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CS Professional · Arbitration, Mediation and Conciliation

International Law of Arbitration for CS Professional

International law of arbitration covers disputes with a foreign element. You learn what makes an arbitration international commercial, which law decides the substance (Section 28), how seat and governing law differ, and when Indian courts enforce foreign awards under the New York and Geneva Conventions. Answer each case by provision, facts, conclusion.

What this chapter covers

This chapter deals with arbitration that crosses borders. It starts with the definition of international commercial arbitration in Section 2(1)(f), moves to the law that decides the dispute (Section 28), and then to the practical question every cross-border contract raises: where the arbitration sits and which law governs what. It ends with the enforcement of foreign awards in India under Part II of the Act, and with the wider framework of the UNCITRAL Model Law and international institutions.

The chapter links directly to the rest of Paper 7.1. Part I of the Act (tribunal, procedure, award, challenge) applies where the place of arbitration is in India. Part II takes over for foreign awards. So you must be able to say, for any fact pattern, which Part applies and why. The proviso to Section 2(2) adds a twist: certain sections of Part I can apply even where the seat is abroad, unless the parties agree otherwise.

The papers are written and case-based, and the elective is open book. That helps with section numbers, but not with analysis. Marks go to students who identify the issue, apply the exact wording to the facts, and reach a clear conclusion.

Questions on this chapter are fact-based: a Indian company contracts with a foreign party, a dispute arises, and you must say what law applies and whether the award can be enforced. These answers follow a fixed pattern of definition, condition, exception, so careful students score well. The chapter also makes the rest of Part I and Part II easier to understand, because it explains why the Act is split the way it is. Time spent here pays off in both short-note and case-study answers.

International Law of Arbitration: topics in the order to study them

  1. 1International Commercial Arbitration: Meaning and ScopeEverything else depends on the Section 2(1)(f) test, so learn who counts as a foreign party first.
  2. 2Seat, Venue and Governing Law in ArbitrationSeat decides which Part of the Act applies, so you need this before reading Section 28 or enforcement.
  3. 3Rules Applicable to Substance of Dispute (Section 28)With seat clear, you can now see which law the tribunal applies to the merits in domestic and international cases.
  4. 4Enforcement of Foreign Awards under New York ConventionThis is the main enforcement route and the most examined part, so study it once the basics are firm.
  5. 5Foreign Awards under the Geneva ConventionIts conditions are easier to remember when you can compare them with the New York Convention grounds.
  6. 6UNCITRAL Model Law and International Arbitration InstitutionsThis is background and context, best read last to tie the chapter together.

How to prepare International Law of Arbitration

Treat this chapter as a decision tree: is it international, where is the seat, which law applies, can the award be enforced. Build your notes in that order.

  1. Read Section 2(1)(f) and write its four categories of foreign party in your own words. Note that it needs a commercial relationship under Indian law.
  2. Draw a simple chart: seat in India means Part I; award made abroad means Part II. Add the proviso to Section 2(2) as an exception.
  3. Learn Section 28 in two columns: domestic arbitration with seat in India (Indian substantive law) and international commercial arbitration (law chosen by parties, else law the tribunal considers appropriate). Add sub-sections (2) and (3).
  4. Make a table of Section 48 refusal grounds. Note that the party resisting enforcement must furnish proof for sub-section (1), while the court may itself find the sub-section (2) grounds.
  5. Make a second table for Section 57 on the Geneva route, listing the conditions for enforcement and the grounds for refusal. Compare the two tables line by line.
  6. Practise three or four case-based answers aloud or in writing, using the format provision, facts, conclusion. Keep the Act open to check wording.
  7. Finish with a one-page note on the UNCITRAL Model Law and the main institutions, enough for a short note.

Common mistakes in International Law of Arbitration

  • Treating seat, venue and governing law as the same thing.

    Fix: Define each separately in your notes: seat decides the supervisory legal framework, venue is where hearings happen, governing law decides the substance. Then check what the facts actually say.

  • Applying Section 28(1)(b) to a purely domestic arbitration, or the reverse.

    Fix: Start every Section 28 answer by classifying the arbitration as domestic or international commercial, and confirm the seat is in India.

  • Missing a foreign-party category in Section 2(1)(f).

    Fix: Memorise all four categories and test the facts against each. Note that a company incorporated in India is not covered, even if controlled from abroad.

  • Reopening the merits when discussing public policy.

    Fix: State the three limited heads in the Explanation and add that the fundamental policy test does not entail a review on the merits.

  • Mixing up the New York and Geneva enforcement conditions.

    Fix: Keep two tables. Section 48 lists refusal grounds the resisting party must prove. Section 57 lists conditions for enforceability and grounds on which enforcement shall be refused. Check which Convention the award falls under first.

  • Writing section numbers without applying them to the facts.

    Fix: Use the three-step pattern every time: provision, analysis of the facts, conclusion. Spend most of the answer on the middle step.

Last-day revision: International Law of Arbitration

  • International commercial arbitration needs a commercial dispute under Indian law and at least one foreign party under Section 2(1)(f).
  • Foreign party types: foreign national or resident individual, foreign body corporate, association with central management and control abroad, or a foreign Government.
  • Part I applies where the place of arbitration is in India; the proviso to Section 2(2) extends certain sections to foreign-seated international commercial arbitration unless parties agree otherwise.
  • Section 28(1)(a): in domestic arbitration seated in India, apply Indian substantive law.
  • Section 28(1)(b): in international commercial arbitration, apply the rules of law the parties designate; a country's law means its substantive law, not its conflict rules.
  • If parties designate no law, the tribunal applies the rules of law it considers appropriate.
  • Section 28(2): ex aequo et bono or amiable compositeur only if parties expressly authorise it.
  • Section 28(3): in all cases the tribunal must take into account the contract terms and applicable trade usages.
  • Section 48(1): enforcement refused only if the resisting party proves a listed ground, such as incapacity, no proper notice, excess of submission, wrong composition or procedure, or award not binding or set aside.
  • Section 48(2): court may refuse if the subject matter is not arbitrable under Indian law or enforcement is against public policy.
  • Public policy is limited to fraud or corruption (or breach of Section 75 or 81), fundamental policy of Indian law, and basic notions of morality or justice; no review on merits.
  • Once the court is satisfied, a foreign award is deemed a decree of that court (Sections 49 and 58).

International Law of Arbitration practice questions

International Law of Arbitration: frequently asked questions

What makes an arbitration international commercial arbitration?

The dispute must arise from a legal relationship considered commercial under Indian law. At least one party must be a foreign national or resident individual, a body corporate incorporated outside India, an association whose central management and control is exercised outside India, or a foreign Government. This is the test in Section 2(1)(f).

Which law does the tribunal apply under Section 28?

In an arbitration seated in India that is not international, it applies Indian substantive law. In an international commercial arbitration seated in India, it applies the rules of law the parties designate. If they designate none, it applies the rules it considers appropriate. In all cases it must consider the contract terms and trade usages.

On what grounds can a foreign award be refused enforcement under Section 48?

The resisting party must prove grounds such as incapacity or an invalid agreement, lack of proper notice, matters beyond the submission, wrong composition or procedure, or the award not yet binding or set aside. The court can also refuse if the subject matter is not arbitrable in India or enforcement conflicts with public policy.

Do I need to memorise section numbers for this chapter?

The elective is open book, so you can consult the Act. Still, know the key sections well enough to find them fast: 2(1)(f), 28, 44, 48, 49, 57 and 58. Marks come from applying the rule to the facts.