The court emphasized the narrow scope of grounds available under Section 48 of the Arbitration Act for resisting enforcement of a foreign arbitral award and the need for a high threshold to successfully avoid enforcement.

ORDER :

The present petition is filed for enforcement of foreign arbitral award dated 24.02.2021, passed by a learned sole arbitrator at Singapore as per the Rules of Arbitration of the International Chamber of Commerce (ICC). By the said award, the petitioner is entitled to recover specific amount from the respondent along with interest. It is an admitted position that a challenge raised before the Singapore High Court on behalf of the respondent against the said arbitral award was rejected on merits.

2. According to the petitioner, the grounds for resisting enforcement of such foreign award within the narrow scope available under Section 48 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Arbitration Act’) have not been made out by the respondent and that therefore, the award deserves to be enforced and executed at the earliest. The endeavour on the part of the respondent before this Court is to claim that such enforcement of the foreign award is contrary to the public policy of India, in the context of which certain specific grounds have been raised. This Court is called upon to examine the said grounds while considering the present petition for enforcement of the award.

3. Brief facts leading to filing of the present petition are that, on 09.11.2017, the petitioner and the respondent entered into a sale and purchase agreement, whereby the petitioner agreed to sell and the respondent agreed to buy optical fiber preforms on a monthly basis, for use in the manufacturing plant of the respondent in India. There were three types of preforms, which were the subject matter of the said agreement and it is undisputed that the controversy between the parties pertains only to Standard Low Water Peak Fiber Preform (S-LWPFP). The parties agreed under the said agreement that the applicable law would be the law of Singapore and disputes, if any, arising between the parties would be settled by arbitration in Singapore, in accordance with the Rules of Arbitration of the ICC. The term of the agreement was from August 2017 to July 2022 and the dispute between the parties pertains only to the period between February 2019 to July 2022, restricted to price payable for the agreed volume of S-LWPFP preforms.

4. The terms of the agreement specified that if the parties failed to agree on the price of the said preforms for the periods of supply, the respondent would have the option to purchase the agreed volume at 110% of the price in effect during the immediately preceding six months. If the respondent failed to exercise such option, then the petitioner had the option to sell the said volume of preforms at 90% of the price in effect during the immediately preceding six months. In this regard, clause 4 of the said agreement assumes significance. Disputes arose between the parties for the period between February 2019 and July 2019, for the reason that despite multiple rounds of good faith negotiations, the respondent did not exercise its option under the agreement and ultimately, the petitioner exercised its option being ready to sell the agreed volume of preforms at 90% of the price in effect during the immediately preceding six months. The respondent disputed the manner in which the petitioner sought to exercise its option, due to which there was failure to agree on the price and the petitioner could not make any shipment to the respondent from February 2019.

5. It is in this backdrop that in June 2019, the petitioner filed a request for arbitration with the Secretariat of the ICC Court. The petitioner claimed that the respondent had committed breach of its obligations under the said agreement in failing to accept delivery and in making payment for the S-LWPFP preforms for the aforementioned period. The petitioner claimed the price of the preforms or damages for the said period.

6. On 02.08.2019, Mr. Chan Leng Sun, SC, was jointly nominated by the parties to be the sole arbitrator and the appointment was later confirmed by th