2007 (7) TMI 707 - HC - Indian Laws

Enforcement of Foreign Arbitration Award Upheld under Arbitration and Conciliation Act, 1996

The petition for enforcement of a foreign arbitration award was deemed maintainable under the Arbitration and Conciliation Act, 1996. The court upheld the ... Enforceability of foreign arbitral award - validity of arbitration agreement evidenced by electronic records - admissibility under Section 65B of the Evidence Act - finality of foreign arbitral award under foreign law - public policy of India - scope of Sections 45 to 48 of the Arbitration and Conciliation Act, 1996 - distinction between challenge under Section 34 and enforcement under Section 48Validity of arbitration agreement evidenced by electronic records - admissibility under Section 65B of the Evidence Act - Printouts of emails, certified by affidavit, satisfy the evidentiary requirements and can be treated as the agreement for arbitration for enforcement purposes. - HELD THAT: - The petitioners produced hard/printed copies of email correspondence certified by an affidavit of a broker who stated that he had authored/seen and forwarded the emails and that the hard copies were true reproductions of the electronic records. The Court held that, in the facts of this case, the affidavit amounted to sufficient compliance with Section 65B of the Evidence Act and that the certified hard copies/printouts could be treated as the certified copy of the agreement for arbitration required under the Arbitration Act-1996. The office endorsement treating the printouts 'as Certified original print out' was consistent with this view, and the respondents ultimately did not contest that these were the certified hard copies upon which the Singapore Tribunal acted. [Paras 5, 6, 8, 9]The certified hard copies/printouts of the emails comply with Section 65B and constitute the agreement for arbitration for the purpose of enforcement.Enforceability of foreign arbitral award - finality of foreign arbitral award under foreign law - scope of Sections 45 to 48 of the Arbitration and Conciliation Act, 1996 - distinction between challenge under Section 34 and enforcement under Section 48 - public policy of India - The Singapore Tribunal's findings on jurisdiction, existence of a concluded contract and the arbitration agreement having attained finality under Singapore law preclude re agitation of those issues in an Indian enforcement proceeding; the award is not contrary to Indian public policy and is enforceable in India. - HELD THAT: - The arbitral tribunal in Singapore had considered and decided preliminary issues on jurisdiction, existence of a concluded agreement and the validity of the arbitration clause by orders dated 29th August, 2005 and 9th October, 2006, and those orders became final as no appeals were filed within the prescribed periods under Singapore law. Having been so decided and having attained finality, the respondents could not relitigate before this Court the same questions which the tribunal had resolved. Sections 45 to 49 of the Arbitration Act-1996 are to be considered from the standpoint of enforceability of the foreign award in India; they do not empower Indian courts to re-open merits decided by the foreign tribunal where the award is final. Applying these principles, the Court found no basis that the award was contrary to public policy of India, no allegation of fraud or incapacity was established, the parties had full opportunity to be heard, and the tribunal acted within its jurisdiction. Consequently the foreign award is enforceable as a decree of this Court. [Paras 16, 17, 23, 24, 25]The Singapore awards have attained finality, the tribunal's determinations preclude re agitation in this enforcement petition, the award is not contrary to Indian public policy, and the petition to enforce the award is allowed.Final Conclusion: The petition is allowed and the foreign arbitral award dated 9th October, 2006 is declared enforceable as a decree of this Court; no costs. Issues Involved:1. Maintainability of the petition for enforcement of a foreign arbitration award.2. Existence and validity of the arbitration agreement.3. Jurisdiction and authority of the Arbitral Tribunal.4. Enforceability of the foreign arbitration award in India.Summary:Issue 1: Maintainability of the petition for enforcement of a foreign arbitration awardThe petitioners invoked Part II and specifically Sections 45 to 48 of the Arbitration and Conciliation Act, 1996 ('Arbitration Act-1996') to enforce foreign awards dated 29th August 2005 and 9th October 2006 made in Singapore. The petition was initially objected to by the respondents for lack of original or certified copies of the arbitration agreement. The petitioners later filed an affidavit with certified hard copies of emails, which the court accepted as sufficient compliance with Section 65B of the Evidence Act.Issue 2: Existence and validity of the arbitration agreementThe respondents contended that there was no concluded contract or agreement between the parties, and thus no valid arbitration agreement. However, the Tribunal had already determined the existence of a valid arbitration agreement, and the respondents did not appeal this decision. The court held that the respondents could not re-agitate this issue in the present petition.Issue 3: Jurisdiction and authority of the Arbitral TribunalThe Tribunal addressed preliminary issues regarding its jurisdiction and the validity of the arbitration agreement, concluding affirmatively on all points. The Tribunal's decisions were not appealed by the respondents, making the awards final and unappealable under Singapore law. The court found no grounds to challenge the Tribunal's jurisdiction or authority.Issue 4: Enforceability of the foreign arbitration award in IndiaThe court found that the foreign award was not contrary to public policy in India and was enforceable under Indian law. The award was deemed binding as it was not set aside or suspended by any appellate court in Singapore. The court rejected the respondents' objections and allowed the petition, declaring the arbitration award enforceable as a decree of the court.Conclusion:The petition was allowed, and the arbitration award dated 9th October 2006 was declared enforceable as a decree of the court. No costs were awarded.