Geneva Convention Awards: The Older Scheme, and Why It Still Sits in the Act

In one line

The Geneva scheme is the older way of enforcing a foreign award, and it is harder for the winner: the award must be final where it was made, and the applicant must prove the conditions rather than the loser proving the objections.

In exam wording: Chapter II of Part II of the Arbitration and Conciliation Act 1996, sections 53 to 60, gives effect to the Geneva Protocol on Arbitration Clauses 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927, set out in the Second and Third Schedules.

How to study this chapter

Do not learn Chapter II as a separate scheme to be memorised. Learn it as the contrast with Chapter I, because that is how it is examined and because the contrast is what makes the New York Convention's achievement visible.

Every section here has a counterpart in Chapter I, and in each case the Geneva version asks more of the winner.

Section 53: the definition, recalled

Chapter 500 works it through. A foreign award under this Chapter is an award on commercial differences under Indian law, made after 28 July 1924, in pursuance of an agreement to which the Geneva Protocol of 1923 applies, between persons of whom one is subject to the jurisdiction of one declared Power and the other to the jurisdiction of another, and in a territory declared by the Central Government.

Note again the extra requirement about the persons, which section 44 does not have.

Section 54: reference to arbitration

Notwithstanding anything contained in Part I or in the Code of Civil Procedure 1908, a judicial authority, on being seized of a dispute regarding a contract made between persons to whom section 53 applies and including an arbitration agreement, whether referring to present or future differences, which is valid under that section and capable of being carried into effect, shall refer the parties on the application of either of them or any person claiming through or under him to the decision of the arbitrators; and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative.

Two differences from section 45. The agreement must be valid and capable of being carried into effect, put as a positive requirement rather than as an exception. And the closing words expressly preserve the court's competence if the arbitration cannot proceed or becomes inoperative, so the reference is not a final surrender of jurisdiction.

Section 55: when binding

Word for word the same as section 46. An award which would be enforceable under the Chapter is binding for all purposes between the persons as between whom it was made, may be relied on by way of defence, set off or otherwise, and references to enforcing include references to relying on the award.