THE ARBITRATION (PROTOCOL
AND CONVENTION) ACT, 1937
ACT NO.6 OF 1937
[AS ON 1955]
An Act to make certain further provisions respecting the law
of arbitration in (the words the Provinces of were omitted by the
A.O.1950.)India.
[4th March, 1937.]
WHEREAS India was a State signatory to the Protocol on Arbitration Clauses set forth in the First Schedule, and to the Convention on the Execution of Foreign Arbitral Awards set forth in the Second Schedule, subject in each case to a reservation of the right to limit its obligations in respect thereof to contracts which are considered as commercial under the law in force in {the words "the Provinces of" were omitted by the A.O.1950.}India;
AND WHEREAS it is expedient, for the purpose of giving effect
to the said Protocol and of enabling the said Convention to become
operative in {the words "the Provinces of" were omitted by the
A.O.1950.} India, to make certain further provisions respecting the
law of arbitration;
It is hereby enacted as follows:---
1.Short
title, extent and operation:- (1)
This Act may be called the Arbitration (Protocol and Convention)
Act, 1937.
{Subs.,, ibid.}[(2) It extends to the whole of India {The
words "except Part B States" were omitted by Act 3 of 1951, s.3 and
Sch.}.]
(3) The provisions of this Act, except this section, shall
have effect only from such date as the Central Government may, by
notification in the Official Gazette, appoint in this behalf, and
the Central Government may appoint different dates{S.3 came into
effect on the 30th November, 1937, see Gazette of India, 1937, Pt.1,
p.1945; and ss.2 and 4 to 10 on the 23rd January, 1933, see ibid.,
1938, Pt.1, p.25.} for the coming into effect of different
provisions of the Act.
2.Interpretation:- In this
Act {Definition of "States" ins.by the A.O.1950 was omitted by Act 3
of 1951, s.3 and Sch}"foreign award" means an award on differences
relating to matters considered as commercial under the law in force
in {Subs., ibid., for "the states".} [India ] made after the 28th
day of July, 1924,---
(a) in pursuance of an agreement for arbitration to which the
Protocol set forth in the First Schedule applies, and
(b) between persons of whom one is subject to the
jurisdiction of some one of such Powers as the Central
Government,being satisfied that reciprocal provisions have been made
may, by notification{For such notification, see Gazette of India,
1938, Pt.I, p.24.} in the Official Gazette, declare to be parties to
the Convention set forth in the Second Schedule, and of whom the
other is subject to the jurisdiction of some other of the Powers
aforesaid, and
(c) in one of such territories as the Central Government,
being satisfied that reciprocal provisions have been made, may by
like notification, declare to be territories to which the said
Convention applies,
and for the purposes of this Act an award shall not be deemed
to be final if any proceedings for the purpose of contesting the
validity of the award are pending in the country in which it was
made.
3.Stay
of proceedings in respect of matters to be referred to
arbitration:- Notwithstanding
anything contained in the {Subs.by the Act 32 of 1940, s.3 and
Sch.11, for "Indian Arbitration Act, 1899".} [Arbitration Act 1940],
or in the Code of Civil Procedure, 1908, if any party to a
submission made in pursuance of an agreement to which the Protocol
set forth in the First Schedule as modified by the reservation
subject to which it was signed by India applies, or any person
claiming through or under him, commences any legal proceedings in
any Court against any other part to the submission or any person
claiming through or under him in respect of any matter agreed to be
referred, any party to such legal proceedings may, at any time after
appearance and before filing a written statement or taking any other
steps in the proceedings, apply to the Court to stay the
proceedings; and the Court, unless satisfied that the agreement or
arbitration has become inoperative or cannot proceed, or that there
is not in fact any dispute between the parties with regard to the
matter agreed to be referred, shall make an order staying the
proceedings.
4.Effect of foreign awards:- (1) A foreign award shall, subject to the provisions of
this Act, be enforceable in {Subs.by Act 3 of 1951, s.3 and Sch, for
"the States".} [India] as if it were an award made on a matter
referred to arbitration in {Subs.by Act 3 of 1951, s.3 and Sch, for
"the States".} [India]
(2) Any foreign award which would be enforceable under this
Act shall be treated as binding for all purposes on the persons as
between whom it was made, and may accordingly be relied on by any of
those persons by way of defence, set off or otherwise in any legal
proceedings in {Subs.by Act 3 of 1951, s.3 and Sch, for "the
States".} [India] , and any references in this Act to enforcing a
foreign award shall be construed as including references to relying
on an award.
5.Filing of foreign award in Court:- (1) Any person interested in a foreign award may
apply to any Court having jurisdiction over the subject-matter of
the award that the award be filed in Court.
(2) The application shall be in writing and shall be numbered
and registered as a suit between the applicant as plaintiff and the
other parties as defendants.
(3) The Court shall direct notice to be given to the parties
to the arbitration, other than the applicant, requiring them to show
cause, within a time specified, why the award should not be
filed.
6.Enforcement of foreign award:- (1) Where the Court is satisfied that the foreign award is
enforceable under this Act, the Court, the Court shall order the
award to be filed and shall proceed to pronounce judgment according
to the award.
(2) Upon the judgment so pronounced a decree shall follow,
and no appeal shall lie from such decree except in so far as the
decree is in excess of or not in accordance with the award
Comment: "...even the 1937 Act contain
provisions only for the enforcement of the foreign award and not for
the arbitral proceedings." Thyssen Stahlunion GMBH v. Steel
Authority of India Ltd., AIR 1999 SUPREME COURT 3923
7.Conditions for enforcement of foreign
awards:- (1) In order that a
foreign award may be enforceable under this Act it must have---
(a) been made in pursuance of an agreement for arbitration
which was valid under the law by which it was governed,
(b) been made by the tribunal provided for in the agreement
or constituted in manner agreed upon by the parties,
(c) been made in conformity with the law governing the
arbitration procedure,
(d) become final in the country in which it was made,
(e) been in respect of a matter which may lawfully be
referred to arbitration under the law of {Subs.by Act 3 of 1951, s.3
and Sch., for "States"} [India].
and the enforcement thereof must not be contrary to the
public policy or the law of {Subs.by Act 3 of 1951, s.3 and Sch.,
for "States".} [India].
(2) A foreign award shall not be enforceable under this Act
if the Court dealing with the case is satisfied that---
(a) the award has been annulled in the country in which it
was made, or
(b) the party against whom it is sought to enforce the award
was not given notice of the arbitration proceedings in sufficient
time to enable him to present his case, or was under some legal
incapacity and was not properly represented, or
(c) the award does not deal with all the questions referred
or contains decisions on matters beyond the scope of the agreement
for arbitration:
Provided that if the award does not deal with all questions
referred the Court may, if it thinks fit, either postpone the
enforcement of the award or order its enforcement subject to the
giving of such security by the person seeking to enforce it as the
Court may think fit.
(3) If a party seeking to resist the enforcement of a foreign
award proves that there is any ground other than the non-existence
of the conditions specified in clauses (a),(b) and (c) of
sub-section (1), or the existence of the conditions specified in
clauses (b) and (c) of sub-section (2), entitling him to contest the
validity of the award, the Court may, if it thinks fit, either
refuse to enforce the award or adjourn the hearing until after the
expiration of such period as appears to the Court to be reasonably
sufficient to enable that party to take the necessary steps to have
the award annulled by the competent tribunal.
8.Evidence:- (1) The Party
seeking to enforce a foreign award must produce---
(a) the original award or a copy thereof duly authenticated
in manner required by the law of the country in which it was
made;
(b) evidence proving that the award has become final;
and
(c) such evidence as may be necessary to prove that the award
is a foreign award and that the conditions mentioned in clauses (a),
(b) and (c) of sub-section (1) of section 7 are satisfied.
(2) Where any document requiring to be produced under
sub-section (1) is in a foreign language, the party seeking to
enforce the award shall produce a translation into English certified
as correct by a diplomatic or consular agent of the country to which
that party belongs or certified as correct in such other manner as
may be sufficient according to the law in force in {Subs.by Act 3 of
1951, s.3 and Sch., for "the states".} [India].
9.Saving:- Nothing in this
Act shall---
(a) prejudice any rights which any person would have had of
enforcing in {Subs.by Act 3 of 1951, s.3 and Sch., for "the
states".} [India] any award or of availing himself in {Subs.by Act 3
of 1951, s.3 and Sch., for "the states".} [India] of any award if
this Act had not been passed, or
(b) apply to any award made on an arbitration agreement
governed by the law of {Subs.by Act 3 of 1951, s.3 and Sch., for
"the states".} [India].
10.Rule-making powers of
the High Court:- The High Court may make rules consistent with this
Act as to---
(a) the filing of foreign awards and all proceedings
consequent thereon or incidental thereto;
(b) the evidence which must be furnished by a party seeking
to enforce a foreign award under this Act; and
(c) generally, all proceedings in Court under this Act.
PROTOCOL ON ARBITRATION CLAUSES
The undersigned, being duly authorised, being duly
authorised, declare that they accept, on behalf of the countries
which they represent, the following provisions:
1.Each of the Contracting States recognises the validity of
an agreement whether relating to existing or future differences
between parties subject respectively to the jurisdiction of
different Contracting States by which the parties to a contract
agree to submit to arbitration all or any differences that may arise
in connection with such contract relating to commercial matters or
to any other matter capable of settlement by arbitration, whether or
not the arbitration is to take place in a country to whose
jurisdiction none of the parties is subject.
Each Contracting State reserves the right to limit the
obligation mentioned above to contracts which are considered as
commercial under its national law.Any Contracting State which avails
itself of this right will notify the Secretary-General of the League
of Nations in order that the other Contracting States may be so
informed.
2.The arbitral procedure, including the constitution of the
Arbitral Tribunal, shall be governed by the will of the parties and
by the law of the country in whose territory the arbitration takes
place.
The Contracting States agree to facilitate all steps in the
procedure which require be taken in their own territories, in
accordance with the provisions of their law governing arbitral
procedure applicable to existing differences.
3.Each Contracting State undertakes to ensure the execution
by its authorities and in accordance with the provisions of its
national laws of arbitral awards made in its own territory under the
preceding articles.
4.The Tribunals of the Contracting Parties, on being seized
of a dispute regarding a contract made between persons to whom
Article 1 applies and including an Arbitration Agreement whether
referring to present or future differences which is valid in virtue
of the said article and capable of being carried into effect, shall
refer the parties on the application of either of them to the
decision of the Arbitrators.
Such reference shall not prejudice the competence of the
judicial tribunals in case the agreement or the arbitration cannot
proceed or becomes inoperative.
5.The present Protocol, which shall remain open for signature
by all States, shall be ratified.The ratification shall be deposited
as soon as possible with the Secretary-General of the League of
Nations, who shall notify such deposit to all the Signatory
States.
6.The present Protocol will come into force as soon as two
ratifications have been deposited.Thereafter it will take effect, in
the case of each Contracting State, one month after the notification
by the Secretary-General of the deposit of its ratification.
7.The present Protocol may be denounced by any Contracting
State on giving one year's notice.Denunciation shall be effected by
a notification addressed to the Secretary-General of the League, who
will immediately transmit copies of such notification to all the
other Signatory States and inform them of the date on which it was
received.The denunciation shall take effect one year after the date
on which it was notified to the Secretary-General, and shall operate
only in respect of the notifying State.
8.The Contracting States may declare that their acceptance of
the present Protocol does not include any or all of the
undermentioned territories: that is to say, their colonies, overseas
possessions or territories, protectorates or the territories over
which they exercise a mandate.
The said States may subsequently adhere separately on behalf
of any territory thus excluded.The Secretary-General of the League
of Nations shall be informed as soon as possible of such
adhesions.He shall notify such adhesions to all Signatory
States.They will take effect one month after the notification by the
Secretary-General to all Signatory States.
The Contracting States may also denounce the Protocol
separately on behalf of any of the territories referred to
above.Article 7 applies to such denunciation.
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL A WARDS
Article 1.---In the territories of any High Contracting Party
to which the present Convention applies, an arbitral award made in
pursuance of an agreement, whether relating to existing or future
differences (hereinafter called "a submission to arbitration")
covered by the Protocol on Arbitration Clauses opened at Geneva on
September 24th, 1923, shall be recognised as binding and shall be
enforced in accordance with the rules of the procedure of the
territory where the award is relied upon , provided that the said
award has been made in a territory of one of the High Contracting
Parties to which the present Convention applies and between persons
who are subject to the jurisdiction of one of the High Contracting
Parties.
To obtain such recognition or enforcement, it shall, further,
be necessary:
(a) That the award has been made in pursuance of a submission
to arbitration which is valid under the law applicable thereto;
(b) That the subject-matter of the award is capable of
settlement by arbitration under the law of the country in which the
award is sought to be relied upon;
(c) That the award has been made by the Arbitral Tribunal
provided for in the submission to arbitration or constituted in the
manner agreed upon by the parties and in conformity with the law
governing the arbitration procedure;
(d)That the a ward has become final in the country in which
it has been made, in the sense that it will not be considered as
such if it is open to opposition, appel or pourvoi en cassation (in
the countries where such forms of procedure exist) or if it is
proved that any proceedings for the purpose of contesting the
validity of the award are pending;
(e) That the recognition or enforcement of the award is not
contrary to the public policy or to the principles of the law of the
country in which it is sought to be relied upon.
Article 2.--- Even if the conditions laid down in Article 1
hereof are fulfilled, recognition and enforcement of the award shall
be refused if the Court is satisfied:
(a) That the award has been annulled in the country in which
it was made;
(b) That the party against whom it is sought to use the award
was not given notice of the arbitration proceedings in sufficient
time to enable him to present his case; or that, being under a legal
incapacity, he was not properly represented;
(c)That the award does not deal with the differences
contemplated by or falling within the terms of the submission to
arbitration or that it contains decisions on matters beyond the
scope of the submission to arbitration.
If the award has not covered all the questions submitted to
the arbitral tribunal, the competent authority of the country where
recognition or enforcement of the award is sought can, if it thinks
fit, postpone such recognition or enforcement or grant it subject to
such guarantee as that authority may decide.
Article 3.--- If the party against whom the award has been
made proves that, under the law governing the arbitration procedure,
there is a ground, other than the grounds referred to in Article 1
(a) and (c), and Article 2 (b) and (c), entitling him to contest the
validity of the award in a Court of Law, the Court may, if it thinks
fit, either refuse recognition or enforcement of the award or
adjourn the consideration thereof, giving such party a reasonable
time within which to have the award annulled by the competent
tribunal.
Article 4.--- The party relying upon an award or claiming its
enforcement must supply, in particular:
(1) The original award or a copy thereof duly authenticated,
according to the requirements of the law of the country in which it
was made;
(2) Documentary or other evidence to prove that the award has
become final, in the sense defined in Article 1 (d), in the country
in which it was made;
(3) When necessary, documentary or other evidence to prove
that the conditions laid down in Article 1, paragraph 1 and
paragraph 2 (a) and (c), have been fulfilled.
A translation of the award and of the other documents
mentioned in this Article into the official language of the country
where the award is sought to be relied upon may be demanded.Such
translations must be certified correct by a diplomatic or consular
agent of the country to which the party who seeks to rely upon the
award belongs or by a sworn translator of the country where the
award is sought to be relied upon.
Article 5.--- The provisions of the above Articles shall not
deprive any interested party of the right of availing himself of an
arbitral award in the manner and to the extent allowed by the law or
the treaties of the country where such award is sought to be relied
upon.
Article 6.--- The present Convention applies only to arbitral
awards made after the coming into force of the Protocol on
Arbitration Clauses opened at Geneva on September 24th, 1923.
Article 7.--- The present Convention, which will remain open
to the signature of all the signatories of the Protocol of 1923 on
Arbitration Clauses, shall be ratified.
It may be ratified only on behalf of those Members of the
League of Nations and non-Member States on whose behalf the Protocol
of 1923 shall have been ratified.
Ratifications shall be deposited as soon as possible with the
Secretary-General of the League of Nations, who will notify such
deposit to all the signatories.
Article 8.--- The present Convention shall come into force
three months after it shall have been ratified on behalf of two High
Contracting Parties.Thereafter, it shall take effect, in the case of
each High Contracting Party, three months after the deposit of the
ratification on its behalf with the Secretary-General of the League
of Nations.
Article 9.--- The present Convention may be denounced on
behalf of any Member of the League or non-Member State.Denunciation
shall be notified in writing to the Secretary-General of the League
of Nations, who will immediately send a copy thereof, certified to
be in conformity with the notifications, to all the other
contracting Parties, at the same time informing them of the date on
which he received it.
The denunciation shall come into force only in respect of the
High Contracting Party which shall have notified it and one year
after such notification shall have reached the Secretary-General of
the League of Nations.
The denunciation of the Protocol on Arbitration Clauses shall
entail, ipso facto, the denunciation of the present Convention.
Article 10.--- The present Convention does not apply to the
Colonies, Protectorates or territories under suzerainty or mandate
of any High Contracting Party unless they are specially
mentioned.
The application of this Convention to one or more of such
Colonies, Protectorates or territories to which the Protocol on
Arbitration Clauses opened at Geneva on September 24th, 1923,
applies, can be effected at any time by means of a declaration
addressed to the Secretary-General of the League of Nations by one
of the High Contracting Parties.
Such declaration shall take effect three months after the
deposit thereof.
The High Contracting Parties can at any time denounce the
Convention for all or any of the Colonies, Protectorates or
territories referred to above.Article 9 hereof applies to such
denunciation.
Article 11.--- A certified copy of the present Convention
shall be transmitted by the Secretary-General of the League of
Nations to every Member of the League of Nations and to every
non-Member State which signs the same.