This article explores the enforcement of foreign arbitral awards in India from non-reciprocating countries under Section 44(b) of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). It outlines two alternative routes available instead of getting a judgment in terms of the award and enforcing it as a foreign judgment: enforcement through a fresh suit under common law principles, and reliance on applicable bilateral treaty frameworks where available.
The piece analyses the statutory scheme under the Arbitration Act, alongside key judicial precedents shaping the approach to enforcement from non-reciprocating countries and the necessary conditions to be met, including the standards for finality of foreign awards. Further, it analyses the possibility of the direct invocation of a bilateral treaty in the absence of any legislation. It also examines practical challenges such as jurisdiction of the courts, and the uncertainties around the mechanism of direct treaty application.
Drawing on recent case law, the article provides strategic guidance on structuring enforcement actions, and managing cross-border risks in complex international disputes involving non-reciprocating jurisdictions.