Enforcement the key

An increasing number of arbitral awards are now being challenged, resulting in protracted enforcement proceedings. It is therefore essential for the parties, their counsel, and the arbitrators to focus on enforcement right from the start - from the drafting of the arbitration clause, through the arbitral proceeding that leads to the arbitral award, and during the enforcement proceedings

- TEJUS CHAUHAN

India continues to attract foreign investors who bet heavily on the country's growing population, rising consumer market, and a young and dynamic labour force. Slated to be the world's third largest economy by 2030, India has attracted foreign companies and investments across various industries. With this cross-border trade, disputes are inevitable. Several leading surveys show that arbitration, rather than litigation, is the preferred method for resolving cross-border disputes.

One of the key reasons businesses around the world chose arbitration to resolve cross-border disputes is the prospect of a streamlined and predictable enforcement process if the losing party does not comply with the arbitral award. Without enforcement, an arbitral award may seem like a pyrrhic victory.

Under the Convention on the Enforcement and Recognition of Arbitral Awards, known colloquially as the New York Convention and now signed by more than 170 countries, including India, arbitral awards are presumed to be enforceable, with limited grounds for challenge. Notably, the International Chamber of Commerce (ICC) prepared the first draft of what became the Convention and played a vital role in its adoption.

An increasing number of arbitral awards, however, are now being challenged, resulting in protracted enforcement proceedings. It is therefore essential for the parties, their counsel, and the arbitrators to focus on enforcement right from the start – from the drafting of the arbitration clause, through the arbitral proceeding that leads to the arbitral award and during the enforcement proceedings.

Below are some of the key elements to keep in mind to ensure that arbitral awards are enforceable.