w w w . L a w y e r S e r v i c e s . i n



Hindustan Oil Exploration Company Limited v/s Hardy Exploration & Production (India) Inc.


Company & Directors' Information:- OIL INDIA LIMITED [Active] CIN = L11101AS1959GOI001148

Company & Directors' Information:- HINDUSTAN OIL EXPLORATION COMPANY LIMITED [Active] CIN = L11100GJ1996PLC029880

Company & Directors' Information:- S R P OIL PVT LTD [Active] CIN = U23209DL1996PTC303594

Company & Directors' Information:- HINDUSTAN HARDY LIMITED [Active] CIN = L29300MH1982PLC028498

Company & Directors' Information:- S P OIL EXPLORATION PRIVATE LIMITED [Active] CIN = U11200MH2005PTC154716

Company & Directors' Information:- HINDUSTAN OIL EXPLORATION COMPANY LIMITED [Active] CIN = U99999MH1983PLC030926

Company & Directors' Information:- M K S OIL PRIVATE LIMITED [Active] CIN = U23201DL2013PTC250459

Company & Directors' Information:- S M EXPLORATION PRIVATE LIMITED [Active] CIN = U14299DL2021PTC385585

Company & Directors' Information:- OIL CORPORATION OF INDIA PRIVATE LIMITED [Active] CIN = U15133UP1952PTC002471

Company & Directors' Information:- O.I.L PRIVATE LIMITED [Active] CIN = U15400DL2013PTC255692

Company & Directors' Information:- P P OIL PRIVATE LIMITED [Active] CIN = U15141MH1999PTC117925

Company & Directors' Information:- N. M. PRODUCTION PRIVATE LIMITED [Active] CIN = U74999UP2017PTC098512

Company & Directors' Information:- B M A C PRODUCTION PRIVATE LIMITED [Strike Off] CIN = U92111KL2007PTC020385

Company & Directors' Information:- S S PRODUCTION PVT LTD [Strike Off] CIN = U99999DL1974PTC007558

Company & Directors' Information:- V B PRODUCTION PRIVATE LIMITED [Active] CIN = U92190PB2015PTC039265

Company & Directors' Information:- M & C PRODUCTION PRIVATE LIMITED [Strike Off] CIN = U74300MH2010PTC210370

Company & Directors' Information:- M & T EXPLORATION COMPANY PRIVATE LIMITED [Strike Off] CIN = U14220TG2010PTC070323

Company & Directors' Information:- R N PRODUCTION PRIVATE LIMITED [Strike Off] CIN = U92100DL2012PTC232398

Company & Directors' Information:- D & Y PRODUCTION PRIVATE LIMITED [Active] CIN = U92190GJ2014PTC081344

Company & Directors' Information:- B F OIL PRIVATE LIMITED [Strike Off] CIN = U15141DL1993PTC052160

Company & Directors' Information:- HINDUSTAN CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74900KL1901PTC000424

Company & Directors' Information:- HINDUSTAN LTD. [Active] CIN = U99999MH1917PTC000472

Company & Directors' Information:- HINDUSTAN CORPORATION LIMITED [Dissolved] CIN = U99999MH1949PLC007790

    Misc. Civil Application (For Review) No. 1 of 2021 In R. Petn. Under Arbitration Act No. 52 of 2020

    Decided On, 10 August 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE BIREN VAISHNAV

    For the Appearing Parties: Anmol A. Mehta, Manan K. Paneri, Advocates.



Judgment Text

Cav Ia Judgment:1. This is an application filed by the applicant who was the original respondent in the Arbitration Petition No.52 of 2020. By this application, the original respondent has prayed that the Court may review and modify the interim judgment and order dated 26.10.2020 passed by the Court in Arbitration Petition No.52 of 2020 to the extent as submitted.2. Briefly stated, the facts are that the respondent herein has filed an arbitration petition under Sections 47 and 49 of the Arbitration and Conciliation Act, 1996, for recognition and enforcement of a Foreign Award dated 28.02.2020 passed by the Arbitral Tribunal having its seat at Kuala Lumpur.3. After having extensively considered the submissions of the original Arbitration Petitioner (respondent herein) and the respondent in the petition (the applicant herein), the Court passed the following order."5.4 With regard to the question as to whether the award is final and binding as a result of a challenge pending before the Malaysian High Court, reliance is placed on Section 48(1)(e) of the Act, which would indicate that a court under Section 48 may refuse a request of a party for enforcement of the award, if the award has not become binding on the parties or has been set aside or suspended by a competent authority of the country in which or under the law in which the award was made. Section 48(1)(e) and Section 48(3) read as under:Section 48(1)(e) and Section 48(3) in THE ARBITRATION AND CONCILIATION ACT, 1996 (1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that-- (e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.Section 48 (3) (3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.5.5 Whereas Section 48(1)(e) talks of refusal of enforcement of award under three circumstances namely (I) the award is not final and binding, (ii) that it has been set aside or suspended, Section 48(3) of the Act only talks about a circumstance when the application for setting aside or suspending is made before the competent court. The area of operation therefore as submitted by Mr. Thakore, learned Senior Advocate are completely different and would not overlap merits acceptance. That the award has become final and binding is also evident on reading Section 36 of the MAA, 2005 which reads as under:"(1) An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon by any party by way of defence, set-off or otherwise in any proceedings in any court..."6. It would therefore become evident when Section 36 of the MAA is read with Section 37 thereof, that the award though a subject matter of challenge before the Malaysian High Court would become final and binding and may be relied upon by any party in any proceedings in any court.7. Mr. Trivedi, learned Senior Counsel for the respondent's submission that Section 37 of the MAA is similar to the pre 2015 amendment era in context of Section 36 of the Indian Arbitration Act also does not merit acceptance in view of a specific provision namely Section 36 of the MAA. Even otherwise the amended Section 36 of the Indian Arbitration Act, also provides that there is no automatic stay of the award on filing section 34 petition. There is no provision similar to the unamended section of the Indian Arbitration Act in the MAA Act. On the contrary, Section 36 of the MAA would make the foreign award in question final and binding and therefore the submission of Mr. Trivedi, learned Senior Advocate for the respondent that Section 48(1)(e) of the Act would apply becomes an argument without merit.8. Under Section 48(3) of the Arbitration Act, if an application for setting aside or suspension of an award has been made to a competent authority referred to in clause (e) of sub-section (1) of Section 48, the court may if it considers proper adjourn the decision on the enforcement of the award. Sub-section (3) of Section 48 further contemplates that the court MAY ALSO on the application of the party claiming enforcement order the party to give suitable security.9. Considering Section 36 of the MAA when the arbitral award has become final and binding and a challenge to such award is pending before the competent authority, I consider it proper to adjourn the decision on the enforcement of the award for a period upto 22.01.2021 without the respondent party being obliged to give suitable security.10. Accordingly, Rule returnable on 22.01.2021.11. By the returnable date, the respondent shall lodge its objections with regard to the enforceability of the award under Section 48(2) of the Act. Of course, it is also open for the respective parties to approach the Malaysian High Court for expeditious hearing of the appeal filed before that court, in accordance with the law concerned."4. Mr.Ajay Mehta with Mr.Anmol Mehta appearing for the applicant in the present application have submitted that the order dated 26.10.2020 needs to be reviewed or modified for the following reasons:4.1 According to the learned counsel, the reference to Section 36 of the Malaysian Arbitration Act in the interim order is misplaced. He would submit that what is applicable in the instant case is Section 38 of the Malaysian Arbitration Act, which is equivalent to Section 36 of the Indian Arbitration Act. Section 38 of the Malaysian Arbitration Act suggests that the award to be recognized as binding and enforceable is subject to the provisions of Section 39 of the Malaysian Arbitration Act which is pari-materia with Section 48 of the Indian Arbitration Act. He would submit that Section 36 of the Malaysian Arbitration Act cannot be read in isolation and the award in question has not become final and binding. He would therefore press for review and modification of the observations of this Court in para 9 of the order. Simultaneously therefore, inviting the observations of the Court in context of Section 36 of the Indian Arbitration Act, Mr.Mehta would submit that it cannot be said that the award has become final and binding to the respondent-the applicant herein.4.2 Mr.Mehta would submit that so long as the proceedings under Section 37 of the Malaysian Arbitration Act are pending, it cannot be said that the award has attained finality and therefore, the reference and reliance placed on Section 48(2) of the Indian Arbitration Act for the purpose of lodging of objections by the applicant herein is misplaced.4.3 Written submissions have been filed by the applicant too. Mr.Mehta would submit that this Court should exercise the powers of review which are very much available to this Court to recall and modify the order though passed under the Arbitration Act. In support of his submission, Mr.Gupta would rely on the decision of the Supreme Court in the case of Municipal Corporation of Greater Mumbai and Another v. Pratibha Industries Limited and others reported in (2019) 3 SCC 203. He would submit and rely on the observations made in paragraph 10 of the judgment to submit that it is open for the High Court as it is a Court of record under Article 215 of the Constitution of India to recall its own order.4.4 He would further submit that merely because the Arbitration Act is silent on the aspect of review, does not make a review application not maintainable. In support of these submissions, in addition to the decision in the case of Municipal Corporation of Greater Mumbai (supra), he relied on the decisions as under:(I) Maheshwari Brothers Ltd. v. National Highway Authority of India reported in 2007 (1) ArbLR 64 (II) Shyam Sunder Agarwal and Co. Vs. Union of India reported in (1996) 2 SCC 132 (III) ITI Ltd. Vs. Siemens Public Communications Network Ltd reported in (2002) 5 SCC 510 (IV) Nirma Ltd. Vs. Lurgi Lentjes Energietechnik Gmbh and Another reported in (2002) 5 SCC 520 (V) Commissioner of income Tax, Guwahati Vs. Meghalaya Steels Limited reported in (2015) 17 SCC 647 These decisions were relied upon in support of his submission that the provisions of the Code of Civil Procedure are applicable to the proceedings under the Arbitration Act and therefore a review petition is maintainable.4.5 Reiterating his submissions on the aspect of the Arbitration Award becoming final and binding, Mr.Mehta would submit that reading the provisions of the Malaysian Arbitration Act, it is evident that once the applicant has filed an application challenging the arbitral award, it cannot be said that the award has become final and binding. In support of his submissions, Mr.Mehta has relied on the following decisions:(I) Yugraneft Corporation Vs. Rexx Management Corporation reported in 2010 SCC 19 (CanLII)(II) Diag Human SE Vs. The Czech Republic reported in [2014] EWHC 1639 (Comm)(III) Malaysian Bio-Xcell SDN BDH Vs. Lebas Technologies SDN BHD arising from Civil Appeal No.: W-02(IM)(C)-1532-07/20184.6 According to Mr.Mehta the Court had therefore committed an error apparent entitling the applicant to file a review before this Court.5. Shri Mihir Thakore learned Senior Advocate assisted by Mr.Manan Paneri has appeared for the respondent in this application. Initially an objection for the review being time barred has been raised by the respondents, however, in view of the observations in various orders of the Supreme Court with regard to relaxation of the period of limitation due to the pandemic, the objection as to the application being time barred has been dropped. Mr.Thakore learned Senior Advocate would submit as under:5.1 He would submit that the Indian Arbitration Act is a complete and an exhaustive self contained code on arbitration and in view of it being so, the power of review is not conferred on this Court. For the purpose of this submission, Mr.Thakore would rely on the decision in the case of Kandla Export Corporation v. OCI Corporation reported in (2018) 14 SCC 715. He would draw the attention of this Court particularly to the decision and para 20 thereof in support of this submission.5.2 Mr.Thakore would submit that an application under Section 47 of the Indian Arbitration Act is not an application filed under the provisions of Order 21 of the Code of Civil Procedure. The provisions of the Code of the Civil Procedure will only be taken for the execution proceedings. The Arbitration Act being a self contained code, a review is not maintainable. Reliance was placed on the decision in case of Government of India v. Vendanta Ltd. reported in (2020) 10 SCC 1. He would rely on the para 77 of the decision. He would therefore submit that the general provisions under the Code of Civil Procedure to seek review of the order are not applicable. Reliance is placed on the decision in case of Manish Engineering Enterprises v. Managing Director, IFFCO reported in AIR 2008 ALL 56, in support of his submissions. He would rely on para 15, 17, 18 and 20 of the aforesaid decision.5.3 Mr.Thakore would also rely on the decision in case of Madhav Structural Engineering v. Maharashtra State Road Development Corporation reported in (2013) 2 MahLJ 372. Inviting the attention of the Court to para 15 of the decision he would submit that the Arbitration and Conciliation Act is a contained Code and does not provide for any remedial review.5.4 Various decisions have been relied upon to submit that reading the order of the Court dated 26.10.2020, there is no error apparent on the face of the record. The review application is nothing but an application demanding a re-look and a re-adjudication of facts and law already decided in the order. He would submit that there is no mistake or an error pointed out from the face of the record. This is nothing but an attempt to appeal the order which is not maintainable under the guise of review mechanism. Reliance is placed on the decision in the case of State of West Bengal v. Kamal Sengupta reported in (2008) 8 SCC 612. Para 22 of the decision in the case of Kamal Sengupta (supra) is pressed into service. He would further submit that there cannot be a rehearing and a fresh decision on merits and the present review proceedings are appeal in disguise. Reliance is placed on the decision in case of Lily Thomas v. Union of India reported in (2000) 6 SCC 224. He would rely on paras 53 and 56 of the decision.5.5 Mr.Thakore would submit that an error to be an error on the face of the record must be such an error which must strike one on a mere look at the record and would not require a long drawn process of reasoning and points where there may be two opinions. Reliance is placed on the decision in case of Dolat Industries v. Krishna Oil Industries reported in AIR 2002 Guj 91. He would rely on para 9 of the aforesaid decision.5.6 On merits, Mr.Thakore would submit that even otherwise the order rightly holds that the foreign award is final and binding.5.7 During the course of his submissions, Mr.Thakore has extensively referred to the provisions of Section 37 and 38 of the Indian Arbitration Act. Section 35, 36 and 37 of the Indian Arbitration Act as well as the provisions of Section 36 to 39 of the Malaysian Arbitration Act. Reading the provisions extensively before this Court, Mr.Thakore would submit that;* The contention of the applicant that the foreign award has not become final and binding in view of the application challenging the foreign award before the Malaysian Court would not imply that the award has not become final and binding.* As per the provisions of New York Convention which was incorporated in the first schedule of the Indian Arbitration Act, under Article V(1)(e) of the New York convention is reflected in the provisions of Section 48(1)(e) of the Arbitration Act which provides that the recognition and enforcement of foreign award can be refused only if the party against whom it is invoked, for the enforcement of the award submits proof that the award has not become final and binding. He would rely on the decision in case of Universal Tractor Holding LLC v. Escorts Ltd reported in (2012) 192 DLT 273 which was reaffirmed in case of Escorts Ltd. v. Universal Tractor Holding reported in (2013) 10 SCC 717.* Referring to Section 36 of the Malaysian Arbitration Act, Mr.Thakore would submit that reading the Section it was evident that there is nothing to show that the foreign award has not become final and binding. He would support the observations made in the order of which the review is sought where the Court taking into consideration the provisions of Sections 36 and 37 of the Malaysian Arbitration Act has held that the award is final and binding.* As far as the submission of Mr.Mehta by placing reliance on the provisions of Section 38 and 39 of the Malaysian Arbitration Act, though Mr.Thakore would agree that these are the provisions akin to Section 38 and 39 of the Indian Arbitration Act, they are not applicable to present case inasmuch as, reading Sections 38 and 39 it is clear that these are provisions for enforcement of an award in context of Malaysian Courts to an arbitration award outside the Malaysian Courts and enforcement of which is sought before the Malaysian Courts. As far as Section 48 of the Indian Arbitration Act is concerned, it is with respect to a foreign award of which an enforcement is sought in India. He would therefore submit that there is no reason for which the award cannot be said to be final and binding even post the amendment to Section 34 of the Indian Arbitration Act read with Section 36 thereof, which provides that there is no automatic stay of the arbitration award unless an application is filed. Mr.Thakore would rely on the decision in case of Universal Tractor (supra), particularly para 25 to 35 thereof and more particularly para 30 of the decision, wherein it is held that the judgments earlier taking into consideration the unamended provision of Section 36 which provides for an automatic stay of an award, was incorrect and even then there was no automatic stay of an award under the Indian Arbitration Act. Section 36 of the Indian Arbitration Act post 2015 amendment requires an express filing of an application for stay and clarifies that mere filing of a challenge application under Section 34 of the Indian Arbitration Act does not lead to an automatic stay. Mr.Thakore would submit that the Court under Section 48 of the Act has only decided that the award has become final and binding. The applicant has to lodge his objections with regard to the enforceability of the award which is subject to the outcome of the Malaysian challenge is clearly observed. The application is therefore misconceived. On the decisions relied upon by the learned counsel for the applicant in case of Yugraneft Corporation (supra), Diag Human SE (supra) and Malaysian Bio-Xcell SDN BDH (supra) Mr.Thakore would submit that these decisions are not applicable to the facts of the case as they are in connection with Sections 38 and 39 of the Malaysian Arbitration Act and that they were in context of an agreement between the parties who had agreed on an additional arbitral review after passing of an award.6. Having considered the submissions made by the learned counsel for the respective parties, the Court would proceed to examine the application in the context of the merits of the application so filed rather than delve into the question of the maintainability an application for review filed under the Arbitration Act. This is so because, without adjudicating or giving an opinion on the maintainability of this application, the Court finds that even otherwise on merits, the application for review need not be entertained.6.1 The Court would agree with the submissions made by the learned counsel for the respondent that by filing this application for review and on appreciating the submissions of the applicant, what is evident is that under the guise of review proceedings, a demand is made for a complete re-adjudication of facts and the law which is already decided in the order. The application is nothing but an attempt to classify this as an appeal and a re-argument of the submissions made earlier. If the Court were to accede to the request of review of the order passed by this Court, what the applicant would succeed is to seek a review where the entire purpose of a rehearing and a fresh decision would have been undertaken on merits. This is not what is contemplated in undertaking the exercise of review. As held in the decision in the case of Kamal Sengupta (supra), there can be no detailed examination of the factual and the legal position in the case of a review. Para 22 of the said decision reads as under:"22. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision."6.2 Even in the case of Lily Thomas (supra) the Court has held that unless there is a mistake or a grave error, the powers of review cannot be exercised to substitute a view. Paras 53 and 56 of the decision read as under:"53. This Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi considered the powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the Supreme Court Rules and held:8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan . For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. G.L Gupta v. D.N. Mehta . The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice ON Mohindroo v. Dist. Judge, Delhi . Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the CPC and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'. Chandra Kanta v. Sheikh Habib."...56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."7. On appreciating and reading the provisions of Sections 36 and 37 of the Malaysian Arbitration Act, in juxtaposition with the provisions of 34 and 36 of the Indian Arbitration Act, the Court in so many words rejected the challenge of the applicant who sought to canvass that in view of the pending challenge under Section 37 of the Malaysian Arbitration Act, the award had not yet become final and binding.8. In this context, it will be in the fitness of things to consider the provisions of Sections 35 and 36 of the Indian Arbitration Act which provide that an award shall become final and binding. Post the 2015 amendment, Section 36 would indicate that when an application is filed to set aside the arbitral award under Section 44 of the Act, unless a separate application is filed for the stay of operation of the arbitral award, there is no automatic stay as was provided under the pre-2015 amendment. However, post 2015 amendment unless an application for stay is filed and there is an express stay of the award, the award is binding on the parties.9. The argument of the learned counsel for the applicant herein-the original respondent before the Arbitral Petition by relying on the provisions of Section 36 of the Malaysian Arbitration Act in context of it being pari-materia with the pre-amended Section 34 of the Indian Arbitration Act, this Court has expressly on considering these submissions, not agreed therewith. This was in view of Section 36 of the Malaysian Arbitration Act. Even Section 37 of the Malaysian Arbitration Act when it was sought to be read in context of the pre-2015 amendment of Section 36 of the Arbitration Act, the Court was of the opinion that there is no provision similar to the unamended section of the Arbitration Act of India. Even otherwise, as rightly submitted by Mr.Thakore, reading the observations of the Supreme Court in case of Hindustan Construction Company Vs. Union of India reported in 2019 SCC OnLine SC 1520, it is clear that a challenge to the award and it becoming unexecutable because of a challenge being made to it by relying on Section 36 of the Indian Arbitration Act, was not accepted. The award therefore would become binding on the parties even if a challenge to the award has been made under Section 36. The same principle would therefore apply as observed in the order sought to be reviewed.10. Assuming that this is a finding contrary to law, the remedy of review certainly is misconceived at the hands of the applicant.11. While passing the order, a review of which is sought, the Court extensively considered the provisions of Section 48(1)(e) and 48(3) of the Indian Arbitration Act. The applicant's submission that the award has not become binding on the parties, was not accepted. If what is submitted by Mr.Mehta now that the award has not become binding on the parties is accepted, the Court would not only be opening and re- appreciating a legal contention that was decided albeit not to the liking of the applicant, position of law as submitted by Shri Thakore needs to be accepted. In the case of Universal Tractor Holding LLC (supra) which was reaffirmed in Escorts Ltd. (supra), para 27 in context of New York Convention in the first schedule of the Indian Arbitration Act, it has been categorically submitted that the principle of "double exequatur" had been abandoned. Para 27 of the decision in the case of Universal Tractor Holding LLC (supra) reads as under:"27. As noted earlier, the First Schedule to the Act incorporates the provisions of the New York Convention. Under Article V (1) (e) thereof the recognition and enforcement of an Award can be refused only if the party against whom it is invoked furnishes to the competent authority where the recognition and enforcement is sought, proof that "the Award has not yet become binding on the parties" under the law of the country in which the Award was made. Thus apart from the two innovations of the New York Convention viz., abandonment of the 'double exequatur' rule and shifting the burden of proving that the Award had not become final on the party resisting enforcement, the other change was that the concept of a "final Award" under the Geneva Convention was replaced by the concept of a "binding Award." In the commentary on 'International Commercial Arbitration' by Mr. Gary B. Born (Kluwer Law International, 2009) this distinction is explained thus (Vol. II at p. 2720):"International Arbitration Conventions: 'Final' or 'Binding' Awards.Under international arbitration conventions that preceded the New York Convention, enforcement of foreign arbitral Awards was generally required only if those Awards were "final". That was true, for example, under the Geneva Convention, which only mandated enforcement of "final"arbitral Awards. Moreover, the Geneva Convention provided that the burden of establishing "finality" was on the party seeking enforcement, which was required to demonstrate that the Award was "not open to opposition, appeal or pourvoi en cassation (in the countries where such forms of procedure exist) [and that no] proceedings for the purpose of contesting the validity of the Award are pending."As a consequence, parties seeking

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to enforce foreign arbitral Awards under the Geneva Convention were effectively required to follow a so-called "double exequatur" process. This entailed obtaining judicial confirmation of the Awards in the local courts of the places where they were rendered (in order to prove their "finality"), and thereafter seeking judicial enforcement abroad.As reflected in the New York Convention's drafting history, one of the principal (and deliberate) innovations of the Convention was its abandonment of the "double exequatur" procedure which was widely perceived as cumbersome and ineffective. This purpose is uniformly confirmed by commentary and national court decisions. To accomplish this, the Convention shifted the burden of proof to the party resisting the Award (who is required to prove the existence of grounds for non-recognition of the Award, including that an Award is not binding).In addition, the Convention specifically abandoned the "finality" requirement, which had been contained in Article 1 of the Geneva Convention. Instead, Article III of the New York Convention requires that arbitral Awards shall be recognized, while Article V (1) (e) permits, but does not require, non-recognition of an Award if it has not become "binding" or has been set aside where it was made. Under these provisions of the Convention, once an Award becomes "binding" it is subject to recognition in any Contracting State - notwithstanding the fact that the Award has not been confirmed in the arbitral seat."12. Therefore, though the award may not have become final, it cannot be said by reading Section 48(1)(e) that the award has not become binding on the parties. Nothing more be said further as reiterated in the order of which the review is sought. The Court would rest in expressing anything beyond this.13. The challenge to the order under the guise of the review relying on the submissions made on provisions of Section 38 and 39 of the Malaysian Arbitration Act also cannot be gone into not only because that would amount to rehearing and reopening a legal submission, but even otherwise those provisions have to be seen in context of an application for an enforcement of an award made before the Malaysian Court. The Court in the present Arbitration Petition was concerned with an application for enforcement of a foreign award inside India and therefore, the reliance placed thereon is misconceived.14. The decisions relied upon by the learned counsel for the applicant Mr.Mehta in case of Yugraneft Corporation (supra), Diag Human SE (supra) and Malaysian Bio-Xcell SDN BDH (supra) need not be considered and appreciated inasmuch as any opinion on these issues would be traveling into an arena of re-appreciating the legal submissions, which this Court under a review cannot.15. Keeping the question of whether in fact a review at all can be maintainable when the Indian Arbitration Act is a self contained code, on merits I do not find any reason so as to recall and/or modify the order passed by this Court on 26.10.2020.16. The review application is therefore without merit and is therefore dismissed. No order as to costs.
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