it is uncertain whether the Court will in the future apply its broad interpretation of public policy to the enforcement of foreign arbitral awards, i.e., awards rendered outside India. This uncertainty is further compounded by the Supreme Court's decision of 2001 in Bhatia International v. Bulk Trading SA & Another.
To conclude we hold that the provisions of part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India, the provisions of part I would compulsory [sic] apply. . . . In cases of international commercial arbitrations held out of India, provisions of part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case, the laws or rules chosen by the parties would prevail. Any provision, in part I, which is contrary to or excluded by that law or rules will not apply.The Bhatia decision has been the subject of much debate as it reversed the established understanding that Part I of the 1996 Act would not apply to arbitrations with a seat outside of India.
Therefore, it cannot be ruled out that in the future, an ill-considered decision could construe the reasoning in the Saw Pipes case--which, of course, arose in the context of a set-aside proceeding under Part I--to also somehow apply to recognition and enforcement proceedings under Section 48 contained in Part II of the 1996 Act.
Judicial Intervention on the grounds of error of fact or law
The 1996 Act was brought into existence mainly to achieve, among other objectives, the minimization of the supervisory role of courts in the arbitral process and to provide that every final arbitral award is enforced in the same manner as if it were a decree of the court. Courts in India have given varied opinions from time to time as regards judicial intervention and review of arbitral awards. The courts have held that, “as the parties choose their own arbitrator, they cannot, when the award is good on the face of it, object to the decision either on law or on facts and the award will neither be remitted nor set aside.’” The mere fact that the arbitrators have erred in law or facts can be no ground for interference by the court and the award will be binding on the parties. However, courts have not been always consistent in their views with regard to reviewing of arbitral awards.
The Supreme Court, in one case, observed, “when an arbitrator instead of giving effect to the statutory formula contained in the contract, coined one of his own which he thought was just and reasonable, the arbitrator committed jurisdictional error and the award could not be sustained.”The court should not substitute its own reasons for that of the arbitrator as long as the arbitrator’s reasons do not suffer from an error apparent on the face of the record or that is otherwise unreasonable and based on surmises and conjectures. In Maharashtra State Electricity Board v. Sterlite Industries (India), the Supreme Court stated that, “An error in law on the face of the award means, that you can find in the award or document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal propositions which is the basis of the award and which you can then say is erroneous.”
There, the Court stated, Where the error of finding of fact having a bearing on the award is patent and is easily demonstrable without the necessity of carefully weighing the various possible view points, the interference in the award based on erroneous finding of fact is permissible and similarly, if an award is based by applying a principle of law which is patently erroneous, and but for such erroneous application of legal principle, the award could not have been made, such award is liable to be set aside by holding that there has been a legal misconduct on the part of the arbitrator.
The Supreme Court again set aside the portion of the arbitral award, which was opposed to the specific terms of the contract. The Court, relying on Saw Pipes, observed that it is open to the court to consider whether the award is against the specific terms of contract and if so, whether to interfere with it on the ground that it is patently illegal and opposed to the public policy of India. However, the proper approach of the courts in matters relating to setting aside of arbitral awards is limited and is expressly stated in the 1996 Act.
Standard of Review entailed by the principle of “Competence-Competence”
A strict interpretation of “Competence-Competence” would dictate that courts limit themselves to establishing the prima facie existence of an arbitration agreement, and the arbitral tribunals be left to substantively rule their own jurisdiction. Though this principle does not deal with the finality and enforcement of arbitral awards, it certainly involves the issue of court intervention and judicial review in the arbitral process. Besides, there is a counterargument that, rather than courts intervening with the awards when they are later challenged for lack of jurisdiction, parties are better off if courts definitively ruled on the existence and validity of the arbitration agreements at the outset.
The recent Indian Supreme Court decisions on this principle raise more questions than they answer, but do at least give cause for optimism that in Aloke Ray & Dipen Sabharwal, Competence-Competence: An Indian Trilogy, grappling with the standard of review entailed by Competence-Competence, Indian courts are inching towards a less interventionist, pro-arbitration stance. the question before the Indian Supreme Court was whether Section 45 of the 1996 Act, which incorporated Article II(3) of the New York Convention, required a prima facie or a final review by the national courts when faced with a challenge to the validity and existence of an arbitration agreement.
The Supreme Court held by a 2-1 majority that, when considering a challenge to the existence or validity of an arbitration agreement, "the court is required to take only a prima facie view for making the reference to arbitration, leaving the parties to a full trial either before the Arbitral Tribunal or before the court at the post-award stage." Shin-etsu was hailed as a progressive and proarbitration judgment. Less than three months after Shin-etsu, the Supreme Court in SBP & Co. v. Patel Engineering permitted further court intervention in the arbitral process. The case concerned the appointment of an arbitrator by the chief justice of the Supreme Court in circumstances where the parties’ chosen method for constituting the tribunal had failed.
The issue was Section 45 of the 1996 Act states: "Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 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."
Article II(3) of the New York Convention states: "The court of a contracting state, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed." referred to a seven-judge bench of the Supreme Court for a definitive ruling, and the court by a majority of 6-1 held that the Chief Justice, while discharging this function, is entitled to adjudicate on contentious preliminary issues such as the existence of a valid arbitration agreement.
It rejected the argument that the chief justice’s role be limited to a prima facie review of the facts while making such a determination and instead held that the chief justice was entitled to call for evidence to resolve jurisdictional issues. Significantly, the Supreme Court ruled that the Chief Justice’s findings on these preliminary issues would be final and binding on the arbitral tribunal. This makes a mockery of the well established principle of Competence-Competence—the power of an arbitral tribunal to determine its own jurisdiction—as enshrined in section 16 of the 1996 Act. It also encourages parties to sabotage the appointment process of arbitrators, to make spurious arguments about preliminary issues, and to use evidentiary hearings in courts to delay arbitral proceedings. Almost fifteen months after Patel Engineering, the Supreme Court was again faced with the issue of whether a dispute existed between the parties that must to be referred to arbitration in Agri Gold Exims Ltd. v. Sri Lakshmi Knits and Wovens. Although the Court did not discuss Shin-etsu or Patel Engineering, the limited standards of review, which it applied in determining the arbitrability of a dispute, made it significant for the purposes of Competence-Competence.
Section 8 of the 1996 Act states: "(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement 58 approach in Agri Gold is consistent with Shin-etsu in championing a pro-arbitration attitude involving minimal interference by courts in the arbitral process. Agri Gold is a step in the right direction as it shows an inclination on the part of Indian courts to respect arbitration clauses and hold parties to their bargain by referring them to arbitration.
Judicial review of the merits of arbitral awards by national courts whether in the United States or India, clearly runs the risk of impinging upon arbitration as an effective method of dispute resolution. The trend has been such that the, parties to an arbitration agreement can no longer be confident that an arbitral award, once rendered, is final. If disputes are anyway going to end up in courts, there is very less incentive for parties to arbitrate in the first instance. In sum, it is clear that judicial standards of review, like judicial precedents, are not the property of private litigants. Arbitration's goals are unquestionably best served by ensuring the finality of arbitration awards This is consistent with the bargain the parties have made, and the remedy for any flaws in the system of arbitration should be for having the parties to choose better arbitrators, not to appeal arbitration awards. However on a positive note, at least one commentator has argued that the frequency of judicial review of awards has not sapped
Nalini R - Research Scholar, Bangalore University, Bangalore.
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