Applicability of International Humanitarian Law (IHL) on cyber warfare

Apoorva Sharma, Institute Of Law, Nirma University, Ahmadabad

The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom
-John Locke

Jus in bello, conjointly called the International Humanitarian Law [IHL] ((See generally, The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force By Howard M. Hensel; The Law of Armed Conflict: International Humanitarian Law in War By Gary D. Solis; International law and armed conflict: exploring the faultlines: By Michael N. Schmitt, Jelena Pejic, Yoram Dinstein.; The conduct of hostilities under the law of international armed conflict By Yoram Dinstein; The contemporary law of armed conflict By Leslie Green; The law of war By Ingrid Detter Delupis, 2nd edn CUP 2000))is the section of law of nations, handling the protection of persons who are no longer collaborating within the hostilities which restricts the means and strategies of warfare. It includes written and customary law, because the latter has been crystallized throughout history ((ICRC has contributed with a recent customary IHL database published with the results of research on customary humanitarian law conducted in 2005, available at http://www.icrc.org/customary-ihl/.)).

International law is a body of rules and regulations governing the relation between states and International Humanitarian law is just a part of it, which applies only to armed conflict. During warfare and armed conflicts, the law that binds the countries is International Humanitarian law, which objectifies the existence of Humanity before brutal destructions.
It has its operation within these two ambits:

  • The protection of those who are not a part of the war; Civilians.
  • Restrictions on the means of warfare; in particular the weapons and the methods to be adopted during the warfare, that involves the military tactics.

International humanitarian law prohibits all means of warfare which

  • Causes injury, the consequences of which is unnecessary sufferings;
  • Causes severe and permanent damage to the environment.

This paper gives out the attainable application of the law of war in international cyber conflict, with the application of the final principles of Jus in bello in cyber-attacks. Since the law of war is applicable on all or any military operations then why should cyber warfare operation be an exception?

Can IHL be applied on cyber warfare?

International Humanitarian Law has banned the use of many weapons that includes exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines. An International Criminal Court (ICC), was created by the 1998 Rome Statute to try cases relating to IHL. 21st century encountered the emergence of new military warfare concepts, and Cyber warfare is one of them. Where under, Computer networks are used for cyber-attacks instead of conventional weapons; and satellites are used for providing images far more detailed than human spies and reconnaissance units have ever offered. Cyber warfare has been explained as any hostile measure taken against an enemy designed “to discover, destroy, disrupt, alter, or transfer data kept in a computer that is manipulated and transmitted through a computer network ((Legal Vacuum in Cyber Space, International Committee of the Red Cross, available at http://www.icrc.org/eng/resources/documents/interview/2011/cyber-warfare-interview-2011-08-16.htm, visited on 26 December 2012)).” Examples of hostile use includes computer attacks on air traffic control systems, on oil pipeline flow systems, controlling the activities of a particular network, edit or alter the crucial information in a network and nuclear plants. It is an attack based on networks which is adopted by many countries to reduce their frustration and also to avoid the real war situation.

Examples of Cyber attacks

Chinese attack on US and Google through Ghost net spyware network upon confidential information of more than 100 countries are few examples which acquaint us with the concepts of cyber warfare. The main issue is whether the basic principles of IHL that is military necessity, distinction and proportionality are flexible enough to accommodate 21st-century-evolvedmodern method of cyber warfare?

Contemporary armed conflicts is to be controlled through a body of law which have not yet become adaptable to contemporary legal and practical challenges, introduced by robots and robotic devices, which replaced foot soldiers, the deployment of drone instead of manned aircrafts, and by using computer networks for cyber-attacks rather than use of conventional weapons. Though one may argue that cyber warfare is not specifically a warfare technique, any illegal act done by anyone can be culminated using networks, which need not be delved into the warfare arena. Cyber operations are in fact used in crimes committed in everyday situations that have nothing to do with warfare. A large proportion of operations popularly termed as “cyber-attacks” are in fact network disruptive attacks carried out for gathering illicit information and it usually occurs outside the arena of armed conflicts. But in the situation of armed conflict, IHL is applicable when the parties resort to techniques of warfare based upon cyber operations.

Cordula Droege ((legal expert of International community for Red Cross(ICRC).)), explains that the existing legal framework is applicable and must be respected even in the cyber realm ((Coduladroega, ’’Elective affinities? Human rights and humanitarian law”, 30-09-2008 Article, International Review of the Red Cross, No. 871, published on 30-09-2008)). According to a study conducted by Mr. Anton Camen (Expert from International Committee of the Red Cross) surveyed the main areas in which new technologies challenges the existing principles of IHL: cyber-warfare, automated systems (robotics), and new kinetic weapon ((Anton canon, Anton’s weekly digest of International scholarship, Vol.3,Nos 21, published on 24 May 2012)). His conclusion was that the traditional principles of IHL are, as a rule is inductive. Thus, it is clear that the rules of IHL are flexible enough to make it applicable on cyber warfare . As it did not incorporate itself as pigeon hole ((Stasysjukna, The pigeonhole principles, Springer Berlin Heidelberg publication, ISBN; 978-3-642-17363-9))legislation but as an inductive piece which is flexible enough to accommodate changes as per changing circumstances. In fact it is the role of International committee for Red Cross (ICRC) to look upon the valid developments to be adopted into IHL. There are several examples where new developments were adopted. Few of them are:-

  • The Protocol about glary optical maser weapons, adopted at the capital of Austria Diplomatic Conference in Oct 1995, prohibits each the employment and transfer of optical maser weapons, one in every of whose specific combat functions is to cause permanent visual impairment.
  • Within the case of mines, the sphere of application of Protocol II to the 1980 Convention was extended by the adoption; in Geneva on three could 1996, of associate amended version of the Protocol on prohibitions on the employment of mines, booby traps and alternative devices. The Convention on the prohibition of the employment, reposition, production and transfer of anti-personnel mines and on their destruction, signed by 121 countries in Ottawa on 3-4 Gregorian calendar months 1997, entirely prohibits anti-personnel mines issues.

Even though IHL doesn’t specifically mention cyber warfare, the Martens clause ((Rupert Ticehurst, The martens clause and the armed conflict, International review of the red cross, published on 30-04-1997)), that is associated with accepted principle in IHL, says that, “whenever a state of affairs isn’t coated by a global agreement, “civilians and combatants stay below the protection and authority of the principles of jurisprudence derived from established custom, from the principles of humanity, and from the dictates of public conscience ((ibid)).” New technologies of all types area unit being developed all the time and IHL is sufficiently broad to accommodate these developments. IHL limits the employment of sure weapons specifically (for instance, chemical or biological weapons, or anti-personnel mines). However it additionally regulates, through its general rules, all means that and strategies of warfare, as well as the employment of all weapons. specifically, Article 36 of I protocol to the Geneva Conventions provides that, In the study, development, acquisition or adoption of a brand new weapon, means that or methodology of warfare, a High getting Party is below associate obligation to see whether or not its employment would, in some or all circumstances, be prohibited by this Protocol or by the other rule of jurisprudence applicable to the High Contracting Party ((Article 61, International Humanitarian Law – Treaties & Documents, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), available at http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=470&t=art, visited on 28th December 2012)),” on the far side the precise obligation it imposes on States parties, this rule shows that general IHL rules apply to new technology.

PROBLEMS ASSOCIATED WITH CYBER WARFARE IN APPLICATION OF IHL

Generalisation of the objective of the attack

The basic rule of the law of war (IHL) is enshrined in Additional Protocol I article 48, according which,

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

This is the area of concern when it comes about cyber warfare, as it generalises the target or target of attack. As per IHL rules some principles ought to be followed just in case of a warfare. It may be a general rule that attacks ought to be used just for weakening the enemy or military forces and not for inflicting hurt to any civilian. So it states that civilians ought to be protected and separated from military networks and warfare arena. This can be referred to as the principle of ‘Distinction ((Jean- marieHenkaerts& Louise doswald-beck, principle of distinction, principle difference between civilian object and military object, section A, practice relating to Rule 7, Customary International Humanitarian Law, volume 1)).’ The principle of distinction states that parties to a conflict distinguish the least bit times between civilians and combatants and between civilian objects and military objects. Attacks could solely be directed against combatants or military objectives. Indiscriminate attacks, that are attacks that cannot be directed at a selected military objective or whose effects cannot be restricted as needed by IHL, are prohibited ((Article 48, Additional protocol I)). Similarly, attacks against military objectives or combatants are prohibited if they will be expected to cause incidental civilian casualties or harm which might be excessive in regard to the concrete and direct military advantage anticipated (so-called disproportionate attacks). Cyber-attacks have eliminated the boundaries between civilians and military. Cyber operations will raise humanitarian issues, specifically once their result is not restricted to the information of the targeted system or PC. Indeed, they are typically supposed to own an impact within the “real world.”

For example, by change of state with the supporting PC systems, one will manipulate associate enemy’s traffic management systems, pipeline flow systems or nuclear plants. The potential humanitarian impact of some cyber operations is so monumental. Cyber operations that are distributed to date, as an example in Republic of Estonia, Georgia and Asian nation, cannot seem to own had serious consequences for the civilian population.

In 2007 the Government of Estonia, the ‘most wired country in Europe’ ((Also known as E-Stonia, as the Parliament has declared internet access to be a basic human right. 95% of daily transactions are conducted online, with state services being offered such as eBusiness, eState, ePolice, eBanking and even eVoting.))decides to relocate a disputable Soviet War memorial ((For more on the so-called Bronze Soldier, and the tempestuous events that came to be known as the Bronze Night, see further e.g. A Sinisalu, ‘Propaganda, Information War and the Estonian-Russian Treaty Relations: Some Aspects of International Law’, 2008 XV Juridica International, 154-162, available at http://www.juridicainternational.eu/index.php?id=12741))off from the Tall in centre. The very next day and over the course of the subsequent 3 weeks, devastating cyber attacks, hosted by Russian state laptop servers, target and cripple parliament and ministries’ websites, government communications, on-line banking systems and websites of leading news organizations. The events lead to talks concerning ‘Web War I’ ((http://www.defensenews.com/story.php?i=4699902))and in NATO establishing a Tallinn-based Cooperative Cyber Defence Centre of Excellence the following year.

However, it appears that it is technically possible to interfere with airfield management systems, alternative transportation systems, dams or atomic power plants via cyber area. Probably ruinous eventualities, like collisions between craft, the discharge of poisons from chemical plants, or the disruption of significant infrastructure and services like electricity or water networks, so cannot be pink-slipped. The most victims of such operations would possibly be civilians. It is actually attainable that cyber operations may have fatal consequences for civilians. This suggests that, in coming up with and winding up cyber operations, the sole targets permissible below IHL is military objectives, like PC or computer systems employed in support of military infrastructure or of infrastructure used specifically for military functions. It follows that attacks via cyber area might not be directed against, as an example, PC systems employed in medical facilities, schools, and alternative strictly civilian installations. The problem of humanitarian concern during this respect is that cyber area is characterised by interconnectivity. It consists of innumerable interconnected PC systems across the planet. Military PC systems seem to usually be interconnected with industrial, civilian systems and to accept them in whole or partially. Thus, it would preferably be not possible to launch a cyber-attack only on military infrastructure and limit the consequences to only on to that of military objective. For example, the employment of a worm that replicates itself and cannot be controlled, and may so cause goodly harm to civilian infrastructure, would be a violation of IHL. All IHL rules governing the conduct of hostilities area unit probably applicable throughout armed conflict; however whether or not they are relevant in such a context, and the way they might be applied in are real issues.

The principle of military necessity presents a less thorny issue. Simply stated, the intended target must have military value and receive only enough force to ensure its destruction. From a targeting standpoint, the information warrior like any other military commander can easily avoid war crimes charges if he or she refrains from choosing purely civilian objectives: Stock exchanges, banking systems, universities, and similar civilian infrastructures may not be attacked simply because a belligerent has the ability to do so ((SW Brenner, MD Goodman, ‘In Defense of Cyberterrorism: An Argument for Anticipating Cyber- Attacks, Journal of Law, Technology & Policy, Vol. 2002, Issue 1 (Spring 2002)’, pp. 1-58, at 14)).’

The Additional Protocol I of the 1949 Geneva Conventions ((Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977))provides in article 43 that the armed forces consists of all organised armed forces, which is under a control responsible to that party for the conduct of its subordinate. However, if one turns to states’ observe on a world level, it’ll be evident that cyber forces, commencing to represent a separate branch of each technologically advanced state’s army, has set the instance with the recent inauguration of people Cyber Command (USCYBERCOM) as Associate in Nursing militia sub-unified command, subordinate to the Department of Defence, followed by Great Britain, that launched a Cyber Security Operations Centre ((http://www.cabinetoffice.gov.uk/media/216620/css0906.pdf see also http://news.bbc.co.uk/2/hi/uk_news/politics/8118348.stm see also http://news.bbc.co.uk/2/hi/uk_news/politics/8573152.stm))in check of the cupboard workplace. Thus, if taken without any consideration that a cyber-force will represent a part of a state’s militia, it is terribly straightforward for cyber-attacks to fall among the legal scope. As for cyber-attacks area unit perpetrated by hackers, United Nations agency may be thought of as ‘mercenaries’, forward that a state hires them towage targeted cyber-attacks.

What ought to be done

The party answerable for associate attack should take measures, to the most extent possible, to avoid or minimize incidental harm to civilian infrastructure or hurt to civilians. It can be required to validate the character of the systems the area unit of which being attacked and also the attainable harm which may prove from associate attack. It additionally means once it becomes apparent that associate attack can cause excessive incidental civilian harm or casualties, it should be turned off.

Also, parties to conflicts have associate obligation to require necessary precautions against the consequences of attacks. It might so be wise for them, so as to guard the civilian population against incidental effects of attacks, to assess whether or not military PC systems area unit sufficiently break free civilian ones. The reliance of military PC systems and connections on civilian systems contractors that are used for civilian functions may well be a cause for concern.

On the opposite hand, analysis and development ought to be promoted for development of such technology that may facilitate in edging out violation of IHL by exempting civilians in an exceedingly cyber warfare. Hackers ought to be appointed to an excellent extent to avoid such things and to guard civilians. Information technology may additionally serve to limit incidental harm to civilians or civilian infrastructure. For example, it would be less damaging to disrupt the services used for military and civilian functions than to destroy infrastructure utterly. In such cases, the principle of precaution arguably imposes associate obligation on States to decide on the less harmful means that to attain their military aim.

STATE ATTRIBUTABILITY

Another issue that emerges is building upon the identity of a cyber-attack to a particular state. It’s extremely unlikely that inter state cyber-attacks will be perpetrated by the heads-of-state themselves, on condition that a high degree of experience in computer technology is required. So, since a bunch of hackers are going to be the one ‘hired’ by a government to wage the attack, however can the group’s actions be attributed to the particular state? ((International legal literature has not addressed yet effectively the subject. See Shackelford nuclear 233. Dinstein in MN Schmitt, Computer Network Attack and the Use of Force in International Law :Thoughts on Normative Framework – [s.l.] : US Air Force Academy, 1999, at 103; Barkhamsupra note 18, at 97; Graham 92 and 95. also Todd, but dealing mainly with cyber espionage))Allegedly, it’s notably tough not solely to prove that a cyber attack has taken place but conjointly to trace the culprit of associate degree attack, including seeking out the specified nexus between the hacker and therefore the accountable state so as to attribute the acts to the actual state.

In reality, however, if a black hat hacker with malicious intentions is knowledgeable in camouflaging, or maybe in fully concealing the traces that may result in him, there is another hacker, a white hat hacker, equally knowledgeable in tracing him. For the needs of this study, it will be taken with a pinch of salt that the hackers will so be geographically copied, in order to proceed to a legal analysis of however their actions will be attributed to the responsible state ((Eg, Adkins 16 describes a ‘law enforcement diagnostic tool’, the ‘Carnivore’, used by the FBI to locate and identify hackers who ‘weave and loop’ through various computers in order to hide their actual location)). Further to the present, notwithstanding the attack is geographically copied, the scope of state attribution of the acts of a bunch of hackers stumbles upon the contentious issue of behaviour in the Net ((For an analysis on territoriality and jurisdiction in cyberspace, see Van de Bogart)). Retired General Michael Hayden, former director of the U.S. National Security Agency recently declared in associate degree completely flamboyant manner that one answer being discussed in government is to easily ignore (trying associate degree attempting) to work out if the supply of an attack is state-sponsored and hold nations to blame for malicious activity coming back from their Net ((‘Former NSA Director: Countries Spewing Cyber attacks Should Be Held Responsible’, July 29, 2010, available at wired.com, an online periodical on technology issues, http://www.wired.com/threatlevel/2010/07/hayden-at-blackhat)).

In the heart of the jurisprudence of state responsibility lay the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, statute by the International Law Commission ((Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II (Part II), Reproduced in the annex to General Assembly Resolution 56/83 of 12December 2001, and corrected by document A/56/49 (Vol. I)/Corr.4)). Chapter II of the Draft Articles posits that attribution of a conduct to a state is effectuated during a embarrassment of ways: entomb alia, through the conduct of the De facto or De jure organs of a state ((Article 4))[even in instances wherever they exceed their authority or contravene their instructions ((Article 7)), through the conduct of persons or entities travail elements of governmental authority ((Article 5)), and through the conduct of someone or cluster of persons acting below the directions of or below the directions or management of that State ((Article 8)). The half of the latter type of ‘immutability’ is that the most arguable one. The degree of management that should be exercised by the state so as for the conduct to be attributable to it had been a key issue in different cases of the international jurisprudence ((Case Concerning Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), 1984, ICJ Reports 392 June 27, 1986; Prosecutor v. DuškoTadić aka Dule, Sentencing Judgement, Case No. IT-94-1-T, ICTY, 14 July 2007; Case Concerning the Application of theConvention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.Serbia and Montenegro), ICJ General List No. 91, Judgment of February 26, 2007)). If a future cyber-attack is so waged by a bunch of hackers acting below the instructions, directions or management of a state, a specific issue can arise if the mutually contradictory dicta by the 2 world organisation tribunals square measure taken into thought.

The International Court of Justice dominated within the landmark 2007 Nicaragua Case that associate degree “Effective control” check is required for the state attribution to be achieved, whereas the International Criminal assembly for the previous Yugoslavia ((International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991))set within the famed Tadić Case that a looser, “overall control” check is satisfactory enough. The latter was harshly criticised by the ICJ in its landmark 2007 putting to death the Case as being unconvincing and unsuitable, because it ‘has the most important downside of broadening the scope of State responsibility well on the far side the elemental principle governing the law of international responsibility’. Thus, within the case that a future controversial cyber-attack is submitted to the International Court of Justice, it remains to be seen whether or not the standards used are tight or not and whether or not international responsibility of the perpetrator state are effectively engaged. Praiseworthy is additionally the proposal by Shackelford, UN agency moves even any and suggests that ‘using the putting to death Convention is a vehicle to carry responsible culprit nations that have putting to death as results of an enormous and deadly state-sponsored information warfare campaign.’

CONCLUSION

Thus we are able to conclude that the absence in IHL of specific references to cyber operations doesn’t mean that such operations cannot be subject to the foundations of IHL. If it means that and strategies of cyber warfare manufacture identical effects within the world as standard weapons (such as destruction, disruption, damage, injury or death), they are ruled by identical rules as standard weapons. Since the foundations of IHL area unit versatile enough to adopt the new technologies so the problems connected in cyber warfare may be eliminated by countering the new technologies with another technology. The technological limitations may be crossed through another technologies just for that analysis and development ought to be promoted and additionally ability of rising space is that the would like of the hour. Cyber-warfare may be a real and gift threat to world security. If world leaders decide that a global written agreement on cyber-warfare may be a productive step for guaranteeing peace between nations, then they’ll have to be compelled to notice compromises on variety of key problems. The first problems are those of enforceability, responsibility, privacy, and skill to tell apart between nation-states and criminals.

This could be achieved by making a cyber “license”, Just like a license is required to drive; a cyber “license” can permit a personal access to the data. Those obeying web and Net laws are left alone, whereas people or organizations that interact in ill-gotten behaviours are corrected or punished more severely ((Sharp Sr., “The Past, Present, and Future of Cybersecurity.”)). This idea aligns with the principles of the National Strategy for Trusted Identity in Cyberspace (NS-TIC). TNS-TIC may be a government-sponsored, non-public sector initiative that may give incentives for web users to buy a cyber “license” so as to access sure components of the net, like on-line bank accounts, social networking sites, and government ((National Strategy for Trusted Identities in Cyberspace.”The White House. April 2011)). Whereas a global written agreement together with technical and regulative advances has the potential to limit cyber-warfare, this approach features a range of limitations that ought to be the topic of more analysis. The first concern is that the ability to force countries to stick to the written agreement. European enforcement officers requested that Russia permit them to look for the supply of the attacks, citing a global law that Russia had sanctioned requiring that action. Russia refused and neither the supply nor the extent of state involvement of the attacks may well be evidenced.

Enforcement of Foreign Arbitration Awards in India, Malaysia and Indonesia

Risha Sharma, Research Associate

What is arbitration? Black’s Law Dictionary defines arbitration as ‘a method of dispute resolution involving one or more neutral third parties, who are agreed to by the disputing parties and whose decision is binding’. It has been recognised as an effective form of dispute resolution mechanism. It primarily consists of dispute resolution processes and techniques which enable the disagreeing parties to come to an agreement without resorting to litigation. The parties normally resolve their disputes with or without the aid of a third party. It entails the submission of disputes to an independent authority by whose decision the parties generally abide. In today’s world of shrinking boundaries, free trade and international commerce have become global necessities. Increasing competitiveness often leads to conflicts between entrepreneurs, resulting in commercial disputes. Arbitration is chosen as a means of effective consensual and speedy dispute resolution ((Suri Preeti, Enforcement of foreign awards in India: Simplification under the 1996 Act, at www.psalegal.com, on p. 1 as seen on July 14, 2013 at 23.07)). When a dispute arises between two parties, they mutually refer the dispute to a third impartial authority which is also referred to as the arbitral tribunal and the decision undertaken by the said authority is called the arbitral award. These awards are not always binding in nature. A jurisdiction’s credibility as an arbitration friendly one rests primarily on the efficiency and the efficacy of its award enforcement regime ((Kachwaha Sumeet, Enforcement Of Arbitration Awards In India, at www.kaplegal.com on p. 1 as seen on July 15, 2013, at 00.27)).

ENFORCEMENT REGIME IN INDIA:

‘Foreign arbitration’ is an award or arbitration conducted in a place outside India. The resultant award is an award, if sought to be enforced in India, constitutes a foreign award. It was realised that the economic reforms may not become fully effective as long as the law dealing with enforcement of both domestic and international commercial disputes remains out of touch with these reforms. In India, foreign arbitral awards can be enforced under the international conventions of Geneva Convention of 1927 and the New York Convention of 1958, both of which India is a signatory of.  Prior to January 1996, the law of enforcement of arbitration awards in India was spread between three enactments: enforcement of domestic awards was dealt with under a 1940 Act, enforcement of foreign awards was divided between two statutes — a 1937 Act to give effect to the Geneva Convention awards and a 1961 Act to give effect to the New York Convention awards.  It was established that the awards have to be made in the country which has ratified the respective convention. The Geneva Convention is virtually non-applicable due to Article VII of the New York Convention which states that the Geneva Convention ceases to have effect when the latter comes into play. Hence for all practical purposes, enforcement of arbitral awards in India came to be governed by New York Convention and the Act of 1940 for international and domestic awards respectively. The 1961 Act confined challenge to an arbitral award only on the limited grounds permitted under the New York Convention.

In January 1996, India enacted a new Arbitration Act which repealed all the three previous statutes (the 1937 Act, the 1961 Act and the 1940 Act). The new Act is divided in two parts. Part I provides for any arbitration conducted in India and enforcement of awards therein. Part II provides for enforcement of foreign awards. Any arbitration conducted in India or enforcement of award therein (whether domestic or international) is governed by Part I, while enforcement of any foreign award to which the New York Convention or the Geneva Convention applies, is governed by Part II of the Act.  Previously, the Supreme Court had held in Bhatia International v. Bulk Trading S.A. and and Venture Global Engineering v Satyam Computer Services Limited that provisions of Part I would apply to international commercial arbitration as well unless the parties have excluded the applicability of Part I. As a result, Indian courts were empowered to set aside foreign awards using section 34 of the 1996 Act. This decision was criticised for ignoring the wordings of the statute. Recently, in Bharat Aluminium Co. v Kaiser Aluminium Technical Services the Court overruled Bhatia’s case and held that such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996 and that there can be no intermingling between the two parts of the Act as per the New York Convention and the UNCITRAL model. This decision lays to rest the long drawn debate of India not being an arbitration friendly jurisdiction.

ENFORCEMENT REGIME IN MALAYSIA:

In Malaysia, the Arbitration Act of 2005 was enacted to regulate all aspects related to arbitration to ensure synchronisation between Malaysian arbitration and the UNCITRAL model of International Commercial Arbitration.  Malaysia is also a signatory ((http://www.newyorkconvention.org/contracting-states/list-of-contracting-states))to the New York Convention of enforcement of Arbitral Awards. It is a mandated rule that the venue of arbitration is the country that has adopted the New York Convention. The Malaysian legal system is based upon the English common law system which Malaysia inherited from the British colonial rulers ((http://jurist.law.pitt.edu/world/malaysia.htm)). The Arbitration Act, 2005 is modeled on the basis of the New Zealand Arbitration Act, 1996 and the UNCITRAL Model of International Commercial Arbitration ((supranote1)). A clear distinction was brought between domestic arbitration and international arbitration. In case of international arbitration, when the seat of arbitration is in Malaysia, the court’s intervention under Part III of the Arbitration Act (which is the Part regulating Judicial Intervention during arbitral proceedings) is non- mandatory ((Section 3(3) of the Arbitration Act, 2005))unless the parties mutually decide to ‘opt in’, that is, the parties mutually decide the application of Part III with respect to arbitral proceedings ((Section 3(4)of the Arbitration Act, 2005)). The distinction brought forth between the domestic arbitration and international arbitration aims to put a restriction on judicial control over the arbitral proceedings depending upon the kind of arbitration. Court’s intervention is limited to instances mentioned in the Act and the courts are not allowed to intervene in the arbitral proceedings using inherent jurisdiction of the court ((Section 8 of the Arbitration Act, 2005)). Part III restricts the intervention of the court to the following instances:

  • Determination of any preliminary points of law by any party with consent of the arbitral tribunal or with consent of other parties ((Section 41 of the Arbitration Act, 2005)).
  • Reference of question of law arising out of the arbitral award ((Section 42 of the Arbitration Act, 2005)).

The changes in the arbitration law to be at par with the UNCITRAL Model of International Commercial Arbitration and the pro-arbitration judicial decisions by the Courts adhering to the doctrine of minimal judicial intervention in arbitration ((http://www.baliraif2012.com/assets/pdf/session1/SundraRajoo_NATIONALCOURTSANDINTERACTIONWITHARBITRAL%20TRIBUNALS.pdf pages 5-8;))along with the fact that it being a common law country and being a signatory of the New York Convention on enforceability of foreign award has made Malaysia an ideal spot for arbitration.

ENFORCEMENT REGIME IN INDONESIA:

Arbitration in Indonesia is governed by the Arbitration and Dispute Resolution Act, 1999. Indonesia is a signatory to the New York Convention of Enforcement of Foreign Awards ((http://www.newyorkconvention.org/contracting-states/list-of-contracting-states)). The Arbitration and Dispute Resolution Act, 1999 does not follow the UNCITRAL Model of International Commercial Arbitration. The Indonesian legal system is a civil law system based on the Roman-Dutch model and influenced by customary law ((https://www.cia.gov/library/publications/the-world-factbook/geos/id.html)). The Roman-Dutch model of civil law system was inherited by Indonesia due to the Dutch Colonial Rulers. The Indonesian law takes territorial approach to bring a distinction between domestic and international arbitration. Article 1(9) of the Arbitration Law makes it clear that all arbitrations held within Indonesia are considered ‘domestic’ and all those held outside Indonesia are characterised as ‘international’ arbitrations, regardless of the nationality of the parties, location of the subject of the dispute, and governing law. Thus if the seat of arbitration is Indonesia, then it will be considered as a domestic arbitration irrespective of a foreign party to the arbitration proceeding. The enforcement of the award whether domestic or international, may be refused by the Court on the following grounds ((Article 62 and Arbitration Guide, IBA Arbitration Committee, Indonesia, April 2013, pg 21: www.ibanet.org/Document/Default.aspx?DocumentUid=06406456-22F4-4035-BF04-75B85A5E903F)):

  1. Arbitration agreement no valid
  2. Subject matter not arbitrable under Article 5 of the Act
  3. Against public morality and order.

International arbitral awards will only be recognized and enforced by the Indonesian courts if the following conditions are met ((Article 66)):

  1. The award is rendered in a country which has signed a bilateral or multilateral treaty on the recognition and enforcement of International Arbitration Awards with the Republic of Indonesia.
  2. The award falls within the scope of commercial law.
  3. The award is not against public morality and order.

International awards must be registered with the District Court of Central Jakarta ((Article 65 and 67)). There is no time limit for registration of international awards. There is no time limit for registering of the international arbitral award. The application for enforcement should be accompanied with ((Article 67)):

  1. the original Award, or a copy authenticated in accordance with the provisions on authentication of foreign documents, along with an official translation of the award in Indonesian
  2. the original Arbitration Agreement, or a copy authenticated in accordance with the provisions on authentication of foreign documents, along with an official translation of the award in Indonesian
  3. a certification from the diplomatic representative of the Republic of Indonesia in the country in which the International Arbitration Award was rendered stating that such country and the Republic of Indonesia are both bound by a bilateral or multilateral treaty on the recognition and implementation of International Arbitration Awards.

An order of Exequatur from the Chief Judge of the District Court of Central Jakarta needs to be obtained for the enforcement of the award. If the respondent stays in any other court’s jurisdiction other than the District Court of the Central Jakarta, the exequatur order will be send to that court for execution ((Article 69)). Indonesia can be made a seat of arbitration since the Court’s intervention is a bare minimum and even though the Arbitration and Dispute Resolution Act, 1999 is not based on the UNCITRAL Model on International Commercial Arbitration, almost all principles of the same is incorporated in the Arbitration and Dispute Resolution Act, 1999.

Enforceability of Foreign Arbitral Award in Indian Regime

An Analytical Approach towards the Scheme

Author: Pankaj Sevta, Research Associate

A foreign award can be enforced in India under the multilateral international conventions to which India is a party, namely, the Geneva Convention of 1927 ((See Jane L. Volz& Robert S. Haydock, Foreign Arbitral Awards: Enforcing the Award against the Recalcitrant Loser 21 Wm. Mitchell L. Rev. 867 (1995-1996).))or the New York Convention of 1958 ((See Susan Choi, Judicial Enforcement of Arbitration Awards under the ICSID and New York Conventions  28 N.Y.U. J. Int’l L. & Pol. 175 (1995-1996).)), if the said convention applies to the relevant arbitration. The foreign award must have been made in a country which has ratified the Geneva Convention of 1927 or the New York Convention of 1958.

India has enacted legislation earlier to implement the two conventions. The Arbitration (Protocol and Convention) Act, 1937 for the enforcement of foreign arbitral awards to which the Geneva Convention of 1927 applied. Similarly, the Foreign Awards (Recognition and Enforcement) Act, 1961 was enacted pursuant to the New York Convention of 1958 and it prescribes the law and procedure for the enforcement of foreign awards in India, to which the said Convention applied ((See S. WardAtterbury, Enforcement of A-National Arbitral Awards under the New York Convention of 1958 32 Va. J. Int’l L. 471 (1991-1992).)).

The 1996 Act has repealed both the above said acts. Part II of the 1996 Act, however, re-enacts the operative portions of both these repealed enactments. The three schedules of to the 1996 Act, also reproduces the provisions of the New York Convention (Schedule I) ((See Robert A. J. Barry, Application of the Public Policy Exception to the Enforcement of Foreign Arbitral Awards under the New York Convention: A Modest Proposal 51 Temp. L.Q. 832 (1978).)), Geneva Protocol (Schedule II) and Geneva Convention in (Schedule III) ((SeeG. K. Kwatra, Arbitration and Alternative Dispute Resolution 108 (2008).)).  In other words India continues to be a party to three important international instruments on the recognition and enforcement of foreign awards. A material change has been made in 1996 Act ,in as much as sub section  (b) of Section 9 in the 1937 as well as 1961 Act, which provided that those acts shall apply to any award made on arbitration agreement governed by the law of India, has been omitted in part II. Therefore, any award given outside in India will be treated as foreign award. To such foreign award if the same be a convention award, the provisions of part II and not the provision of part I of 1996 Act will apply ((Ibid. 20)).

ENFORCEMENT OF AWARDS TO WHICH THE CONVENTIONS DO NOT APPLY

Foreign awards which are made in countries which are not parties to either the Geneva Convention or the New York convention cannot be enforced with the same facilities as in the case of foreign awards to which conventions apply. Such foreign awards are enforceable in India on the same ground and in the same circumstances in which they are enforceable under the general law on grounds of justice, equity and good conscious. They can be enforced by an action brought before court of law. A foreign award will not be imposed in India if its enforcement would be contrary to the public policy or laws of India. There is not so much case laws on the circumstances in which a foreign award can be challenged. There are few cases in which a foreign award has been denied recognition or enforcement on ground of public policy. A foreign award will deemed to be against the laws of India if it violates, for instance, the provisions relating to exchange control, import export control or similar mandatory provisions ((Ibid  ¶ 27)).

FOREIGN AWARD IS FINAL ON MERITS

It is noteworthy that Section 46 of the 1996 Act provides that any foreign award which would be enforceable under the Chapter shall be treated as binding for all purpose on the persons as between whom it is made. A foreign award cannot be challenged on merits, being final, conclusive and binding for all purposes, except the circumstances set out in section 48 in which the enforcement of the award will be refused ((See Kwatra, supra note 5¶ 20)). Domestic courts cannot set aside or annul a foreign award. The scope of the court’s jurisdiction is restricted to a decision on whether the award is enforceable ((See Ludwing Wunscha & Co. v. Raunaq International, AIR 1983 Del 247)).

ENFORCEMENT OF FOREIGN AWARD AND PLACE OF FILING

In Tata International v. Trisuns Chemical ((2002 (2) Bom CR 88)), the court held that in the context of Section 47 or the Arbitration and Conciliation Act, 1996 that a petition for the enforcement of a foreign award can be filed in any part of the country where a party answerable in the claim of arbitration may have money or where a suit for recovery can be filed ((Ashwinie Kumar Bansal, Arbitration Agreements and Awards 89 (2006).)). The learned Single Judge, relying upon a decision of the Supreme Court in Brace Transport Corporation of Monrovia Bermuda v. Orient Middle East Lines Ltd, Saudi Arabia ((AIR 1994 SC 1715)), held that the subject matter of the award and the subject matter of an arbitration agreement are two different and distinct expressions. “In respect of a foreign award, if the expression subject matter of the award was to mean the same thing as the subject matter of the arbitration agreement, in most cases there would be no Court available where the award could be enforced as the entire cause of action in respect of the subject matter of the arbitration could be the foreign country. Merely because in the instant case, the contract was entered into in India cannot result in a different interpretation. The expression as the explanation itself permits forum hunting if that expression can be used. After considering all these provisions a similar view was taken in Arbitration Petition Lodg. No. 427 of 2001 in the case of Naval Gent Marline Ltd. v. Shivnath Rai Harnarain (I) Ltd. and Ors., decided on 5th July, 2001 in which at the ad interim stage, apart from other issues, the issue as to the meaning of the expression “subject matter of the award” was in issue and has been similarly answered.”

ENFORCEMENT OF FOREIGN AWARD AND PUBLIC POLICY OF INDIA: THE RELATIONSHIP

One of the circumstances in which enforcement of the award may be refused is that it is contrary to the public policy of India. The explanation to section 48 of the 1996 Act also provides that an award would be deemed to be in conflict with the public policy of India. If the making of the award was induced or affected by fraud or corruption, Indian courts have been called upon to interpret directly the extent and content of public policy in India. The content of “public policy” as used in the 1996 Act as a legal standard has been set by the Supreme Court of India in ‘RenuSagar Power Corp. vs. General Electric Co ((AIR 1994 SC 860: CLA Suppl 1(SC).)). According to the verdict of SC in RenuSagar’s case, there are three patterns of the operations of the doctrine of “Public Policy” in the field of recognition and enforcement of foreign arbitral awards. First, an Indian court will refuse, on grounds of public policy, to recognize and enforce an foreign arbitral award if such enforcement is contrary to “fundamental policy of Indian law”, that is to say, if the foreign award involves a violation of the Indian laws or more noncompliance with a court’s orders. However, the bar of limitation will not operate as a bar of public policy.

There is a second pattern of public policy in vocation. A court will refuse, on grounds of public policy to recognize and enforce an foreign arbitral award if such enforcement is detrimental to the “interest of India”. The words “Interest of India” are of general import and the court has not clearly spelt them out. It is evident, however, that whatever is detrimental to the national interest or may lower the image of the country cannot be required to be enforced by a court. In C.O.S.I Inc. v. Steel Authority of India ((AIR 1996 Del 8)), the Delhi high court  refuse to enforce an award on the ground that the govt. of India had to ban the export shipments of coils with immediate effect because of the acute shortage of HR coils existing in the country at the relevant time ((See Kwatra, supra note 5¶ 24)). The third pattern of the operation of public policy is that in which the enforcement of foreign award would be contrary to justice or morality.

CONCLUSION

It can be observed that a foreign award will not be imposed in India if its enforcement would be contrary to the public policy or laws of India. There are not so much case laws on the circumstances in which a foreign award can be challenged. There are few cases in which a foreign award has been denied recognition or enforcement on ground of public policy. Apart from that, three respective schedules of the 1996 Act reproduces the provisions of the New York Convention (Schedule I), Geneva Protocol (Schedule II) and Geneva Convention in (Schedule III) and thereby can be inferred that India continues to be a party to three significant international instruments on the recognition and enforcement of foreign awards. It can be analyzed that The Indian Arbitration and Conciliation Act of 1996 is certainly an opportune and creditable endeavor to consolidate and amend the Indian law on arbitration and enforcement of foreign awards in tune with the global developments. By going through the examination sketch, the Act has attempted to combine itself with parameters like domestic arbitration, domestic conciliation, international commercial arbitration etc. Provisions like section 46 and section 47 provide more light on the existing scheme of enforcement of foreign award in the instant scenario. It can also be concluded in relation to domestic award and foreign award that grounds on which a domestic or foreign award can be challenged are identical and the act provides an effective remedy to a person aggrieved by a foreign award.