Singapore has long served as one of the most attractive arbitral seats in the world. The Singapore International Arbitration Centre (SIAC) and the Singapore Maritime Chambers of Arbitration (SCMA) are among the prominent global arbitral institutions housed in Singapore. Both SIAC and SCMA have their own set of arbitration rules, which are complemented by the Singapore International Arbitration Act (IAA) in governing a Singapore seated arbitration.

While Singapore boasts a robust and progressive arbitral regime, parties are often anxious when it comes to enforcing a foreign award in India. This two-part post is therefore an attempt to demystify the process of enforcing a Singapore based award in India.

Gateway to India

Once a tribunal renders its award, it becomes binding^[1] upon the parties and on any persons claiming through or under them (the Award). The Award can then be enforced in the manner of a judgment or an order of the court upon obtaining leave^[2] of the Singapore High Court.

Enforcement of the Award can be challenged in Singapore on any of the grounds set out in Article 34(2) of the Model Law and Section 24^[3] of the IAA. If the award-debtor makes out any such ground, the Singapore High Court will set aside the Award. The procedure in this regard is governed by the Singapore Rules of Court – of which Orders 69 and 69A deal with arbitration matters – and the Singapore Supreme Court of Judicature Act.

If the Award is set aside in Singapore, it will not be enforced in India^[4]. If, on the other hand, the Award emerges unscathed, then the award-holder will be entitled to execute the Award in India as per the provisions the Indian Arbitration and Conciliation Act, 1996 (the Arbitration Act) since Singapore is signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the New York Convention).

Filing an Execution Application in India

Previously, an award-holder was required to file a separate suit[5] seeking a foreign award to be pronounced as a decree of the relevant Indian Court. Execution would follow.

However, after the Arbitration Act came into force on 25 January 1996, it was clarified by the Indian Supreme Court in Fuerst Day Lawson v. Jindal Exports (2001) that a foreign award – which is passed after the Arbitration Act came into force – is already deemed to be stamped as a decree; and no separate proceedings are required for determining its enforceability. Instead, the award-holder can directly file an application for execution of the Award in accordance with the provisions of the Civil Procedure Code, 1908 (CPC).

That said, Section 47 of the Arbitration Act requires the award-holder to comply with the following pre-requisites for recognition of a Singapore-based award:

• Original/copy of the Award duly authenticated in accordance with the laws of Singapore;
• Original/copy of the agreement for arbitration duly certified in accordance with the laws of Singapore; and
• Such other evidence as may be necessary to prove that the award is a foreign award.

Jurisdiction of Indian Courts

The proviso to Section 47 of the Arbitration Act indicates that an application seeking enforcement of the award is required to be made before the High Court in India having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-matter of a suit on its original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court.

The Bombay High Court has clarified in Tata International v. Trisuns Chemical Industry (2002) that the subject matter of a foreign award is intended to mean the relief granted therein; such as payment of monies or specific performance. Where the assets of an award-debtor are located in the territorial jurisdiction of more than one court in India, the award-holder can even file execution petitions simultaneously in all such courts^[6].

An award-holder will be required Section 10 of the Commercial Courts Act, 2015^[7] to file the requisite application before the Commercial Division of the relevant High Court where the amount in dispute is not less than the equivalent of INR 300,000^[8].

Modes of Enforcing the Award and Provisional Measures

Depending on the nature of relief awarded, the powers^[9] of the Court to ensure enforcement of the Award include the following:

1. Attachment and sale of moveable and immoveable property;
2. Sale of property in question;
3. Arrest of and detention in civil prison of the award-debtor; and
4. Delivery of property in question.

If the award-debtor is directed to pay a sum of money[10] to the award-holder, for instance, then the Award may be executed by the detention in the civil prison of the award-debtor, or by the attachment and sale of his property or by both. If the Award is for delivery of moveable property[11], it will be executed by seizure (if practicable) of the property and delivery thereof to the award-holder or its appointee in this regard; or by detention in the civil prison of the award-debtor, or by the attachment and sale of his property or by both. On the other hand, in the case of immoveable property[12], the Award is executed by delivery of possession of immoveable property to the award-holder or its appointee in this regard.

Further, the award-holder may also seek deposit of security by and other interim measures against the award-debtor. During the process of enforcement, the award-holder can file an application before the executing court to seek a disclosure of the award-holder’s assets; an injunction against alienation/creation of any encumbrance on the property; and appointment of a court receiver^[13] to take possession of the award-debtor’s assets.

Stay of Enforcement

The award-debtor, upon showing sufficient cause, is entitled under Rule 26 of Order XXI CPC to apply for a stay of the execution proceedings for a reasonable period of time. Section 48(3) of the Arbitration Act also separately provides for such a stay in case the Award is challenged in Singapore.^[14]

However, especially when the award-debtor has assets in India, the Court may direct the award-debtor to deposit security with the Court even when such a stay is warranted^[15]. In fact, Rule 26(3) of CPC Order XXI creates an obligation on the Court to require security or impose other conditions on the award-debtor before granting a stay on the enforcement proceedings.

Up next

The second part of the post will deal with the possible challenges to the enforcement of the Award and scope for appeal in this regard along with issues of limitation, stamp duty and court fees. Part II will also briefly discuss issues concerning enforcement of emergency awards in India.

[The author would like to sincerely thank Mr. Kingshuk Banerjee for his insights on and editorial contributions to this post. Mr. Banerjee is a Partner at Wadia Ghandy & Co., Mumbai]

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[1] Section 19B(1) of the IAA.

[2] Section 19 of the IAA.

[3] 24. Notwithstanding Article 34(1) of the Model Law, the High Court may, in addition to the grounds set out in Article 34(2) of the Model Law, set aside the award of the arbitral tribunal if — (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced.

[4] Section 48(1)(e) of the Arbitration Act

[5] See, Sections 5 and 6 of Foreign Awards (Recognition and Enforcement) Act, 1961 read with Section 17 of the Arbitration Act, 1940

[6] See, Bulk Trading SA v Dalmia Cement (Bharat) Limited (2005 SCC Online Del 1389);

[7] The complete title is “the Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015”

[8] See, Section 4(II) of the Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts (Amendment) Ordinance, 2018

[9] See, Section 51 of the CPC read with Rule 11(2)(j) of Order XXI, CPC; see also “Mode of Execution” at Order XXI.

[10] See, Rule 30 of Order XXI CPC

[11] See, Rule 31 of Order XXI CPC

[12] See, Rule 35 of Order XXI CPC

[13] Rule 1(1)(a) of Order XL, CPC.

[14] Section 48 (3) of the Indian Act.

[15] Naval Gent Maritime Limited v Shivnath Rai Harnarayan Limited 2009) SCC Online Del 2961