Challenges in Enforcing Awards in Investor State Disputes
For many centuries, the pursuit of justice has been a universal human aspiration. Aspirations such as justice-social, economic, and political may be found in the Constitution's preamble. According to the Constitution, Article 39-A ensures that everyone has equal access to the court system. Adversarial litigation isn't the only way to settle conflicts, as the world has seen. Overcrowding in courtrooms, a scarcity of personnel, and other issues including delay, expense, and formality all point to the need for more innovative solutions. If you want to use an ADR mechanism, all you have to do is click on it. The Indian court infrastructure as it is right now is insufficient to deal with the increasing volume of litigation in a fair amount of time. Despite their best efforts, the average person may get mired in litigation for the rest of their lives, and it can even extend to the next generation in certain cases. In addition to being harassed, he risks depleting his resources in the process. All those involved in the administration of justice have a long-term interest in expediting cases and delivering high-quality justice, as has been correctly stated. The existing infrastructure of courts must be supplemented with ADR procedures as soon as possible in this context. ADR systems are being made available throughout the globe for settling ongoing disputes and at the pre-litigation stage, in addition to improving the efficiency of the judiciary's work. The sad reality is that we may be on our way to a society invaded by hordes of attorneys, ravenous as locusts, and bridges of Judges in numbers never before imagined, said former American Supreme Court Chief Justice Warren Burger. No, it's not true that the average person wants a courtroom with black robed judges, well-dressed attorneys, and ornate paneling to settle their conflicts in. People who have legal issues, like those who are in pain, want relief, and they want it as soon and cheaply as possible.
In all, ADR arbitration has risen to prominence as the preeminent ADR form. As a result, its usefulness has grown. Aside from court adjudication, it's very popular since it's the only option. Each country has had a distinct legal, social, and cultural evolution throughout its history. When foreign parties are involved in commercial discussions, they may come into differences. Even if the parties can come to terms, litigation may be necessary to assist them settle their differences. Litigation may be a barrier for parties because of the various laws and processes that apply in different countries. To resolve this issue, litigation may not be the best option. The private and impartial character of arbitration makes it an ideal dispute settlement technique.
In light of this, it's critical to assess if Indian arbitration law, as it now exists, is effective after being shaped by numerous conventions, treaties, laws, rules, and Acts, among other things. Accordingly, we're looking at legislative provisions as well as judicial approaches in the current study.
Shorter oxford English dictionary: (3rd. edition – 1996).
Halsbury‘s laws of England: (4th. edn. butterworths 1991) para 601, 332
Black's Law Dictionary, 6th edn. (1990), West Publishing Co., p.105.
Available at http://www.duhaime.0rg/LegalDictionary/A/Arbitration.aspx, (last accessed on April 17, 2016).
Chanbasappa Hiremath AIR 1927 Bom 565-568-69(F.B)
United Nations Treaty Series Vol. 330 No. 4739, 38. It was adopted by the United Nations Economic and Social council on 10th June 1958 to bring about the uniformity in Recognition and enforcement of the arbitral awards. It consists of 16 articles and has been ratified by 146 countries as on September 2012.
New York Convention, Article II (1)
Inter –American Convention, Article 1.
European Convention, Article I(2)(a)
See for example the English Arbitration Act, 1996, section 4 and the Rome Convention, article 1,3 and 7. Indian Arbitration Act however does not allow the parties to decide the procedural law governing the arbitration.
(1998) 1 SCC 305: AIR 1998 SC 825: 1998 AIR SCW 556: 1998 (1) SCJ 233.
AIR 1992 SC 732 .
Sub-section 2 of Section 3 in Chapter II of the Arbitration Act, 1996 reads as: ―The Commission shall consist of not less than two, [but not exceeding four] members appointed by the Central Government ...‖
S.C.Tripathi. ―Law of Arbitration & Conciliation in India with Alternative Means of Settlement of Disputes Resolution, Sixth Ed. Allahabad: Central Law Publications, (2012), 117.
(1824) 2 Bing 229.
Andrew Tweeddale and Keren Tweeddale, Arbitration of commercial dispute392 (OUP Oxford, 1stedn, 2005)
Supra Note 1
Gary Born, International Arbitration: Cases and Materials (Aspen Casebook Series) 1035 (Aspen Pub, 2010).
S. 34(2) (b) (ii), Arbitration and Conciliation Act, 1996
Explanation to Section 34 of the Arbitration and Conciliation Act, 1996
Geneva Convention on Execution Of Foreign Arbitral Award, 1927
Art. 2, Geneva Convention, 1927.
Section. 27, the Indian Contract Act, 1872.
1994 Supp (1) SCC 644
(2003) 5 SCC 705
S. 68, English Arbitration Act allows challenges to an award due to serious irregularity and Section 69 allows an appeal to the court on a question of law.
Aloke Ray and Dipen Sabharwal, ―What Next for Indian Arbitration?‖ The Economic Times, Aug. 29, 2006.
CIVIL APPEAL NO.7019 OF 2005.
(2005) 7 SCC 605).
1994 Supp (1) SCC 644
O.M.P.(EFA)(COMM.) No. 6 of 2016.
However, after following the wrong interpretation for a decade Supreme Court corrected its stance in Bharat Aluminum case in September 2012. This is welcome decision and has corrected the position in regard to the enforcement of the foreign awards in India.