National Thermal Power Corporation v. Singer Company (1993)

Part II exists because an award made abroad is not a decree of any Indian court and is not a domestic award under Part I. Everything in that Part — the s. 47 documents, the narrow refusal grounds in s. 48, the deemed decree in s. 49 — turns on whether the award before the court is a foreign award at all. Get that wrong and the whole answer is in the wrong Part of the Act.

The instinctive test is geography: made outside India, therefore foreign. NTPC v. Singer rejects that test, and its proposition is the one the course tells you to stress in the foreign awards essay.

The dispute arose out of a contract between an Indian public corporation and a foreign company, with arbitration proceedings connected to a foreign country. What mattered was not the commercial detail but the relation between the place where the award was made and the law governing the arbitration agreement.

An award is foreign not merely because it is made in a foreign State, but because it is made there on an arbitration agreement not governed by the law of India. Where the arbitration agreement is governed by Indian law, the award is not converted into a foreign award by the accident of the place at which it was made.

1. Separate the two questions the statute asks. The definition of a foreign award has more than one element: the award must arise out of differences in a relationship considered commercial under Indian law, be made in a notified Convention territory, and rest on an agreement in writing to which the Convention applies. Place is one element among several, not the test.
2. Follow the proper law of the arbitration agreement. The parties' choice of law fixes the legal order to which the arbitration belongs. Where that order is Indian, the supervisory jurisdiction is Indian, and the award is domestic in the sense that matters.
3. Prevent forum manufacture. If place alone decided the question, parties could move the award out of the reach of Indian supervisory law merely by signing it abroad.

It opens the definitional step of the foreign awards essay. The structure the course recommends is: define a foreign award under s. 44 by its four elements, stressing notification and this case; then the documents to be produced under s. 47; then s. 48(1) and (2) and why the refusal grounds are narrower than s. 34; then the deemed decree under s. 49; then s. 50, under which an appeal lies only from a refusal to enforce; then the table comparing the New York and Geneva Conventions.

Carry two companion points with it. Notification is essential: a country's being a party to the New York Convention does not by itself make its awards enforceable in India, because there must also be an Indian notification declaring it a territory to which the Convention applies; awards from a non-notified country are not foreign awards under s. 44. And on transition, a foreign award made after the 1996 Act came into force is enforceable only under Part II, with no vested right to enforce it under the repealed 1961 Act even where the foreign proceedings began earlier (Thyssen Stahlunion).

It disposes of the argument that the place of the award settles its character, in either direction.

It does not decide whether a particular country is notified, whether the relationship is commercial under Indian law, or anything about the grounds on which enforcement may be refused. Note also that this decision belongs to the law before the 1996 Act; the Explanation to s. 47 on which court has jurisdiction has itself been changed, so check the current text before advising on forum.