For a foreign award-holder, winning an arbitration is only the first battle. Turning that award into actual recovery requires navigating the legal systems of the jurisdictions where the losing party has assets — and in the case of India, that means engaging with a legal framework that has evolved significantly over the past three decades. This post explains how enforcement of foreign arbitral awards works under Indian law, what the 2024 Draft Arbitration and Conciliation (Amendment) Bill proposes to change, and what a foreign award-holder needs to do in practice.

The Legal Framework: New York Convention and Part II of the Act

India acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the “New York Convention”) in 1960. The Convention is incorporated into Indian domestic law through Part II of the Arbitration and Conciliation Act, 1996 (the “Act”), specifically Sections 44 to 52.

Section 44 of the Act defines a “foreign award” as an arbitral award made in pursuance of an arbitration agreement (as defined in the Act) in a territory that is a party to the New York Convention, on differences between persons arising out of legal relationships, whether contractual or not, that are considered commercial under Indian law.

A critical practical point: India has notified its accession to the New York Convention on both the “reciprocity reservation” and the “commercial reservation” basis. The reciprocity reservation means that Indian courts will enforce foreign awards only if they were made in territories that India has officially notified as reciprocating countries. The list of reciprocating countries is maintained by the Ministry of Law and Justice. Award-holders should verify at the outset that the country of the seat is on India’s reciprocating list.

The Court of First Instance for Enforcement

Under Section 47 of the Act, the party seeking enforcement must apply to the High Court having jurisdiction over the matter. The Supreme Court in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2011) held that an enforcement application is itself the execution petition — a separate execution application is not required. The award-holder may apply directly to the High Court of the state where the judgment-debtor has assets.

This was further refined in Sundaram Finance Ltd. v. Abdul Samad (2018), where the Supreme Court held that the award-holder may directly approach the court in the jurisdiction where the assets are located, without needing to first obtain a decree from the court in any particular seat or establish a primary enforcement forum. This flexibility significantly benefits award-holders whose debtors have assets spread across multiple states.

Grounds for Refusing Enforcement Under Section 48

Section 48 of the Act sets out the exhaustive grounds on which an Indian court may refuse to recognise or enforce a foreign award. These grounds mirror Article V of the New York Convention closely. They fall into two categories.

Party-invoked grounds (Section 48(1)): The party resisting enforcement may apply to the court to refuse enforcement on the following grounds, all of which must be proved by that party:

(a) Incapacity of a party to the arbitration agreement, or invalidity of the agreement under the applicable governing law.

(b) Lack of proper notice of the appointment of the arbitrator or of the arbitral proceedings, or inability of a party to present its case.

(c) The award deals with a dispute not falling within the scope of the arbitration agreement, or contains decisions on matters beyond the submission to arbitration. (In this ground, the proviso expressly permits partial enforcement — the court may enforce the parts of the award that were within the scope of submission, if those parts can be separated.)

(d) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the parties’ agreement or, failing agreement, the law of the country where the arbitration took place.

(e) The award has not yet become binding, or has been set aside or suspended by a competent authority of the country of the seat.

Court-invoked grounds (Section 48(2)): The court may, on its own motion, refuse enforcement on two grounds:

(a) The subject matter of the dispute is not capable of settlement by arbitration under Indian law (non-arbitrability).

(b) Enforcement would be contrary to the public policy of India.

The Narrowing of “Public Policy” After the 2015 Amendment

Prior to the Arbitration and Conciliation (Amendment) Act, 2015, Indian courts applied a broad and judicially expansive concept of “public policy” that had become a significant impediment to foreign award enforcement. The 2015 amendment introduced two crucial changes.

First, it defined “public policy of India” for the purposes of Section 48(2)(b) narrowly — an award is contrary to public policy only if (i) it was induced or affected by fraud or corruption, (ii) it is in contravention of the fundamental policy of Indian law, or (iii) it is in conflict with the most basic notions of morality or justice.

Second, the amendment confirmed that the “fundamental policy of Indian law” ground in the enforcement context must be interpreted narrowly and consistent with internationally accepted standards — unlike the domestic award challenge context under Section 34, where the concept is somewhat broader.

The Supreme Court has consistently applied a pro-enforcement approach post-2015. In Vijay Karia v. Prysmian Cavi E Sistemi SRL (2020), the Court confirmed that Section 48 grounds are to be narrowly construed and that the merits of an award cannot be re-examined by the enforcing court. The Court reiterated that party autonomy and the finality of awards are the overriding values in the enforcement context.

What the 2024 Draft Amendment Bill Proposes for Enforcement

The Draft Arbitration and Conciliation (Amendment) Bill, 2024 does not fundamentally restructure Part II of the Act or alter the substantive enforcement framework. However, several proposals in the Bill have significant indirect implications for enforcement.

Appellate Arbitral Tribunal: The Bill introduces Section 34-A, which allows institutional rules to provide for an Appellate Arbitral Tribunal to entertain challenges to India-seated awards (currently heard under Section 34 by courts). This applies to Part I — but the existence of an appellate arbitral mechanism for India-seated international commercial arbitrations may influence how courts approach the Section 48(1)(e) ground (award not yet binding or set aside) in enforcement proceedings for awards that have gone through a domestic appellate arbitral process before being brought for enforcement in India.

Emergency Arbitration and Section 9-A: The Bill introduces Section 9-A to recognise emergency arbitrators and make their orders enforceable. For foreign-seated international arbitrations where the seat state’s law recognises emergency arbitrators, this provision may also affect interim relief applications filed in Indian courts in connection with pending enforcement.

Seat/Venue Codification: The Bill’s proposed codification of the seat/venue distinction in Section 20 of the Act will reduce future litigation about which court has jurisdiction to entertain enforcement applications for Part I matters, which feeds indirectly into the enforcement landscape.

Omission of Conciliation Provisions: The Bill proposes to omit Part III of the Act (conciliation) in light of the Mediation Act, 2023. This has no direct bearing on enforcement but simplifies the legislative architecture that courts navigate.

Stamping: The Bill also addresses the mandatory stamping of arbitral awards — a significant practical reform, as unstamped or insufficiently stamped awards have historically been challenged in enforcement proceedings on the ground that the award is inadmissible in evidence under the Indian Stamp Act, 1899. The Bill proposes to mandate that awards state on their face that stamp duty has been properly addressed, reducing this ground of attack.

Practical Steps for Enforcing a Foreign Award in India

For an award-holder seeking to enforce a foreign arbitral award in India, the process unfolds as follows:

  • Verify that the award was made in a New York Convention reciprocating country notified by India.
  • Identify the appropriate High Court — either the High Court having jurisdiction over the judgment-debtor or the High Court in the state where the judgment-debtor’s assets are located (per Sundaram Finance).
  • File the enforcement application (which is simultaneously the execution petition, per Fuerst Day Lawson) before that High Court. Under Section 47, the following documents must accompany the application: (a) the original award or a duly authenticated copy; (b) the original arbitration agreement or a duly certified copy; and (c) any evidence required to establish that the award is a foreign award under Part II. If the award is not in English, a certified translation must be provided.
  • The High Court examines whether the award falls within the definition of a “foreign award” under Section 44 and whether any Section 48 grounds apply.
  • If the court finds the award enforceable, it is deemed to be a decree of that court under Section 49 and can be executed accordingly — including by attachment and sale of the judgment-debtor’s movable and immovable assets, garnishee orders on bank accounts, and other execution mechanisms under the Code of Civil Procedure, 1908.
  • Be prepared for Section 48 objections, which the judgment-debtor will almost certainly raise. Strong awards with clear reasons, properly constituted tribunals, and carefully drafted arbitration agreements that comply with Section 44’s requirements will withstand these objections.

One practical note on timing: the Act does not prescribe a limitation period specifically for foreign award enforcement applications. However, Section 43 of the Act states that the Limitation Act, 1963 governs arbitrations under the Act. The applicable limitation period is generally twelve years from the date the award becomes enforceable (treating it as a decree for limitation purposes), though this point has generated some case law and should be verified for the specific jurisdiction.

The trajectory of Indian courts on foreign award enforcement is clearly in the direction of greater efficiency and pro-enforcement approach, aligned with India’s aspirations to be a leading seat and enforcement jurisdiction for international commercial arbitration.

Key Takeaways

  • Foreign arbitral awards are enforced in India under Part II of the Arbitration and Conciliation Act, 1996, which incorporates the New York Convention framework.
  • India’s accession to the New York Convention is on reciprocity and commercial reservations — the seat country must be an India-notified reciprocating country.
  • Section 48 sets out the exhaustive, narrowly construed grounds for refusing enforcement: five party-invoked grounds and two court-invoked grounds (non-arbitrability and public policy).
  • Post-2015, “public policy” as a ground for refusal is defined narrowly — restricted to fraud/corruption, breach of fundamental policy of Indian law, or conflict with basic notions of morality or justice.
  • The award-holder files a single enforcement/execution application before the High Court of the state where the judgment-debtor or their assets are located (per Fuerst Day Lawson and Sundaram Finance).
  • Once found enforceable, a foreign award is deemed a court decree under Section 49 and executed as such.
  • The 2024 Draft Amendment Bill proposes important reforms — including stamping requirements, emergency arbitration recognition, and seat/venue codification — with indirect implications for enforcement proceedings.
  • Indian courts have consistently moved toward a pro-enforcement posture; merits of the award cannot be re-examined at the enforcement stage.

About Sterling & Partners
Sterling & Partners is a litigation-focused law firm with chambers at the Supreme Court of India, New Delhi, and an office in Greater Kailash-2. The firm advises domestic and international clients on the enforcement of foreign and domestic arbitral awards, including enforcement applications before the High Courts and related Supreme Court proceedings.