Execution of foreign arbitration awards


Good day

If a arbitration clause is there between the " party A " &  " party B " , " A " is abroad & " B " is in India . Lately there is a conflict between them for the payments . Initially all went ok but suddenly " B " received a " legal notice / a demand letter " , which " B" refuted on the grounds of the amount asked . " A " didn't reply for almost 2 years and one day " B " received the summons from the high court for the execution of the " ARBITRATION AWARD " passed abroad.Now I need to know ----

- How any arbitration award can be passed whithout giving notices to the other party or defendent

- " B " have not received any communication after the single legal notice

- " B " was not informed about any kind of arbitration proceedings abroad 

- On what grounds the award can be setaside in the HC

Kindly advise

Regards

Manoj Kumar 

 
Reply   
 
BE/ LLM in Corporate Laws

The information is sketchy and incomplete.

First,please go through the Arbitration Clause of the contract carefully. What does it say-Sole Arbitrator or Two Arbitrators and an Umpire or what. If it is Sole Arbitrator, which party has the right to appoint the Arbitrator and where the Arbitration proceedings will take place etc.

Without this information, nothing can be commented.

 
Reply   
 



IN THE CONTRACT THE ARBITRATION CLS. IS NOT THERE BUT AS THIS IS THE SHIPPING / CHARTERING CONTRACT SO THE PARTIES HAS TO SIGN THE TWO CONTRACTS , FIRST - IT IS CALLED FIXTURE NOTE , FIXTURE NOTE IS THE CONTRACT OR THE COMPOSITION OF THE CLAUSES AGREED BY BOTH THE PARTIES . AND THE SECOND DOCUMENT IS THE PRINTED FORM, FROM " BIMCO " ( BALTIC INTERNATIONAL MARITIME CONFERENCE , AS REVISED 1922, 1976 , 1994 ) , THIS I THE FORMAT OF THE ORIGINAL CLAUSES OF THE SHIPPING ( KINDLY REFER bimco.org FOR CHARTER PARTY AGREEMENTS ) CONTRACT OR CHARTERPARTY , HERE AFTER THE FIXTURE NOTE , BOTH THE PARTIES HAVE THE LIBERTY TO KEEP OR TO OMIT ANY CLAUSE BUT STRIKING IT OUT.

NOW HERE IN THIS CASE THE FIRST DOCUMENT THE FIXTURE NOTE IS SIGNED BUT THE SECOND DOCUMENT IS NOT BEEN SIGNED. THE ARBITRATION CLAUSE IS " NOT INCLUDED " IN THE FIXTURE NOTE .....AND IN THE CHARTERPARTY DOCUMENT ( CLAUSE NO.19 ) , CLEARLY SHOWS THAT IF THE ARBITRATION CLAUSE IS NOT WRITTEN IN THE FIXTURE NOTE THEN " CLAUSE NUMBER 19 " OF BIMCO CHARTERPARTY 1994 IS TO BE FOLLOWED ......." BUT HERE THE CHARTERPARTY IS NOT SIGNED " SO THIS MEANS THE ARBITRATION CLAUSE DOES NOT EXIST !!!!!!

BUT AS THE " A " DID THE ARBITRATION AGAINST THE " B " WITH OUT GIVING ANY INFO THEN HOW THE ARBITRATION CAN EXIST , FIRST AND SECONDLY THE ARBITRATION CLAUSE IS NOT IN THE FIXTURE NOT AND THE C/P ALSO NOT SIGNED 

THX AGAIN , FOR ANY FURTHER POINTS PLS MAIL , WILL GIVE THE DTLS

KINDLY ADVISE

MANOJ

 
Reply   
 
BE/ LLM in Corporate Laws

Dear Mr.Manoj,

What I understand from your posts is :-

1. You have received a Summon from the High Court that you have failed to honour an Arbitration Award.

2. There was no Arbitration Clause in the Contract.

3. You were not informed informed that the other Party has initiated an Arbitration proceedings against you in a foreign country.

4. The Arbitrator has published his award and the party has now appealed before the High Court for honouring the Award.

In this case, as the matter is already before the High Court, you have to challenge the Award in the Court that it is arbitrary, uncalled for and not included in the Contract. You can get the details of the Arbitrator and send him a Notice through your Lawyer that he has not subscribed to the Arbitration Law and his award is arbitrary and unjust. In my opinion, you have a strong case and most likely the High Court will set aside the Award.

I cannot help you beyond this point. You have to hire an Advocate in your location for further action. For any guidance,you can mail me to sanjaykumar0203@gmail.com

Good Luck.


Total likes : 1 times

 
Reply   
 
ADVOCATE AND CORPORAE ADVISOR

dear learned colleague

 

What is the contract which contains arbitration clause. Without notice if arbitration proceedings held and award given, it is ex-parte decision which is not binding on the other party.

As it looks principles of natural justice have been flouted (leave alone arbitration process/procedure) the award is not valid.

Please mail me the contract and arbitration clause for my examination and further advice.

rgds

dr vedula gopinath, Hyderabad vgopinath2@yahoo.com  m09848227926

 



Attached File : 565358944 academicdetails6912.docx, 565358944 acadetails221212.doc downloaded 102 times
 
Reply   
 
Advocate

The facts as enumerated on the face of it apper to be in violation of the principles of natural justice. However, the party A may have even derived support in from the arbitral clause itself in carrying out such a proceeding, as many a times, the arbitral clauses lean towards one of the parties thereto in so far regards the appointment, venue and jurisidction. Whatever may be the case, the non-service of summons during the proceedings is bad in law and such an award ought to be set aside by following the due process of law.

If possible please show me the contract conaining the arbitral clause and and the arbitral award.

 

regards

D. Bhattacharya

New Delhi

Mon: +91- 9899031130

Email: contact@dblaw.org

 
Reply   
 

The ground that there was no arbitration clause in the contract is not valid. As per 1996 act or uncitral,the arb agreement need to be in writing, not necessarily signed. As the agreement is in writing, it is valid and operative. Other grounds to protest the award are genuine and need to be established in the court of law.

 
Reply   
 

The ground that there was no arbitration clause in the contract is not valid. As per 1996 act or uncitral,the arb agreement need to be in writing, not necessarily signed. As the agreement is in writing, it is valid and operative. Other grounds to protest the award are genuine and need to be established in the court of law.

 
Reply   
 
ADVOCATE AND CORPORAE ADVISOR

dear learned colelague Mr.Manoj Kr

 

I have not so far received the agreement and arbitration clause and in the absence of which I am unable to comment further.

There appears to be some lapse/non-compliance on the part of the Indian party. 

Thus to meet the ends of justice, the party overseas would have taken (resumably) taken action as per the agreement and as per the arbitraqtion clause and thus Indian party is now required to comply with the adjudication orders.

 

Before it is too late, please do furnish me the requested documetns to advise you further

 

dr vedula gopinaqth arbitrator    vgnath@gmail.com

 

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

Search Forum:








×

  LAWyersclubindia Menu