Due Process: Barrier Or Bridge? Post-Vijay Karia Shifts In Section 48(1)(B) Enforcement And Global Benchmarks

I. Introduction

Enforcing foreign arbitral awards in India is governed by Part II of the Arbitration and Conciliation Act, 1996 (Arbitration Act), which incorporates the pro-enforcement bias of the New York Convention. Under this framework, Indian Courts will enforce a foreign award unless the resisting party proves the existence of a limited ground for refusal under Section 48. One such ground – the focus of this article – is contained in Section 48(1)(b) of the Arbitration Act, which allows refusal if “the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case.” This provision encapsulates the due process and natural justice requirement in international arbitration.

This article examines how Section 48(1)(b) has been interpreted and applied in India, especially after the landmark Judgement of Vijay Karia and Ors. vs. Prysmian Cavi E Sistemi Srl and Ors¹(“Vijay Karia”) by the Supreme Court of India. We will review key High Court decisions from 2020–2025 that have applied this test and assess whether Indian Courts have maintained a pro-enforcement stance in line with international practice. A comparative overview of how UK, Singapore, and Hong Kong Courts address the same due process exception will also be provided. Finally, the article offers an analytical discussion of the grounds on which Indian Courts have refused or allowed enforcement under Section 48(1)(b), along with practical recommendations grounded in foreign best practices to ensure that India's approach remains both effective and arbitration friendly.

II. Understanding Section 48(1)(b): Due Process Ground for Refusal

Section 48(1)(b) essentially safeguards the due process rights of the award-debtor. It prevents enforcement if the core requirements of natural justice in the arbitral proceedings were violated – namely, adequate notice and a fair opportunity to present one's case. In other words, this ground addresses situations where the arbitral procedure was fundamentally unfair to a party, such as proceedings conducted ex parte without proper notice, or a party being denied a hearing or the chance to submit evidence.

Importantly, Indian Courts (following the Convention's ethos) have emphasized that Section 48(1)(b) must be construed narrowly, to avoid it becoming a broad escape route for award-debtors. The Supreme Court has clarified that the expression “otherwise unable to present his case” in Section 48(1)(b) “cannot be given an expansive meaning” and must be read in context of the preceding words . This means a party resisting enforcement must show a serious procedural denial – a breach of natural justice so significant that it effectively deprived the party of a fair hearing. Minor irregularities or mere dissatisfaction with the arbitral process do not suffice. For instance, if an arbitrator does not accept a party's legal arguments or evidence on the merits, that alone does not mean the party was unable to present its case. The focus is on whether the party had the opportunity to participate and be heard, not on whether the tribunal's decisions were favourable or correct.

III. Post-2020 High Court Trends: Applying the Vijay Karia Test

Ever since the narrow ruling by the Supreme Court in Vijay Karia, Indian High Courts have exhibited a chronic pro-enforcement orientation in the interpretation of Section 48(1)(b) of the Arbitration Act. This provision, which punishes the party with refusal of enforcement if the party was "unable to present his case," is interpreted narrowly. High Courts largely confirmed foreign awards in instances where the objecting party did receive the opportunity to appear and didn't use the opportunity effectively.

1. Enforcement Despite Procedural Objections

In Nine Rivers Capital Limited vs. Gokul Patnaik and Ors², the Delhi High Court rejected the contention that the award was violative of principles of natural justice. The award-debtor contended that the Tribunal deprived him of the opportunity to fully present his case by refusing him to amend his statement of defence on the grounds of delay. However, the Court was of the view that the award-debtor was afforded an opportunity to rebut. Citing Vijay Karia, the Court held that Section 48(1)(b) is not designed to protect against the weakness of a party's own strategic failure to prove the case and must be due to an act beyond its control. The Court did not detect any denial of natural justice and enforced the award.

In St Frosso Shipping Corporation vs. Eastern Multitrans Logistics Pvt Ltd³, the Telangana High Court enforced an award wherein the respondent had claimed that it was never aware of the proceedings. The Court was convinced without any doubt that the respondent was apprised through email and through its brokers of every one of the orders and the notices and merely disregarded them. The Court characterized this as a "stubborn refusal" to interact and held that it did not constitute an inability to conduct one's case under Section 48(1)(b).

Similarly, in Scan-Shipping Pte. Ltd. vs. Anupam Port Cranes Corporation Limited⁴, the Gujarat High Court enforced an award in which the respondent was a party at the initial levels but later did not make available its witness for cross-examination. The Court noted that the arbitral tribunal granted fair hearing chances, which the respondent didn't sufficiently utilize. This was not deemed a sufficiently valid reason to deny enforcement.

2. Refusal of Enforcement by Reason of Concealment

In Aapico Hitech Public Company Limited and Ors. vs. Sakthi Auto Component Ltd⁵, the Court refused to enforce the foreign award because the beneficiary of the award had withheld crucial documents. They were crucial for the respondent's counterclaim but were knowingly withheld in disregard for a procedural order for production made by the tribunal. The Court felt that this failure to disclose deprived the respondent of the opportunity effectively to plead his case and was a denial of natural justice. Relying upon Vijay Karia principles, the Court was of the view that a party which disregards the procedural order for production of documents must take the consequences, and this failure was a serious procedural defect for which the award could not be enforced.

IV. Comparative Perspectives: UK, Singapore, and Hong Kong on the Due Process Exception

India's narrow interpretation of Section 48(1)(b) aligns closely with other leading jurisdictions under Article V(1)(b) of the New York Convention. A brief comparison with the UK, Singapore, and Hong Kong reveals a consistent theme of strictly limiting the due process defense, with slight jurisdictional nuances.

In the United Kingdom, Article V(1)(b) is implemented through Section 103(2)(c) of the Arbitration Act 1996, narrowly interpreted by English courts emphasizing the high threshold for proving inability to present one's case. In Kanoria v. Guinness⁶, enforcement was refused because Guinness, unable to attend arbitration hearings in India due to serious illness, was unfairly denied participation. Such refusals are rare; typically, English courts enforce awards unless a fundamental procedural deficiency occurs. English jurisprudence focuses on whether the procedural violation was outside the party's control, clearly distinguishing genuine due process violations from tactical litigation choices.

Singapore, as a Model Law jurisdiction and signatory to the New York Convention, similarly requires a high threshold to prove breaches of natural justice. The Singapore Court of Appeal, in China Machine New Energy Corp. v. Jaguar Energy Guatemala⁷, upheld the tribunal's procedural regime, finding no substantial prejudice. Conversely, in CBS v. CBP⁸, a refusal to permit oral evidence was deemed a breach of natural justice. Courts emphasize timely objections, disallowing parties from raising procedural complaints belatedly as a tactic during enforcement. In the recent case of Siddiqsons Tin Plate Ltd v New Metallurgy Hi Tech⁹, The court dismissed the challenge for natural justice violations, emphasizing the limited scope for objections.

Hong Kong, recognized for stringent enforcement standards, adopts a limited interpretation of due process exceptions under its Arbitration Ordinance.¹⁰ In U v. A,¹¹ the Hong Kong court upheld enforcement despite procedural strictness regarding late evidence submission, emphasizing no serious denial of due process occurred. Hong Kong also imposes indemnity costs for unmeritorious enforcement challenges, underscoring its pro-enforcement stance and discouraging frivolous objections. In A v R1 and Another¹² enforcement was refused due to ex-parte communications and defects violating due process and public policy. The respondents were unaware of these procedural arrangements and communications until after the first award was issued . The Court determined that these failings were significant enough to undermine the integrity of the arbitration proceedings and violated basic principles of justice.

V. Practical Recommendations and Way Forward

Courts in India are advised to maintain a strict and narrow interpretation of Section 48(1)(b), in accordance with the Supreme Court's directives against expanding its scope. Judges must refrain from using it as a repository for miscellaneous complaints, instead emphasizing genuine fairness specifically, whether a party was truly deprived of the opportunity to present its case. Enforcement should not be blocked for anything less than that. It is essential for Courts to demand evidence of real harm when a party claims an inability to present its case. If a procedural irregularity did not genuinely impede the party's ability to advance key arguments or influence the outcome, the award should be upheld.

Similar to practices in Hong Kong, minor errors or technical noncompliance should be overlooked. Courts are encouraged to state explicitly in their rulings that only significant violations of due process warrant consideration, thereby deterring parties from raising trivial or tactical objections. Parties are urged to voice any procedural concerns immediately during the arbitration process. Failure to do so, such as in cases involving short notice or denied document requests, should be regarded as a waiver of the objection in subsequent enforcement proceedings. This approach prevents parties from remaining silent during arbitration only to challenge the award later in court.

Incorporating waiver explicitly into the Section 48 analysis would prevent hidden objections from emerging as surprises. Even when a technical ground under Section 48 is established, enforcement is not automatically denied, as the law provides that it "may" be refused, allowing for judicial discretion. This discretion should be applied to uphold awards in suitable instances, such as when a party missed a single hearing but participated in others without suffering actual harm.

Building on the principles from Vijay Karia, if the issue affects only private interests without compromising overall fairness, courts should favour enforcement by balancing the prejudice against the interest in finality. To address unfounded resistance to enforcement, courts are recommended to impose substantial costs on those mounting frivolous challenges, following the Supreme Court's precedent in Vijay Karia where hefty costs were levied on speculative litigants. Such measures discourage the submission of every conceivable weak objection merely to delay proceedings, fostering an environment where only well-substantiated claims are pursued. Hong Kong's indemnity costs could be a good model for India.

Finally, Indian Courts and policymakers should monitor advancements in leading arbitration jurisdictions such as the UK and Singapore, incorporating relevant adaptations for issues like technology in hearings. This vigilance ensures that India's system remains innovative and harmonized with global norms, thereby enhancing trust among stakeholders.

VI. Conclusion

Moving forward, the challenge for India is to maintain consistency and resist any backsliding. Each enforcement case must be handled with an academic rigor and practical wisdom – separating genuine cases of injustice (where refusal is justified) from tactical manoeuvres by disgruntled award-debtors. The balance struck in recent jurisprudence – enforcing awards as a rule, refusing only as a narrow exception – is the right one. By continuing this path, and by incorporating the practical measures suggested (such as penalizing frivolous objections and leveraging the discretion to enforce), Indian Courts will reinforce the message that India honours its international arbitration commitments. The trajectory from 2020 to 2025 is encouraging, and with continued vigilance, India can remain a jurisdiction that both respects arbitral outcomes and upholds the rule of law by intervening only against truly unjust awards.

Footnotes

1. 2020 INSC 178

2. 2025:DHC:3276

3. 2025 SCC OnLine TS 390

4. MANU/TL/0310/2025

5. 2023(1)CTC866

6. [2006] EWCA Civ 222

7. [2020] SGCA 12 

8. [2021] SGCA 4

9. [2024] SGHC 272

10. Cap. 609

11. [2017] HKCFI 398

12. [2024] HKCFI 1511

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