Authored By: Alima Khan, United University (B.A.LL.B (Hons), Research Writer at Law Audience®,
Edited By: Mr. Varun Kumar, Advocate, Himachal, Punjab & Haryana and Founder at Law Audience.
Abstract:
Perception of foreign arbitral awards and their implementation constitute the intellectual base of international commercial arbitration, which allows managing the awards issued in one jurisdiction to be recognised and enforced in another, thus confirming the efficiency of arbitration as the most appropriate way of settling disputes on an international level. Recognition is judicial acknowledgement of the authenticity of an award, its definitiveness and res judicata status and enforcement is the inclusion as a decree in the local legal system, which may be judicially enforced through coercion.
The New York Convention was a revolution of the Geneva Convention, 1927 and was preceded by the Geneva Protocol of 1923, which required referral to arbitration and the Geneva Convention of 1927, which had a double finality requirement. Ratified by more than 170 countries, this Convention drives its enforcement from Article III, has seven exhaustive grounds laid in Article V, and requires minimum documentation under Article IV, transforming the enforcement of this Convention across the world.
The international system is not just restricted to the New York Convention but includes the standard limited intervention by the court under the UNCITRAL Model Law of 1985, which was later amended in 2006, and expert systems such as the ICSID Convention on investor-state disputes.
Keywords
Arbitration, Enforcement, Globalisation, Conventions, Awards.
Introduction and Meaning:
The prominence and enforcement of foreign arbitral awards in the globalisation of international commercial dealings, where in transcontinental international commercial transactions, different legal systems are employed, becomes a key element in achieving the effectiveness of arbitration as a mode of dispute resolution between the two countries. Arbitration has its own unique benefits over litigation, such as privacy, an expert appointed by the parties, flexibility in procedures and finality. However, its effectiveness gets hampered without effective enforcement across national borders. Recognition, conversely, is a judicial acknowledgement of the authenticity, finality and binding nature of a foreign award which serves as a res judicata and bars re-litigation of issues previously resolved upon. This is operationalised by enforcement, which integrates the award into the domestic legal system, making it enforceable as a court order by coercive remedies, which include asset seizure, the sale of property or the garnishee order or injunctive remedy under the provisions of procedural law codified in such acts.
The recognition of a foreign arbitral award is the judicial procedure through which a court in the enforcement jurisdiction formally recognises the authenticity, finality and binding quality of the award and therefore gives it res judicata effect, and the settled dispute is not to be relitigated. This is done to ensure that the award is a legitimate product of a foreign-seated arbitration whereby the legal place is not based in the host country, unlike domestic awards that are governed by national laws. There then comes enforcement as the working stage, with the identified award becoming a part of the local legislation and being regarded as a decree of the court, permitting the introduction of the practical remedies to the matter, such as the attachment of assets, their sale, garnishings, or injunctions under civil procedure regulations.
This is a two-fold mechanism that promotes international comity whereby nations respect arbitral processes wherein they reciprocate such processes and minimise home bias and forum shopping. One of the problems is establishing what constitutes foreignness as related to supervisory law in the seat after BALCO (2012)[1], while making sure documentation, such as the original award and agreement, is in place as required by Article IV. Lastly, it guarantees predictability, which means that the parties arbitrating on others know that awards are delivered across borders without a hitch, and the stability of global trade goes up the ladder.
Historical Background:
The rise of international trade through the geopolitical disruptions and the emergence of the unified world regime are reflected in the increase in the historical development of recognition and enforcement of foreign arbitral awards, which were initially divided into bilateral endeavours. Arbitration was present in the domestic setting of the late 19th century, though cross-border enforcement was based on an ad hoc level of reciprocity, which more often than not failed as a result of sovereign immunities and jurisdictional issues. There was a need for reform port World War I. The League of Nations adopted the first multilateral course, the 1923 Geneva Protocol on Arbitration Clause. It obligated it to the courts of signatory states to abide by the proceedings and submit disputes to arbitration in case parties had agreed through a written clause, which encouraged the legality of arbitration contracts across national boundaries.
In keeping with this, the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards permitted enforcement to be made between about 30 ratifying states, but with extremely strict conditions requiring awards to be final and binding at the seat, and to be in compliance with the procedural laws of the forum of enforcement. The signatories were only subject to reciprocity, and procedural obstacles such as establishing finality of the origin country often resulted in refusal, which negated effectiveness. As an example, awards, where a non-signatory country was involved or appealed to the origin, were not enforceable and this strangled international trade.
The devastation that was brought about by World War II revealed these shortcomings, which led to the United Nations stepping in. International Law Commission reforms were drafted, and finally resulted in the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, i.e. the New York Convention, as it is universally known. Signed in New York and came into force in 1961, it now has more than 170 contracting states and encompasses 99% of world trade.[2]
International Framework Regarding the Recognition and Enforcement of Foreign Arbitral Awards:
The international system of recognition and enforcement of foreign arbitral awards is a sound, harmonised system that aims at ensuring cross-border dispute settlement, and it is mostly based on multilateral conventions, model laws, and other complementary instruments. At its centre is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, also referred to as the New York Convention. It is well engulfed because of the fact that Article III compels signatory states to acknowledge foreign arbitral awards as binding and enforce them in full, subject to restricted exceptions, in accordance with the rules of enforcing jurisdiction. This is a pro-enforcement bias that changes the sceptical presumption to facilitate, which is a sharp contrast to the previous regimes.
Article IV also streamlines the process by establishing merely minimum conditions of evidence required, like the party seeking enforcement presenting the original arbitral award or certified copy, original arbitration agreement or certified copy and any necessary translation which is certified by an official or sworn translator. In courts, a summary prima facie test is undertaken whereby the courts avoid scrutinising the merits of a case. Refusals are at the discretion and are exhaustively stated in Article V, comprising seven grounds that fall under procedural and substantive grounds and Article VII, in its turn, permits states that contract to apply more advantageous domestic law. This flexibility has prompted popular ratification, some of which contain reservations by the states against reciprocity to other contracting parties, or commercial disputes.
The New York Convention is also complemented by the UNCITRAL Model Law on International Commercial Arbitration, which was initially promulgated in 1985 and was amended in 2006.[3] The Model Law, adopted by more than 80 jurisdictions, including the domestic regime of India, offers a pattern on which national laws are to be based on the principles of party autonomy and minimal judicial intervention. Article 5 expressly bars interventions by the court, save where it is stipulated, and Article 36 resembles Article V refusal of setting aside or enforcement appeal. Interim measures, clarification of competence-competence were introduced and made the amendments much more enforceable. Although it is mostly domestic, it does so by affecting foreign award enforcement through harmonisation processes across the world, minimising divergences.
In the case of investor-state disputes, there is a specialised track available to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. It operates out of the World Bank, and has conferred ICSID awards, which are enforceable as domestic court orders as final judgments, which circumvent the future New York formalities and execution obligations without exception by any public policy exception. This freedom is appropriate with bilateral investment treaties, in which most-favoured-nation provisions tend to internalise arbitration undertakings.
The gaps in the regions are filled with regional structures. Among the members of the Council of Europe, the European Convention on International Commercial Arbitration, 1961, applies to awards outside of New York, and the Inter-American Convention on International Commercial Arbitration, i.e. the Panama Convention, 1975, to awards outside of the Americas. The OHADA Uniform Act (1999) integrates enforcement in 17 states in Africa. The convention standards are reinforced in multilateral trade agreements such as CPTPP and RCEP, which include arbitration chapters.
Compliance via institutional rules of such other bodies as the International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC) is achieved by giving seat designations in pro-enforcement jurisdictions such as Singapore, London, where minimalist curial law is favoured. UNCITRAL Arbitration Rules of 1976, revised in 2021, offer ad hoc standards, wherein the focus lies on written contracts and equality.
There are still obstacles such as non-conventional nations, the different interpretations of public policy, and conflicts with insolvency laws. E-awards and blockchain verification overcome the obstacles of evidentiary thresholds in the digitalised setting. On the whole, this framework facilitates uniformity, reciprocity and comity to discourage forum shopping and to allow sovereignty. It is also the basis of FDI and trade, where parties have the assurance of awards being accompanied by remedies, as opposed to re-litigation, to foster a predictable global arbitrage environment.
Position in India:
The Indian law on the recognition and enforcement of foreign arbitral awards is holistically considered through Part II of the Arbitration and Conciliation Act, 1996, balancing the party autonomy and protection of national and international policies through comprehensive integration of the international conventions into the domestic law. This framework is indicative of the shift of India towards a pro-arbitration jurisdiction, since economic liberalisation in 1991 and subsequent changes in legislative provisions to encourage foreign direct investment (FDI) have seen the shift of India towards a historically interventionist type of judicial system.
Part II is split into two chapters. In Chapter I, there is a description of New York Convention Awards which under Section 44 are classified as arbitral awards arising as a result of the presence of a difference in relation to legal relationships, whether contractual or not, deemed commercial under Indian law, all made in the territories specified by the Central Government as reciprocating such as United Kingdom, United States, Singapore, France, UAE.[4] These awards should be written on a valid arbitration agreement, final, and binding, and they should not be subject to appeal at the seat. The second chapter consists of residual Geneva Convention Awards of non-notified territories, with similar procedures but restricted relevance nowadays.
The original jurisdiction civil court, usually High Courts, or named Commercial Courts under the Commercial Courts Act, 2015, is meant to be competently handled. [5]Section 47 states that enforcement applications need to submit the original award (or certified copy), arbitration agreement, evidence of finality and authenticated translations unless in English. Formal compliance and jurisdictional nexus are subject to prima facie review by the courts, but not scrutiny of the merits.
Section 49 states that satisfied awards are enforceable as a court decree, being executed under the Code of Civil Procedure, 1908. Public policy is a major substantive bar in Section 48(2)(b) but was drastically restricted by the 2015 Amendment. This aligns with international conventions, and such fundamental policy is restricted to breach of the constitution or violation of natural justice. This was influenced by the landmark judicial interventions. In Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.[6], the Supreme Court prospectively overturned Bhatia International (2002), which applied Part I in foreign-seated arbitrations. BALCO pointed out that Part I is only applicable to Indian seat arbitrations, and in other cases, foreign awards are made under Part II, which enforces curial law and seat neutrality at the foreign seat. This increased the confidence of such seats as Singapore or London with Indian parties.
The pro-enforcement was sped up by amendments. The Amendment that was introduced in 2015 provided schedules and reduced adjournments, as well as reinforced minimal intervention. The 2019 change to the Finance Act of Section 2(2) to permit omission of the interim measures of Part I rendered it inapplicable, and the 2021 Ordinance was an attempt to balance competitiveness by undoing the 2019 amendment.
The regime of India adds the UNCITRAL Model Law (Part I) with New York provisions, supported by such institutional backing as the Mumbai Centre of International Arbitration (MCIA). The messages grow with time, which indicates diplomacy. In the case of practitioners, it is essential to have strategic drafting of clauses and rapid filing of Section 47. This position not only supports trade, but also fulfils constitutional requirements, including Article 14 equality and Article 19(1)(g) trade freedom and comity in the world, which brings together the arbitration status of India.
Grounds for Refusal of Recognition and Enforcement of Foreign Arbitral Awards:
The reasons for denying recognition and enforcement of foreign arbitral awards are the deliberately measured exceptions to the New York Convention pro-enforcement requirement to allow a balance between arbitral finality and much-needed sovereign safeguards. In India, they are codified exhaustively in Section 48 of the Arbitration and Conciliation Act, 1996.
Refusals are not obligatory but discretionary, and it is up to the party opposing enforcement to establish such a refusal on the burden of proving that the enforcing court has carried out a prima facie satisfaction under Section 47. The rejection of minimal scrutiny by the courts denying fishing expeditions, or merits re-examination, is further supported by Explanation II of the 2015 Amendment, expressly prohibiting such evidence or illegality of foreign award review. Each ground has been broken down in this Section categorically, including statutory, judicial interpretations, and implications.
Section 48(1) lists four procedural grounds, which concentrate on basic weaknesses in the arbitral process that undermine the rights of a party. Section 48(1)(a) deals with the incapacity of one of the parties or the invalidity of the contract of arbitration. This is the case when one of the parties was legally incapacitated, such as a minor, insolvent without authority, or under the law of the seat. In the case of Renusagar Power Co. v. General Electric Co. (1994), with the former 1961 Act in place, the Supreme Court affirmed a Swiss award against exchange control violations and said that invalidity should not just make the agreement voidable. Indian law, on its own, is used to discourage any challenge, which is governed by the post-BALCO (2012) seat law.
Section 48(1)(b) deals with unsuitable notice or failure to present a case. Based on audi alteram partem, refusal happens when a party lacks adequate notice of the appointment of an arbitrator or proceedings, or when it lacks the capacity to put across its case. This is a substantive prejudice, and not a mere technicality. Section 48(1) (c) deals with an award out of the scope of submission. In case of dispute that is not placed before the arbitration board or surpassing the terms, the award can be rejected in pro rata. Section 48(1)(d) deals with abnormal composition or procedure of the tribunal. Section 48(2) enumerates three substantive reasons, which have been invoked infrequently, such as Section 48(2)(a) dealing with an award not bound, set aside or suspended at the seat. New York does not demand, as Geneva did, double finality, but only possible set-aside by a seat court. Section 48(2)(b) deals with awards not arbitrable in Indian law. Non-arbitrability encompasses the issues that are within the jurisdiction of courts, such as criminal acts, insolvency, marriage issues, communal benefit, and sovereign roles and Section 48(2)(c) gives ground for refusal on public policy.
Judicial Approach in India:
Judicial attitude toward recognition and enforcement of foreign arbitral awards in India has changed radically from an age of strong judicial activism to a strong pro-enforcement policy to give more autonomy, finality, and little scrutiny to the parties. Such a change, which is apparent in Supreme Court and High Court jurisprudence, is consistent with the Arbitration and Conciliation Act, 1996, especially Part II, and is a case of cues in legislation expressed by the 2015, 2019 and 2021 amendments. There was early opposition due to broad interpretations of public policy in the era of the pre-1996 Foreign Awards Act, 1961, which has been gradually overturned by case law since 1996 to reach an 85-90 per cent enforcement success, and rank India as competitive with other seats such as Singapore and Hong Kong.
This was pre-empted by the 1961 case, Renusagar Power Co. Ltd. v. General Electric Co.[7], which interpreted the term “public policy” in its narrow sense concerning foreign awards. Even though the Foreign Exchange Regulation Act (FERA) of India was breached, the Supreme Court maintained the award by Switzerland on the ground that, in keeping with Article V(2)(b) of the New York Convention, regulations of the law have to be in line with the international regulations, and not the domestic law. It did not accept fundamental policy as including breaches of regulation, but only awards that violate only Indian law and not the violation of fraud and natural justice. This triple test, which was the basic policy of Indian law, interests of India, and justice/morality, prepared the ground for restraint and made the review of the merits impossible.
Another breakthrough happened in Bhatia International vs. Bulk Trading SA (2002)[8] In which the Court applied Part I of the Arbitration and Conciliation Act, 1996, to foreign-seated arbitrations lacking an express contrary agreement. Such agnosticism of the seat encouraged judicial ambition, enabling Indian courts to grant anti-arbitration injunctions or interim stays, discouraging foreign seats against Indian parties. However, Bhatia was prospectively overruled in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (BALCO, 2012)[9]. Based on the interpretation of Section 2(2) of the Arbitration and Conciliation Act, 1996, the Constitution Bench decided that Part I applied solely to Indian-seat arbitrations, and not foreign-seat ones. Where the foreign award is within Part II, it is the supervisory law that controls procedure, making it neutral. Paris-seated awards were tested in terms of validity with Indian parties, which enhanced trust in offshore arbitration and met the competency.
This strategy, time-restricted, pro-autonomy, evidence-based, is the blend of constitutional due process and trade freedom, which reduces delays through e-filing. Such issues as state immunity still exist, and the reforms, such as the 2024 Bill, offer the appellate arbitration. The Indian judiciary now boasts of a comity that is competing with the world hubs.
Conclusion:
The identification and implementation of foreign arbitral awards are the quintessence of international legal comity, whereby arbitration is no longer a contractual redress but an internationally enforceable fortification of business. Uniformity is achieved through the international regime backed by the minimalism of the UNCITRAL Model Law and the autonomy of investor-state of ICSID, and Part II of the Arbitration and Conciliation Act, 1996 of India makes these uniform, through notified territories and judicial redress by the High Court.
The trend in India can be explained in terms of economic maturation from Bhatia interventionism to the 2021 Ordinance interim relief restoration and constitutional due process. Difficulties persist, there are delays in execution with sovereigns, reciprocity issues, and insolvency issues, but Commercial Courts, e-filing, and the proposed Arbitration Bill 2024 appellate mechanisms work to hasten things.
References:
Bharat Aluminium Company v Kaiser Aluminum Technical Services (2012) All India Reporter.
Bhatia International v. Bulk Trading S.A. (2002) Supreme Court Cases.
Cholera, P., 2024. Enforcement of foreign arbitral awards in India. [Online]
Available at: https://blog.ipleaders.in/enforcement-foreign-arbitral-awards-india-2/
[Accessed 24 December 2025].
Kumari, P., 2025. Enforcement Of Foreign Arbitral Award In India : Issues And Challenges. International Journal of Legal Studies and Social Sciences, 3(2), pp. 432-444.
LawTeacher, 2048. International Commercial Arbitration: Recognition and Enforcement. [Online]
Available at: https://www.lawteacher.net/free-law-essays/international-law/international-commercial-arbitration-recognition-and-enforcement-of-foreign-arbitral-awards-international-law-essay.php
[Accessed 25 December 2025].
Renusagar Power Co. Ltd. v. General Electric Co. (1994) SCC.
Sampath, S., 2025. Enforcement of Foreign Arbitral Awards in India: Legal Framework, Procedure & Evolving Jurisprudence. [Online]
Available at: https://atblegal.com/blog/dispute-resolution/arbitration/enforcement-of-foreign-arbitral-awards-in-india/
[Accessed 24 December 2025].
[1] Bharat Aluminium Company v Kaiser Aluminium Technical Services, AIR 2012 SC 2925.
[2] Priyanka Cholera, Enforcement of foreign arbitral awards in India, iPleaders (Dec. 24, 2025, 7:26 PM), https://blog.ipleaders.in/enforcement-foreign-arbitral-awards-india-2/
[3] LawTeacher, https://www.lawteacher.net/free-law-essays/international-law/international-commercial-arbitration-recognition-and-enforcement-of-foreign-arbitral-awards-international-law-essay.php (last visited Dec.24, 2025)
[4] Priya Kumari, Enforcement Of Foreign Arbitral Award In India : Issues And Challenges, 3 IJLSSS 432, 438-444 (2025)
[5] Sudha Sampath, Enforcement of Foreign Arbitral Awards in India: Legal Framework, Procedure & Evolving Jurisprudence, ATB Legal (Dec. 25, 2025, 12:09 AM)
[6] Bharat Aluminium Company v Kaiser Aluminium Technical Services, AIR 2012 SC 2925.
[7] Renusagar Power Co. Ltd. v. General Electric Co., (1994) Supp 1 SCC 644.
[8] Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105.
[9] Bharat Aluminium Company v Kaiser Aluminium Technical Services, AIR 2012 SC 2925.
