We’ve blogged about the importance of professional English into Hindi translation services in patent law and during arbitration in India. Professional English into Hindi translation services also come in handy in enforcing foreign judgments in India.
According to Indian law, there are two possible routes available to enforcing a foreign judgments:
- Judgments from courts in ‘reciprocating territories‘ (as declared in the Official Gazette and including the United Kingdom) can be enforced directly via the filing of an Execution Decree before the Indian courts
- Judgments from ‘non-reciprocating territories‘ (i.e., the United States), can be enforced only by filing a law suit in an Indian court for a judgment based on the original, foreign judgment.
Needless to say, both routes will require professional legal translation services. This is of particular importance with the non-reciprocating route, as a careful foreign language translation is essential since the original judgment is viewed as evidentiary and thus the courts will likely base their decision on this evidence. It is also important to note that Indian law places a strict time limit on the filing of a lawsuit based on a foreign judgment of three years from the date the foreign judgment was issued.
Typically obtaining a judgment based on a foreign judgment is a straightforward process as long as the evidence (i.e., the original foreign judgment) is conclusive. According to Indian law, a foreign judgment from a non-reciprocating state will be found conclusive as to any matter directly relating to the parties and issue(s) found in the foreign judgment. Exceptions to this (or when a foreign judgment will be ruled non-conclusive), include:
- Where the foreign judgment was issued by a court of a non-competent jurisdiction
- Where the foreign judgment was not given on the merits of the case
- Where the foreign judgment appears to be based on a misapplication of international law or a refusal to recognize the law of India
- Where the foreign proceedings were ‘opposed to natural justice’
- When the foreign judgment was obtained via fraud
- Where the foreign judgment is itself in breach of Indian law
The process for enforcing a foreign judgment in India commences with the filing of an application to the relevant court with the following documents in attachment:
The original, authenticated copy of the award
The original, authenticated copy of the agreement
All evidence that may be necessary to prove that the award is a foreign award
If all statutory conditions are fulfilled, then the foreign judgment will be deemed ‘a decree of the Indian court’ and will thus be enforceable against the party or parties subject to the judgment.
Arbitration in India
If a foreign award is based on a foreign arbitration decision, then the India Arbitration and Conciliation Act of 1996 comes into play. The law is based on the Model Law on International Commercial Arbitration and it provides the framework for enforcing a foreign arbitration award in India, along with grounds for refusing enforcement (Section 48).
India’s arbitration law will recognize a foreign arbitral award if it comes from a country that has either signed the 1927 Convention on the Execution of Foreign Arbitral Awards (i.e., the Geneva Convention) or the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (i.e., the New York Convention). However, even if this initial requirement is satisfied, the foreign arbitration award is not guaranteed to be enforced in India.
First, the India law requires a notification by the Central Government declaring that the country from which the foreign arbitration award comes is a country (or territory) to which the New York Convention is applicable. Today only 40 countries have been given this notification (they include the US, UK, France, Germany and Japan, among others).
If the award comes from a country not on this list, then, according to the Indian case law, the arbitration award will not be considered a foreign award and thus a separate action will have to be filed. This involves a two-step process. The first step requiring the court to make a determination that the award is enforceable per Indian law and, if so, the second step to execute a judgment for enforcement.
On the other hand, if the court is satisfied that the foreign award is enforceable, then that foreign award is deemed a decree of the Indian court and no additional application will need to be filed.