[The following guest post is contributed by Suprotik Das, a 5th year law student at the Jindal Global Law School, Sonepat, Haryana.]
On April 11, 2017, the Delhi High Court rendered a judgement in the case of Cruz City 1 Mauritius Holdings v. Unitech Limited. As mentioned in this blog earlier, this case dealt with enforcement proceedings of a foreign arbitral award. Unitech Ltd. (the Indian party) argued against the enforcement of such an award as it dealt with the exercise of a put option with a fixed/assured rate of return. Put options with a fixed rate of return are against the provisions of the Foreign Exchange Management Act, 1999, A.P. (DIR Series) Circular No. 86 dated January 9, 2014 and A.P. (DIR Series) Circular No. 3 dated July 14, 2014. As a result, Unitech Ltd. argued that this award was against ‘public policy’ under section 48 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’).
In coming to this conclusion, the Delhi High Court had extensively referred to an earlier Supreme Court Case of Renusagar Power Co. Ltd. v. General Electric Co. (‘Renusagar’) which dealt with a similar fact pattern. However, Renusagar itself is fraught with several problems, and a mere mechanical application of this by the Delhi High Court has resulted in some serious ramifications. In this post, I will be exploring what the Supreme Court had actually held in the Renusagar case.
The Renusagar case - the first head of the hydra
For the purposes of this post, I will be restricting my discussion to the public policy aspect of the case, as this was heavily relied upon by the Delhi High Court in Cruz. In Renusagar, an arbitral award was passed for a sum of USD 2,130,785.52 in favour of General Electric Company (‘GE’). Renusagar immediately contested the enforcement proceedings of this award before the Bombay High Court and alleged that the enforcement of the said foreign award was against ‘public policy’ under section 7(1)(b)(ii) of the then Foreign Awards Act, 1961 (‘Foreign Awards Act’), and hence that the award ought not to be enforced. The Court went on to an elaborate discussion as to the width and scope of the expression ‘public policy’ in section 7(1)(b)(ii) and concluded that it meant ‘public policy as applied by the Courts of India’.
In paragraph 65 of Renusagar, the Court opined that ‘public policy’ covers the field not covered by the words ‘and the law of India’, such that contravention of law alone will not attract the bar of public policy and something more than contravention of law is required.
Something more than the violation of the law in India
Paragraph 66 of the case is essentially where the problem starts. The Court referred jointly to article V(2)(b) of the New York Convention and section 7(1)(b)(ii) of the Foreign Awards Act and concluded that they did not contemplate non-recognition and enforcement of a foreign award on the ground that it was contrary to the law of the country of enforcement. Any ground of infirmity of a foreign arbitral award had to be pitted against the public policy of the country, in the country of enforcement of such an award.
Furthermore, the Court stated that there was nothing to indicate that the meaning of ‘public policy’ in the above two statutes was used in pari materia with article I(c) of the Geneva Convention of 1927 and section 7(1) of the Protocol and Convention Act of 1937. Accordingly, it was opined that public policy ought to be construed in a narrow sense such that ‘in order to attract the bar of public policy the enforcement of the award must invoke something more than the violation of the law of India.’ The Court finally concluded that if a foreign award was contrary to: (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality, then it would be hit by the infirmity of being against the public policy of India, and would thus be unenforceable. This expression now finds place in explanation 1 of the amended section 48 of the Arbitration and Conciliation Act, 1996.
Violation of FERA equals violation of public policy
Strangely, the Supreme Court did not resonate with its reasoning in the earlier paragraphs. In paragraph 76, the Supreme Court had stated that the provisions contained in the Foreign Exchange Regulation Act, 1973 (‘FERA’) have been enacted to safeguard the economic interests of India and any violation of the provisions would be contrary to the public policy of India as envisaged in section 7(1)(b)(ii) of the Foreign Awards Act. In doing this, the Supreme Court completely ignored its ‘something more than the violation of the law of India’ approach and essentially stated that if there is a foreign award that was is a violation of the provisions of the FERA, it would be against the public policy of India as per section 7(1)(b)(ii) of the Foreign Awards Act.
Arbitral award not against FERA
Mr. K.K. Venugopal, appearing for Renusagar, argued that the arbitral award was against section 47(3) of the FERA. The Supreme Court interpreted section 47(3) of the FERA in light of the erstwhile section 21 of the FERA, 1947 by referring to the case of Dhanrajamal Gobindram v. Shamji Kalidas & Co. and stated that section 47(3) allowed legal proceedings to be brought to recover sum due as a debt, damages or otherwise, but no steps would be taken to enforce the judgment, except to the extent permitted by the Reserve Bank of India. Mr. Venugopal subsequently argued that section 47(3) postulated seeking of permission first, and where permission was sought but refused by the government earlier, section 47(3) was inapplicable. The background to this argument was that Government of India had rejected a plan to reschedule payment of interest instalments as it would have resulted in larger outflow of foreign exchange. However, the Court did not accept Mr. Venugopal’s argument. Previous refusal by the Government to give an approval for rescheduling of payment of instalments did not mean that the Government would not allow enforcement of the award in the present proceedings, in light of subsequent developments.
Not surprisingly, the Court held that the award was not in violation of any of the provisions of the FERA and was, therefore, not contrary to the ‘public policy of India’. This also meant that the award was enforceable in light of section 7(1)(b)(ii) of the Foreign Awards Act.
If an award has to be against the public policy of India and is to be set aside (termed as ‘C’) and if ‘something more than the violation of the law in India’ can be termed as ‘A + B’, where A stands for violation of a law and ‘B’, for something more, it necessarily means that ‘A + B’ = ‘C’.
The Supreme Court had later stated that if an award violated FERA, it meant that it was in contravention with the ‘public policy of India’. This essentially means that notwithstanding the ‘A + B’ = ‘C’ approach, in practice, the Supreme Court has resorted to ‘A’ = ‘C’ and has ignored ‘B’.
Therefore, the perplexing conclusion is that we are at odds with the application of the two approaches as the Supreme Court has enunciated approach ‘A + B’ but has followed approach ‘A’. It is no consolation to say that the arbitral award was compliant with the FERA in this case.
In a post to follow, I will be analysing how the Delhi High Court has applied Renusagar and the other cases in the context of ‘public policy’ under section 48 of the Arbitration Act to justify a violation of the Foreign Exchange Management Act, 1999.
- Suprotik Das