International Labor law Moving beyond Domestic Boundaries

7/30/2019 International Labor law Moving beyond Domestic Boundaries

1/16

International Labor law: Moving beyond Domestic Boundaries


2/16

Page | 1

Table of Content

1. Introduction..0 2

2. The effect of ILO on labor legislation in India03

3. Instruments of International Labour Law04

4. Arbitration as a means for settlement of dispute at international level05

5. United Nations Commission on International Trade Law...07

6. Foreign arbitration08

7. Enforcement of award to which the conventions do not apply09

a. Exceptions..10 8. Enforceability of civil suits decided in Foreign country..12

9. Conclusion....13

10.Bibliography.14


3/16

Page | 2

International Labor Law: Moving Beyond

National Territories

Without labor nothing prospers.

~Sophocles

Introduction:

Since humans appeared on earth, we have had to work to secure what we needed to survive or to

improve our standard of living. Needs are not satisfied without human effort that results in

successful production. Our earliest ancestors had to gather, hunt, and farm successfully or die.

The term labour in its most general use, refers to productive human work. Through much of

history, it was not treated as a commodity that was paid for. Our nomadic ancestors laboured

together in the gathering, the hunt, and other tasks and collectively shared the results according

to the customs of the time. Farmers grew their crops or raised their livestock and traded them for

other goods or services using a barter system of exchange. A slaves labour was forced, whereas

that of many a peasant was exchanged for protection and the use of land. To the present day,

much productive work is done without monetary payment.

As time passed and societies grew larger and more complex, labour became more specialized.

Each person became an expert at doing just a few things or even just one thing. This

specialization meant that workers became more productive. It often proved a mixed blessing.

Workers could improve their standard of living if they were able to gain a share of the additional

wealth they had helped produce.

In this research paper we will deal with international labor organization which through its

constitution conventions and treaties has influence not only the domestic labour legislation of its

member nations but also of countries which are not its member. This research paper will look

into international labour laws, its beginning, and its impact on Indian legislations and the core

conventions.

After that this research paper will look into international system of industrial dispute resolution

which is mainly done through arbitration, we will look into the working of foreign awards, the

procedure of implementation in India. The question of jurisdiction, whether the Indian courts

have power to enforce or set aside the foreign award, and its impact if the award can be set aside

by Indian courts.


4/16

Page | 3

The effect of ILO on Labor legislation in India

With the growth and expansion of factories and industries in the subcontinent beginning in the

mid-nineteenth century, new avenues for employment were created, resulting in a gradual

migration of the labor force from rural areas to mills and factories located primarily in urban

areas. At that time, in the absence of any state control or organization of the workers, theemployers were less concerned about the needs of their employees; the work hours were too

long, wages much below the subsistence level, and the workers employment conditions were

unsatisfactory. The situation led to the enactment of a number of legislations beginning from the

year 1881. These include, inter alia, the Factories Act (1881), Workmens Compensation Act

(1923), Trade Unions Act (1926), Trade Disputes Act (1929), Payment of Wages Act (1936),

Maternity Benefit Act (1939), and the Employment of Children Act

The Factories Act 1881 is the basis of all labor and industrial laws of the country. It contained

provisions even for hours of work of women and workers including that of minimum age for

employment of children. After the International Labor Organization (ILO) was formed in 1919,this Act was amended and thereafter repealed, resulting in the promulgation of the Factories Act

1934. It makes provision for safety, health and hygiene of the workers and special provision for

women and juvenile workers. It also prohibits child labor. It limits work of a child in factories,

including the seasonal ones.

Under the Mines Act 1923 which applies to workers employed in mines, the hours of work for

persons employed on surface are limited to ten per day and fifty four per week. The periods of

work including rest interval shall not spread over more than 12 hours in any day. For workers

employed underground, the daily limit is nine hours per day. The Act does not contain provisions

as to overtime work. No worker is to work in a mine for more than six days a week. The Actdoes not provide for wages for the weekly rest day.

The government of India set up an enquiry committee in 1926 to ascertain the loophole for

irregularity of payment of wages to industrial workers. The Royal Commission on Labor

appointed in 1929 considered the reports and suggestions of the aforesaid enquiry committee and

recommended for enactment for prevention of maladies relating to payment of wages resulting in

the promulgation of the Payment of Wages Act in 1936. It aimed, firstly, at disbursement of

actual distributable wages to workers within the prescribed period and, secondly, to ensure that

the employees get their full wages without any deduction. The Act was passed to regulate the

payment of wages to certain classes of persons employed in industry. The object of the Actobviously was to provide a cheap and speedy remedy for employees to whom the Act applied

inter alia, to recover wages due to them, and for that purpose, a special tribunal was subsequently

created, but due to some inherent defects in the statute the recovery of decree able wages rema

ined difficult.


5/16

Page | 4

The Weekly Holidays Act of 1942 prescribes one paid holiday a week for persons employed in

any shop, restaurant or theatre (excepting those employed in a confidential capacity or in a

position of management). The government is empowered to grant additional half-day holiday

with pay in a week

The Industrial Disputes Act, 1947 came into being on the 1st day of April 1947. The Actprovided for establishment of industrial tribunals by the appropriate government in British India.

It established a full-fledged industrial tribunal for adjudication of industrial disputes for the first

time

The Industrial Employment (Standing Orders) Act, 1946 came into operation for the first time

requiring employers in industrial establishments employing 100 or more workmen to define the

terms of employment of workmen in the form of standing orders which should be in general

conformity with the model standing orders incorporated in the Act. The Merchant Shipping Act,

1923 provided for an agreement between a seaman and the master of the ship regarding terms of

service.

Instruments of International Labour Law

Core Conventions

While ILO Conventions are not ranked in terms of their order of importance, there is an

underlying hierarchy, which can be discerned. In the first category are Conventions dealing with

freedom of association and collective bargaining (Conventions Nos. 87 and 89), forced labour

(Conventions Nos. 29 and 105), non-discrimination in employment (Conventions Nos. 100 and111) and child labour (Convention 138).

These core Conventions were identified and given prominence in the Conclusion of the WorldSummit for Social Development in 1995, Copenhagen Declaration on Social Development. In

the second category are technical standards, which establish norms to improve working

conditions.

Freedom of Association and Protection of the Right to Organize Convention, 1948Establishes the right of all workers and employers to form and join organizations of their own

choosing without prior authorization, and lays down a series of guarantees for the free

functioning of organizations without interference by the public authorities. In December 1997,

121 countries had ratified this convention.

Right to Organize and Collective Bargaining Convention, 1949Provides for protection against anti-union discrimination, for protection of workers' and

employers' organizations against acts of interference by each other, and for measures to promote

collective bargaining. In December 1997, 137 countries had ratified this convention.


6/16

Page | 5

Forced Labour Convention, 1930Requires the suppression of forced or compulsory labour in all its forms. Certain exceptions arepermitted, such as military service, convict labour properly supervised, emergencies such as

wars, fires, earthquakes, etc. In December 1997, 145 countries had ratified this convention.

Arbitration as a means for settlement of dispute at international level

Arbitration means a reference to the decision of one or more persons, either with or without an

umpire of some matter or matters between the parties as held in

COLLINS vs. COLLINS1

The essence of arbitration is that the arbitrator decides the case and his award is in nature of a

judgment which is later on incorporated into a decree of court as held in the case AKBARI

AHMED vs. RAHAMAT2

The former judge of the Supreme Court, V.R. Krishna Iyer had pictured public anguish overdelay in dispute resolution. He had suggested that people could opt for non-litigative

mechanisms of dispute resolution, Mr Venkatapathy said.

One does not stand to benefit by ruining others. There has to be comradeship and tolerance. It istime we stopped clinging to provisions of conventional law, when there is the option of

arbitration

Provision in Industrial Dispute Act, 1947

10a. Voluntary reference of disputes to arbitration -

(1)Where any industrial dispute exists or is apprehended and the employer and the workmen

agree to refer the dispute to arbitration, they may, at any time before the dispute has been

referred under section 10 to a Labour Court, or Tribunal or National Tribunal, by a

written agreement, refer the dispute to arbitration and the reference shall be to such

person or persons (including the presiding officer of a Labour Court or Tribunal or

National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration

agreement.3

Section 10 A says that at any time before a reference of dispute under section10, the

disputants may by a written agreement refer the dispute to arbitration. 4 Voluntary

arbitration as a method of resolution of industrial conflict came into prominence with the

128 LJ Ch 186: (1858) 26 Beav 306.

2AIR 1918 Cal. 865.

3Insustrial dispute Act, 1947

4A.K.L.K Sangh v. Liberty Footwear Company. AIR 1990 SC 247.


7/16

Page | 6

advocacy of the Gandhi Ji of its application to settlements of dispute in the textile

industry of Ahmadabad.

Requirement to be fulfilled for invoking section 10 A:

There should be an existing or apprehended industrial dispute.

The reference of arbitration should be by a written agreement.

The reference should be made before the dispute has been referred under section

10.

The names of the persons chosen to act as arbitrator or arbitrators may be

specified in the arbitration agreement. Such persons may be presiding officers of

the labor court, industrial tribunal, or national tribunal.

In Indian Iron and Steel Co. Ltd. v. Their Workmen5

The International Labour Organisation, in its recommendation, has recommended that a

worker aggrieved by the termination of his employment should be entitled to appeal

against the termination among, others to a neutral body such as an arbitrator, a court, anarbitration committee or a similar body.

Workmen of Dharam Pal Prem Chand (Saugandhi) v. Dharam Pal Prem Chand

(Saugandhi). In view of various decisions of the Supreme Court, cases of individual

dismissals and discharges could be taken up for conciliation or arbitration or referred to

adjudication under the Industrial Disputesmd Act, if they were sponsored by a Union or a

number of workmen. And arbitration methods of dispute resolution facilitate parties to

deal with the underlying issues in dispute in a more cost-effective manner and with

increased efficacy. In addition, these processes have the advantage of providing parties

with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the

outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in

each individual case.

5(1958-I-LLJ- 260)


8/16

Page | 7

United Nations Commission on International Trade Law (UNCITRAL).

The United Nations commission on international trade law [UNCITRAL] adopted in 1985 the

model law on International Commercial Arbitration. The General Assembly of the United

Nations has recommended that all countries give due consideration to the said model law ,in

view of the desirability of uniformity of law of arbitral procedures and the specific needs ofinternational commercial arbitration practice.

An important feature of the said UNCITRAL model law and rules is that they have harmonized

concepts of arbitration and conciliation of different legal systems of the world and thus contained

provisions universal application.

The Indian implementation of the UNCITRAL Model Law:

In India, the New Act which repealed Arbitration Act of 1940 (hereinafter: the Old Act) wasbased on the Model Law and was enacted to correct and standardize arbitration law and bring it

in line with international principles.31 This was taken note of by the Indian Supreme Court,

which in the Sundaram Finance Case6conceived the Model Law as an interpretative guide to the

New Act. Like the UNCITRAL Model Law, the New Act is divided into two Parts. The first Part

deals with domestic arbitrations and the second Part relates to foreign arbitrations. Each Part is

divided into sections which correspond to the similarly numbered article in the Model Law.

Therefore, provisions dealing with the setting aside of an arbitration award that are contained in

article 34 of the Model Law can be found in section 34 of the New Act33, which falls in Part

one. Just as under the Model law, there is no corresponding provision in Part two. These two

documents are thus closely related. The adoption of the New Act resulted in a significant

departure from the extant law under the Old Act.7The New Act however departs from the Model

Law in certain respects. One of the key differences between the Model Law and the Act is that

certain provisions of Part one of the Model Law are applicable to Part two, whereas the

application of these provisions to Part two has not been incorporated in the New Act. For

example, unlike in the Model Law, there is no provision for providing interim relief in

International Commercial Arbitrations under the New Act. Under the Model Law, article nine

(among others) relating to interim measures is applicable to Part two,8 thus providing for court

support before a final award has been rendered in both domestic and foreign arbitrations. As a

result, the danger has arisen that a claimant in an International Commercial Arbitration could beleft remediless, since the court of the place where enforcement of the award is sought would

have no power to grant interim relief.

6Sundaram Finance LtdvNEPC India Ltd1999 2 SCC 483, 497.

7The Old Act provided for amongst other things: Court controlled arbitrations, Supersession of Arbitration by a Court etc. Itthus severely limited arbitral autonomy. See also Sundaram Finance LtdvNEPC India Ltd1999 2 SCC 483, 497.8UNCITRAL Model Law, Article 1 (2).


9/16

Page | 8

Foreign arbitration

Foreign arbitration is an award or arbitration conducted in a place outside India

The resultant award is an award, if sought to be enforced in India, constitutes a foreign award,

Section 2(7) of the 1996 act states that an arbitral award made under \Part [1] of the act shall be

considered as a domestic award. Section 2(2) mandates that Part [1] shall apply where place of

arbitration is in India.

It follows a logical thing that where the place of arbitration is not in India, Part [1] shall not

apply to such arbitration. Thus an award resulting from such arbitration shall not be considered a

domestic award.

In the case of dispute arousal, multinational companies go for Arbitration proceeding instead toknocking up courts door for redressal, as it is relatively cheaper expeditious method of dispute

resolution.

Provision of Arbitration Act, 1996 enforcement of foreign awards:

Section 49 of Arbitration and conciliation Act, 1996 lays down that where the court is satisfied

that the foreign award is enforceable, the award shall be deemed to be a decree of that court. This

deeming provision has been incorporated in this section with a view to enduring smooth and

speedy execution of recognize and unobjectionable foreign awards.

Procedure of enforcement under conventions

The procedure of enforcement of foreign awards under the conventions are pretty much

the same .Any person interested in enforcing a foreign award may apply in a writing to

any court having jurisdiction over the subject matter of the award. In addition to filing of

the award and agreement on which it is based as required by the conventions, the act

requires that evidence as to the award being a foreign award has to be filed.

The competent court in which the award is to be filed is a court which will have

jurisdiction over the subject matter of the award. The application will be numbered and

registered in the court as a suit between the applicant as plaintiff and the other parties aredefendants. T he court will direct notice to be given to the parties, requiring them to show

cause as to why the award should not be filed. The court on being satisfied that the

foreign award being enforceable under the act will pronounce judgments according to the

award. Upon the judgment so pronounced, a decree will follow as in case of domestic

awards. No appeal shall lie from such a decree except in so far as the decree is in excess

of or not in accordance with h the award.


10/16

Page | 9

The various high courts, including the Bombay and Calcutta, have made rules regarding the

procedure and forms to be used for application for the enforcement of foreign awards.

Challenge to foreign arbitral award

The doctrine that the country of the seat of arbitration alone has jurisdiction to set aside an

award, has been well accepted internationally. Only the court of the seat of the arbitration, which

is said to have primary jurisdiction over the arbitration, would have jurisdiction to set aside anaward. In contrast, any other court, which only has secondary jurisdiction, could merely refuse

enforcement of the award.9

In the rare case that the parties choose a curial law1110

other than that of the seat of the

arbitration, the competent court would be that of the curial law of the arbitration.11

The HighCourt of England, Queens Bench Division, has explained in C. v. D

12that, the significance of the

seat of arbitration has been considered in a number of recent authorities. The effect of them is

that the agreement as to the seat of an arbitration is akin to agreement to an exclusive jurisdictionclause. Not only is there agreement to the arbitration itself but also to the courts of the seat

having supervisory jurisdiction over that arbitration. By agreeing to the seat, the parties agree

that any challenge to an interim or final award is to be made only in the courts of the place

designated as the seat of the arbitration.

Section 48 of the Arbitration and Conciliation Act, 1996 provides conditions for the enforcement

of foreign award, if the award fulfills any of the conditions provided under section 48 then thecourt may refuse enforcement of foreign awards.

ENFORCEMENT OF AWARD TO WHICH THE CONVENTINS DONOT APPLYThe awards which are made in the countries that are not a party to either of the conventions

cannot be enforced with the same facility as in the case of the foreign awards to which the

conventions apply. Such foreign awards are however enforceable in India on the same ground asthey are applicable in United Kingdom. That is to say that they can be enforced by an action

before a court of law as held in BADAT & CO. BOMBAY vs. EAST INDIA TRADING CO.

which said that such an award will be enforceable in India under the common law on the groundsof justice, equity and good conscience? The principles stated are as follows:-

That there was a contract between the parties where under disputes between them werereferred to arbitration to an arbitral tribunal in a foreign country.

That award is in accordance with the terms of the agreement.

9Russell on Arbitration, 23rd ed., by Sutton, Gill and Gearing (London 2007), at para. 8-051 see also V.S.

Deshpande, Jurisdiction Over Foreign and Domestic Awards in the New York Convention, (1991) 7

Arbitration International 123, 126.10

Curial law refers to the law governing the procedure of arbitration.11

An express choice of curial law different from the law of the country in which the arbitration is to be held is ...

almost unknown. M. J. Mustill & Stewart C. Boyd, (2nd ed.) The Law and Practice of Commercial Arbitration in

England(London 2002), p. 6412

[2007] EWHC (QBD) 1541.


11/16

Page | 10

That the award is not invalid according to the law governing arbitration proceedingsobtaining in the country where award was made.

That it was a subsisting award at the time of filing of the suit.A foreign award will not be enforced by the courts in India if its enforcement would be contrary

to public policy or the laws in India.

A foreign award will be deemed to be against the laws of India if it violates, for instance,provisions relating to exchange, control, import-export control or similar mandatory provisions.

Exceptions

The balance between arbitral autonomy and court intervention in India had, prior to the

enactment of the Arbitration Act 1996, been maintained in accordance with

internationally accepted norms. This position has been altered after the judgement of the

Indian Supreme Court in Venture Global v. Satyam Computers, which has permitted the

set aside of a foreign award by Indian courts even when India is not the seat of

arbitration. In January 2008, the Indian Supreme Court permitted the set aside of a New

York Convention13

arbitral award despite India being a third state for purposes of the

arbitration (i.e. not the seat of arbitration).414

The principle that has been established with

the decision in Venture Global Engineering v. Satyam Computer Services Ltd (Venture

Global) is that if a foreign award requires performance in India, but is seen to have

disregarded or breached Indian laws and regulations, an Indian court may not only refuse

enforcement, but can also set aside the award.

The judgment inBhatia International is important, since in this case the Indian Supreme

Court prepared the groundwork for its decision in Venture Global. The Supreme Courtheld in Bhatia that the general provisions of Part one of the New Act are applicable to

Part two.15

This concept was further expanded by the Supreme Court in Venture Global,

where it stated that all provisions of Part one are applicable to Part two of the New Act.

InBhatia, the defendant had sought to escape from an order indicating interim measures

by contending that, due to the of lack of any provision relating to interim relief in the Part

of the Act that dealt with foreign awards (Part two)16

, no court except for that of the seat

of arbitration could grant interim relief. In an attempt to prevent a party from being left

without any recourse to interim relief in a foreign arbitration, the Court took the view that

the provisions of Part one was general provisions governing domestic as well as foreign

arbitrations and would not need to be repeated in every Part of the Act.17

The motivationbehind the said decision was to preserve the power of the Court to grant interim relief in a

13New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1959, 330 UNTS 38.

14Venture Global Engineering v. Satyam Computer Services LtdManupatra/SC/0333/2008 (1) Arbitration Law

Reporter (SC) 137.15

S.K. Dholika, Bhatia International v. Bulk Trading S.A., (2003) 5 SCC (Journal) 22. 16

Section nine dealing with interim relief by a court was contained in Part one17

Bhatia Internationalv. Bulk Trading S.A.,(2002) 4 SCC 105.


12/16

Page | 11

foreign arbitration and thus to overcome the fact that the New Act had not made any

explicit provision for providing interim relief in Part two.

There was strong criticism of theBhatiajudgment from various quarters.18

It was feared

that by extending certain sections of Part one to foreign awards, the judgment had

impliedly permitted an Indian Court to set aside a foreign award, even if the seat of the

arbitration was not India. However, notwithstanding this strong criticism of the courtsreasoning, the judgment was largely viewed as a decision necessary to enable court

support (interim relief) to arbitration proceedings. By and large the Indian legal fraternity

did not subscribe to the view that the judgment inBhatia International enabled a non seat

state to set aside a foreign award.19

This interpretation ofBhatia International was

developed by the Bombay High Court which clarified that as only the general provisions of Partone were applicable to Part two, foreign awards could not be set aside as they were governed by

specific provisions in Part two.20

The Impact of Venture Global Engineering21

Following the judgment in Venture Global Engineering, if the arbitration agreement does not

specifically exclude the application of Part I of the Act, foreign awards are open to challenge by

the losing party under the grounds listed in section 34 of Part I.However, the grounds for opposing enforcement under Part II of the Act mirror those in Part I.

Therefore an exclusion of Part I will be ineffective where Part II applies. Part II of the Act will

always apply to foreign awards when they are enforced in India.

Therefore, although technically the judgment has not made any material changes to the statusquo in relation to enforcing English awards in India, it appears to have had significant practical

effects: the decision is likely to result in an increase in challenges to foreign arbitral awards in

India; and it has set alarm bells ringing over the extent to which India is willing to comply withits New York Convention obligations. Since the judgment in Venture Global Engineering re-

affirms the Supreme Courts views on this issue in previous cases, it seems unlikely that the

decision will be overturned. However, there are several pending Supreme Court cases involvingthe review of foreign awards, and it is possible that these cases may be referred to a higher bench

for consideration.

18N. Gracias and S. Kotak, The Saw Pipes Judgment, (2005) 4 Government Law College Law Review 106, 131; D.

Krishnan19

Force Shipping v.Ashapura Minechem 2003 (3) BOM. L.R 948, Bombay Gas Company Limitedv. Mark Victor

Mascarenhas20

Force Shipping v.Ashapura Minechem21

Venture Global Engineering v. Satyam Computer Services LtdManupatra/SC/0333/2008 (1) Arbitration Law

Reporter (SC) 137.


13/16

Page | 12

Enforceability of foreign civil suits

In N.P.A.K. Muthiah Chettiar (Died) And Ors. vs K.S. Rm. Firm Shwebo, Burma And Ors.22

JusticeGovinda Menon expressed and illuminated doctrine of comity:

By this rule of the comity, the same force and effect will be given to the judgments of a foreign

country, when sued on in the Courts of the United States, as that country gives to judgments of

our Courts when sued on there, the basis of such comity being reciprocity. That they should be

given any greater effect is not required, but the domestic Court may do so if it likes.

"No sovereign is bound in the absence of a special contract, to give effect within its dominions

to a judgment rendered by the tribunals of another country; it is at liberty to give or refuse

effect to it, as may be found just and equitable, but the general comity, utility and convenience

of nations have established a usage among civilized states by which the final judgments of

foreign Courts or competent jurisdiction are reciprocally carried into effect under certain

regulations and, restrictions which differ in different countries.

In all these cases, courts applied foreign law out of courteous regard to foreign sovereigns.

Since the turn of the twentieth century, comity has come to inform a broader class of cases in

which courts have applied foreign law or refrained from the exercise of domestic prescriptive,

adjudicatory, or enforcement jurisdiction. In this regard, comity functions both as a conflicts

rule and as a justification for deferring to the foreign law. Since the turn of the twentieth

century, comity has come to inform a broader class of cases in which courts have applied

foreign law or refrained from the exercise of domestic prescriptive, adjudicatory, or

enforcement jurisdiction. In this regard, comity functions both as a conflicts rule and as ajustification for deferring to the foreign law.

22AIR 1957 Mad 25, (1955) 2 MLJ 608


14/16

Page | 13

Conclusion

Labor class is indeed one of the classes most vulnerable to exploitation if not the most. Most ofthe labor legislations in India are pre constitutional. The concept of Fundamental Rights was

introduced the Constitution. Although most of the pre constitutional legislations have beenrepealed or curtailed following the Doctrine of Eclipse and Doctrine of Severability, not a lot ofchanges have had to be made to the labor laws that were well passed before the Constitution. The

success of these labor legislations must be attributed to the ILO, as the guidelines issued by the

ILO were formed the principles on which these legislations were drawn. By observing the

passage of Labor Legislations in India, through the various amendments and enactments, it isevident that the ILO did have a great impact on the Labor Laws in India. Many new laws were

enacted to incorporate the guidelines of the conventions of the ILO that were ratified by India.

Referring to the pre-1996 position of arbitration in India, the noted jurist Fali Nariman called theprospect of finality in India an impossible dream.23

It may be an understatement to say that it is very irritating to anyone who has gone through thehard slog of winning an arbitration to then discover that: (a) the loser refuses to pay the award,and (b) the loser then begins to challenge the award in its local courts. In India, an Indian

company can attack a foreign arbitration on two levels:

It can seek to have the award overturned; and

It can seek to have enforcement in India barred.The recent decision of the Supreme Court of India in Venture Global Engineering vs. SatyamComputer Services Ltd. & Anr. has sparked debate as to the current position regarding the

enforcement of foreign arbitration awards in India and how enforcement interacts with the ability

of the losing party to challenge the very basis of the award. For example, some commentatorshave advocated that anyone who deals with an Indian counterparty should make sure that the

contract excludes Indias Arbitration and Conciliation Act 1996.It can be observed that the judgment was motivated as much by conservative judicial attitudes

towards arbitration in India as by faulty drafting of the Arbitration Act. Therefore, essential toreclaiming the dream of arbitral autonomy and finality in India will be a softening of judicial

attitudes towards arbitration.

Though we have implemented UNCITRAL model, we have on a way forgotten the very basis for

which UNCITRAL was introduced. It was introduced to bring global harmony in the dispute

settlement proceedings. We must revaluate our understanding and must restore the lostconfidence of multinationals in our dispute resolution system. We must take the example of the

case Bombay Gas Company Limited v. Mark Mascarenhas24, in which the Bombay High Court

most rightly said that enforcement can be resisted but country having secondary jurisdiction haveno power to set aside a settled award.

23Fali Nariman, Finality in India: The Impossible Dream, (1984) 10 Arbitration International, 373

241998 1 LJ 977


15/16

Page | 14

Bibliography

Statutes

Industrial Dispute Act, 1947

Arbitration Act, 1996

Indian Constitution, 1950

Books Referred

Labour and Industrial Laws, 9th

Edition, Allahbad Law Agency, K.M.Pillai

Arbitration and Conciliation,8th

Edition, Central Law Agency, N.V.Paranjape

Labour and Industrial Laws,Dr. S.K. Puri

Labour Law, S.K. Malik

Labour and Industrial Laws Meenu Paul

Labour and Industrial Laws S.K. Mishra

Other Sources

The UNCITRAL (United Nations Commission on International Trade Law)

Guide.

The Enforcement of Foreign Arbitral Awards in India, Richard Butler

Cambridge Student Law Review: Impossible Dreams and Recurring

Nightmares: The Set Aside of Foreign Awards in India. Impact of ILO on Labor Laws in India, Apurv Karmakar.

International Labour Law, Internatonal labor Organisation,Bureau for

Workers' Activities.

No appeal on foreign arbitration awards: HC, Indian Express


16/16

Page | 15

Enforcing Foreign Judgments in India, Madaan & Co.

Conflict of Laws: An Overview of Enforcement of Foreign Judgments and

Foreign Awards in India, Halsburys Law.

HTMLs referred:

http://www.Indianexpress.com

http://www.ILO.com

http://indiankanoon.com

http://lawmemo.com

http://lexisnexis.com

http://jurisonline,in
http://www.indianexpress.com/http://www.indianexpress.com/http://www.ilo.com/http://www.ilo.com/http://indiankanoon.com/http://indiankanoon.com/http://lawmemo.com/http://lawmemo.com/http://lexisnexis.com/http://lexisnexis.com/http://jurisonline%2Cin/http://jurisonline%2Cin/http://jurisonline%2Cin/http://lexisnexis.com/http://lawmemo.com/http://indiankanoon.com/http://www.ilo.com/http://www.indianexpress.com/

Documents

International Labor law Moving beyond Domestic Boundaries