Two-tier Arbitration Mechanism

That the following questions of law of general and public importance arise for consideration of his Hon’ble Court :-

i) Whether any order in an execution proceeding can be passed before the Court is called upon to decide and declare that the award is enforceable?

ii) Whether any declaration as to the enforceability of a foreign award is to be sought by the award holder before seeking to enforce the foreign award?

iii) Whether a foreign award which arises out of an arbitration agreement which is under challenge in a properly instituted civil suit, can be put to execution before the suit is heard and disposed of?

iv) Whether valid and proper invocation of the arbitration clause is a pre-requisite before seeking to enforce the foreign award arising out of the arbitration agreement between the parties?

v) Whether in a two-tier arbitration mechanism, it is necessary to exhaust the first-tier (i.e. negotiation) before proceeding to formally commence the reference?

vi) Whether the executing Court can assume jurisdiction without there being a declaration as to the enforcement of the foreign award?

vii) Whether the execution of the foreign award was premature before the outcome of the civil suit filed by the appellant?

viii) Whether the invocation of the arbitration clause was properly done by the award-holder?

ix) Whether the Arbitral Tribunal rightly applied the rules, principles and practice of GAFTA Arbitration Rules while delivering the foreign award?

x) Whether an award-holder can seek to apply for execution of a foreign award without first complying with the conditions laid down in Section 48 of the 1996 Act?

xi) Whether a foreign award can be said to be enforceable merely upon production of original award and a duly certified copy of the arbitration agreement?

xii) Whether it is necessary to file a formal application under Section 48 of the 1996 Act to resist the foreign award or objections as to the enforceability of a foreign award can be made even otherwise?

xiii) Whether recourse to Section 49 of the Arbitration & Conciliation Act, 1996 can be taken without satisfying the test laid down in Section 48 of the 1996 Act?

xiv) Whether the executing court can pass any order in aid of execution despite the pendency of a properly instituted civil suit which challenges the very basis of a purported foreign award?

xv) Whether the executing court an substantive pass orders in the execution ignoring the pendency of the civil suit and the observation of the Division Bench of the Calcutta High Court to the effect that “any action taken by the parties to the suit during its pendency shall be subject to and abide by the result of the suit?

xvi) Whether the executability of the foreign award can be decided without allowing the award debtor to file its affidavit or its objection in writing to defend a purported foreign award?

xvii) Whether any interim order can be passed in favour of a party relying upon a purported foreign award without going into at all the objections raised by the petitioner?