Enforcement of foreign arbitration awards is governed by specific provisions under the Arbitration and Conciliation Act, with the resisting party bearing the burden of proof to establish grounds for non-enforcement, such as lack of notice.

Headnote:(A) Constitution of India - Article 227 - Arbitration and Conciliation Act - Section 48 - Enforcement of foreign arbitration award - Petition challenging the maintainability of enforcement proceedings against the ruling of the lower Court - Court retained jurisdiction under Section 48, considering prospective amendment implications post-2016 - The concept of public policy applied differently in foreign awards - The absence of notice under Section 48(1)(b) must be proven by the resisting party, with the onus shifting based on circumstances. (Paras 1, 14, 26, 30, 41)

(B) Jurisdiction - High Court defined in Section 2(e), relating to arbitration - Proper jurisdiction affirmed post-amendment. (Paras 4, 8)

(C) Fraud - Allegations of fraud tied to proceedings and evidence necessary to substantiate claims of injustice and absence of notice, which were not sufficiently proven. (Paras 2, 14, 39)

(D) Good faith principle - The principle guides enforcement and claims of fraud, requiring parties to raise disputes before the agreed arbitration body. (Paras 30, 41)

Facts of the case:
Petitioners filed under Article 227 against a District Court decision to uphold a foreign arbitration award granted by a London-based Trade Association, with claims of fraudulent inducement and absence of notice during arbitration proceedings.

Findings of Court:
The Court found no merit in claims regarding jurisdiction or proof of non-receipt of notice, affirming the lower Court's findings as proper and enforceable.

Issues: The primary issues considered were the jurisdiction of the Court to enforce foreign awards, the application of good faith, and allegations of fraud affecting the arbitration process.

Ratio Decidendi: The Court reasoned that the prospective amendment to the Arbitration Act does not affect ongoing proceedings and that the resisting party bears the burden of proof regarding notice while applying the good faith principle in contract performance.

Result: Petition dismissed.

Table of Content
1. jurisdiction based on foreign arbitration award (Para 1)
2. grounds against maintainability and allegations of fraud (Para 2)
3. court's competency to enforce awards under amended act (Para 3 , 4 , 5)
4. statutory interpretation of jurisdiction post-amendment (Para 6 , 7 , 8)
5. temporal application of the amendment regarding court jurisdiction (Para 9 , 10)
6. fraud as a basis for resisting enforcement of foreign awards (Para 14 , 15)
7. comparison of s.34 and s.48 regarding enforcement grounds (Para 16 , 17)
8. public policy considerations in enforcing foreign awards (Para 18 , 19)
9. speedy resolution as a key objective of arbitration laws (Para 20 , 21 , 22)
10. restrictions on courts' involvement in arbitration matters (Para 23 , 24)
11. circumstances under which enforcement can be resisted (Para 25 , 26)
12. proof of non-receipt of notice required under s.48 (Para 27)
13. good faith principle in international arbitration (Para 28 , 29)
14. role of notice in arbitral processes (Para 30 , 31)
15. burden and onus of proof in enforcement proceedings (Para 32 , 33)
16. distinction between burden and onus of proof in legal contexts (Para 34 , 35 , 36)
17. implications of electronic notice on enforcement proceedings (Para 37 , 38 , 39)
18. conclusion on enforceability and principles of good faith (Para 40 , 41)

1. This is a petition filed under Art.227 of the Constitution of India. A foreign arbitration award is the subject matter. A foreign award was passed by a Trade Association Combined Edible Nut Trade Association (CENTA) in London. Now, that award was sought to be enforced under S.48 of the Arbitration and Conciliation Act (hereinafter referred to as the 'Act'). The application was numbered as E.P.97/2013 on the file of the II Addl. District Court, Kollam. The Court below by its order dated 15/03/2018 found that the said award is enforceable. The said order was passed by the Court, after finding that the Court is having jurisdiction by its order dated 13/03/2018. Both these orders were challenged before this Court in O.P. (C) No. 1005/2018. This Court remanded back the case by setting aside the order dated 13/03/2018 in E.P. No. 97/2013 and directed to pass fresh orders on the question of jurisdiction, after hearing both sides. As regards order dated 15/03/2018 in E.P. No. 97/2013 this Court left open the right of the petitioners to challenge the said order afresh in the event the Court below finds that the said Court has jurisdiction. After remand, the matter was again considered by the lower Court and by its order dated 17/07/2018, the Court found that enforcement petition is maintainable before the Court. The said order is under challenge in this original petition along with the grounds left open to be considered while disposing O.P.(C) No. 1005/2018 of this Court.

2. When the matter came up for hearing, the learned counsel for the petitioners raised the following grounds:

Firstly the maintainability of the petition before the Court below.

Secondly the grounds under S.48(1)(b) and (2) of the Act.

A specific ground is also raised as that the making of the award was induced and affected by fraud. Award is a product of fraud. It is also the contention that there was novation of the agreement and there is no arbitration agreement.

3. Thus, the question to be considered first is regarding the competency or the jurisdiction of the Court.

4. As per the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) an amendment came into force on 23/10/2015. As per the amendment, in 'Court' defined in S.2(e), is amended as follows:

"2(e) "Court" means -

(I) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in existence of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject - matter of the arbitration if the same had been the subject - matter of a suit, but

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2018 Supreme(Online)(Ker) 61547

IN THE HIGH COURT OF KERALAK. P. Jyothindranath, JPeniel Cashew Company (M/s.) and Another v. M/s. Ahcom SarlO.P.(C) No. 1005/2018 | E.P. No. 97/2013

Enforcement of foreign arbitration awards is governed by specific provisions under the Arbitration and Conciliation Act, with the resisting party bearing the burden of proof to establish grounds for non-enforcement, such as lack of notice.

Cases Referred (6)

IN THE HIGH COURT OF KERALA
K. P. Jyothindranath, J
Peniel Cashew Company (M/s.) and Another v. M/s. Ahcom Sarl
O.P.(C) No. 1005/2018 | E.P. No. 97/2013