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In a win for party autonomy, a three-judge bench of the Supreme Court, comprising Mr Justice RF Nariman, Mr Justice BR Gavai and Mr Justice Hrishikesh Roy, has settled a longstanding and controversial question of law by holding that two entities or companies incorporated in India can opt for foreign-seated arbitration and that an award passed in such arbitration would be enforceable in India ( PASL Wind Solutions Private Limited v GE Power Conversion India Private Limited, 20 April 2021). Facts The parties were companies incorporated in India. In 2010 the appellant issued three purchase orde...

Tuesday, May 4, 2021 Two Indian parties are entitled to elect a seat of arbitration outside India; The expression “International Commercial Arbitration” in Part I of the Arbitration Act is party-centric, whereas, when used in the context of Part II signifies a place-centric approach; Resultantly, a foreign seated arbitration between two Indian parties would qualify as “International Commercial Arbitration” under Part II of the Arbitration Act, and enforcement of a foreign award arising thereunder will have to be filed before the High Court; Two Indian parties are entitled to...

The aforesaid statement [1] depicts the elusive nature of ‘public policy’ in legal proceedings that draw upon its presence in statute, conventions and legal systems. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“ New York Convention”) is a critical international convention that gives room for public policy considerations while assessing enforcement of a foreign arbitral award (foreign award). Article V(2)(b) of the New York Convention states: “(V)(2) Recognition and enforcement of an arbitral award may also be refused if the competent authority...