Enforcing Indian Judgments Abroad: The Hidden Costs of Révision au Fond
A recent article in the latest issue of the Asian Journal of Comparative Law revisits a feature of Indian private international law that often sits in the background of transactional and disputes practice but can decisively shape outcomes: the continued presence of révision au fond in India’s law on the recognition and enforcement of foreign judgments (REFJ).
For practitioners, the issue is not merely doctrinal. It concerns the enforceability of outcomes and, therefore, how disputes should be structured at the drafting stage.
Under Section 13 of the Civil Procedure Code 1908, Indian courts are formally empowered to refuse enforcement where a foreign judgment is not “on the merits.” Read literally, this suggests a willingness to reassess the correctness of the decision. In most jurisdictions today, that approach has been abandoned. Refusal of enforcement is typically confined to procedural defects: jurisdiction, fraud, natural justice, or public policy, not the substance of the decision.
In practice, Indian courts have taken a far more restrained approach. They do not reopen the correctness of the foreign judgment. Instead, they ask whether the decision reflects a genuine adjudication: was there evidence, was there a real opportunity to be heard, and is the decision reasoned? In effect, what appears to be révision au fond operates as a proxy for natural justice.
The difficulty lies in how this framework is perceived externally. Courts in jurisdictions that condition enforcement on reciprocity or substantially similar standards, such as Germany, Japan, South Korea, and, increasingly, China, do not necessarily engage with the nuances of Indian case law. The statutory text continues to signal that India permits merits review. That signal alone may be sufficient to deny enforcement of Indian judgments abroad.
This gap between doctrine and practice creates a set of risks that practitioners should factor into both litigation strategy and transactional drafting.
First, forum selection cannot be approached in isolation from enforcement.
Where assets are likely to be located outside India, the portability of an Indian judgment becomes a central concern. If enforcement is anticipated in reciprocity-based jurisdictions, the choice of an Indian court may introduce avoidable uncertainty.
Second, arbitration retains a structural advantage in this context.
India’s alignment with the New York Convention and the prohibition on merits review in the enforcement of arbitral awards offers a level of predictability that litigation currently does not. Where enforcement abroad is critical, arbitration may continue to be the safer route.
Third, dispute resolution clauses should be drafted with enforcement geography in mind.
This may involve:
- Selecting a forum whose judgments are more readily enforceable in the jurisdictions where assets are located
- Considering hybrid approaches, such as arbitration with carefully chosen seats
- Avoiding assumptions that a favourable judgment in one jurisdiction will translate into effective recovery elsewhere
Fourth, expectations around default and summary judgments should be managed carefully.
Indian courts place emphasis on whether the judgment reflects a substantive evaluation of the dispute. Orders that appear purely formal or insufficiently reasoned may face resistance in India, and this in turn feeds into how Indian judgments are assessed abroad.
The broader point is that India’s REFJ framework is not out of step in practice, but it appears to be so in form. Until that dissonance is addressed, whether through legislative clarification or greater international alignment, the enforceability of Indian judgments will continue to depend as much on perception as on doctrine. The article is available open-access here.
This is an era of economic globalisation that calls for simplification of procedures and harmonisation of laws to facilitate cross-border trade in goods and services. Expeditious, effective, timely and impartial dispute resolution system promotes rapid national and international economic development. Legal bottlenecks should be minimised. Comity of nations approach demands recognition and enforcement of foreign judgements, arbitral awards and mediated settlement agreements.
Thanks a lot Professor Saloni Khanderia for highlighting the most peculiar and/or dis-orienting or confusing feature of Indian legal system’s approach towards globalisation. On the one hand, India aspires to be leading economy of the world, seeks to emerge as a global hub of arbitration, is part of UNCITRAL, New York Convention, Singapore Convention and many other international treaties and declarations. On the other hand, Section 13 of its Code of Civil Procedure (popularly known among lawyers as Civil Procedure Code or CPC), Indian courts are formally empowered to refuse enforcement where a foreign judgement is not “on the merits.” Notwithstanding the careful and sophisticated approach of the Indian judiciary in its interpretation and application, this particular legal provision sends a wrong message to foreign investors and other jurisdictions. It may be worthwhile to reproduce that particular provision verbatim here:
“Section 13. When foreign judgement not conclusive.
A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except–
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1 [India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in 1 [India].”
One does not know what is the relevance of this legal provision in 2026 that was adopted in 1877. Today, it is ill-advised for India to retain an REFJ framework in its Code of Civil Procedure. Nowadays, enforcement of foreign judgements has become far more common. It is high time that Parliament, Law Commission of India, judiciary, jurists and all enlightened stakeholders revisited this outdated, obsolete and harmful provision, and suitably amended it to bring it in consonance with contemporary requirements. It is too little, too late. Better late than never. Sooner the better. 21st century India needs the 21st century laws and mindset.
Thank you, Saloni.
I am a bit confused: Article 13(b), on its face, does not seem to allow révision au fond as such.
I think there is a significant difference between saying that, in order to be recognized, a foreign judgment must have been “given on the merits of the case”, and saying that the foreign court wrongly decided the case because it misunderstood the facts or misapplied the law (révision au fond). Article 13(b) may indeed be considered outdated and stringent, but, in my view, it does not in itself amount to révision au fond unless courts interpret and apply it as such. This does not appear to be the case here, however, since, as you note in your post, courts “do not reopen the correctness of the foreign judgment”.
If this is correct, then reciprocity should not raise any particular difficulty, because, generally speaking, what matters is not what statutory provisions formally provide, but how they are applied by courts in practice (which I understand to be the dominant approach). Japanese courts did not deny reciprocity with China because of the restrictive wording of the law as such, but rather because Chinese courts had traditionally adopted a restrictive approach, with no record of enforcing foreign judgments before 2014. Enforcement was typically refused for lack of reciprocity, often after the courts observed that no treaty had been concluded with the State of origin.
By contrast, Israeli courts allowed the enforcement of Russian judgments despite the fact that Russian law does not permit enforcement in the absence of a treaty, because the judges were persuaded (on the basis of Russian judicial practice) that foreign judgments were likely to be declared enforceable even without a treaty, on the basis of reciprocity.
Dear Beligh, Thank you for your comment. Under Indian law (CPC), Section 13 indeed allows for a merits review – in terms of testing the propriety of judgments. It is only the courts that have not interpreted it this way – limiting its application to (more or less) natural justice checks. Moreover, if we analyse the commentary (for example of German law), Indian judgments have, in practice, been denied enforcement specifically because of this ground. I have not analysed how Chinese courts evaluate other countries’ judgments or what reciprocity means for other countries. My analysis is solely how Section 13(b) of the CPC prevents the movement of Indian judgments in many countries. How and why Israeli courts enforced Russian judgments is beyond the scope of my paper.
Thank you so much, Saloni. I appreciate your clear response.
Révision au fond is certainly one of the most difficult notions in the field of foreign judgments, as its meaning can be elusive and sometimes difficult to grasp.
What can be said, however, is that not all “merit review” necessarily amounts to révision au fond; otherwise, substantive public policy review would itself be considered révision au fond. Scholars have consistently pointed out the risk of conflation between the two notions, and it does sometimes happen that courts, under the cover of public policy, in fact review the merits of the foreign judgment.
That said, again, Article 13(b), on its face, does not seem to be about révision au fond as such (at least as I understand it). It is different from Article 74 of the Gabonese Civil Code, which states that courts addressing an exequatur application “enjoy unlimited powers of review” and “may also reduce the amount of the award” ordered by the foreign court. It is also quite different from Rule 39, Section 48 of the Philippine Code of Civil Procedure, which explicitly treats foreign judgments against persons as “presumptive evidence” that may be “repelled by evidence of […] a clear mistake of law or fact”.
Nonetheless, the mere fact that statutory provisions give the impression of allowing a review of the merits does not necessarily entail reciprocal retorsion, if judicial practice is in line with the principle prohibiting révision au fond. The practice of Philippine courts is illustrative in this respect. After an initial period in which the Supreme Court did engage in révision au fond on the basis of the above-mentioned rule, the Court clarified its position and has consistently declared that courts “are not allowed to delve into the merits of a foreign judgment”. In light of this practice, I am not sure that reciprocity would be denied with respect to the Philippines simply because of the problematic wording of Rule 39, Section 48.
Finally, I am not familiar with the German cases you referred to, but I know that German courts used to deny reciprocity with Japan, even though Japanese law is based on German law. It is therefore possible that German courts have misunderstood Indian judicial practice and that this should be corrected by showing, as you noted in your post, that Indian courts “do not reopen the correctness of the foreign judgment”.
In any event, I agree that Article 13(b) is unnecessarily confusing and not in line with dominant international practices, and therefore should be repealed.
Thank you for your comment and for bringing in these interesting comparative perspectives from global practices. However, the distinction between the text of Section 13(b) CPC and its practical application is precisely where the difficulty lies in the Indian context. While Indian courts theoretically state they do not ‘reopen the correctness’ of a judgment, the threshold for satisfying the ‘merits’ test under Indian jurisprudence is uniquely stringent. Landmark Supreme Court rulings (such as International Woollen Mills) clarify that a foreign court must actively evaluate the substantive evidence of the case. If a judgment is entered because a party failed to produce evidence, or via certain summary procedures, Indian courts routinely refuse enforcement on the grounds that it was not ‘on the merits. ‘Therefore, while it may not be a formal révision au fond in the traditional European sense, the level of substantive inquiry that Indian courts conduct into the foreign proceedings functionally mimics its effects. This practical reality is precisely what creates the high friction regarding reciprocity that my research highlights.
Thank you, Saloni.
Let me first clarify that the sole purpose of this exchange is to discuss an issue that I find highly interesting.
I am not questioning the undesirability of Article 13(b); I believe we agree on that point.
Where we seem to diverge, as I see it, is on two issues: first, whether Article 13(b) is about révision au fond; and second, whether Indian courts, in applying this provision, only “theoretically state they do not ‘reopen the correctness’ of a judgment”, with the implication that, if this were so, Indian judgments could be denied enforcement abroad for lack of reciprocity. I think suggesting one or the other (or both) can, to some extent, if not misleading, be quite confusing.
On the first point, my position is the same as that expressed by Adeline Chong in her outstanding and comprehensive paper on recognition regimes in Asia (Adeline Chong, ‘Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia’ (2020) 16(1) Journal of Private International Law 31). Adeline addresses the issue of “judgment on the merits” (p. 41) and “review on the merits” (p. 45) separately, and her analysis corresponds to my understanding that Article 13(b) is not about révision au fond.
This also seems to be the view taken by almost all Indian scholars I have read so far, including what you wrote in your book with Stellina, where it is clearly stated (p. 267) that “Indian private international law does not, however, permit suo moto investigation into the merits of foreign judgments. In other words, the Indian court would not review the merits unless the judgment-debtor alleges that the decision was made in default or has not been based on evidence.”
This can also be confirmed by Narinder Singh, in Adeline Chong (ed.) Recognition and enforcement of foreign judgments in Asia (ABLI, 2017), who considers (p. 71) that “The well-settled principle of law in India with respect to foreign decrees and judgments is that “it is not open to the court trying the suit on a foreign judgment to decide whether the decision of the foreign court on the materials put before it is right or not”. While adjudicating the suit on a foreign decree or judgment, the duty of the court is “merely” to see that the foreign court has applied its mind to the facts of the case and the law on the point. In other words, the courts of India do not examine the substantive merits of the foreign court’s decree or judgment.”
On the second point, you suggest that révision au fond is practiced in India, and that only “theoretically” Indian courts “do not ‘reopen the correctness’ of a judgment”. That is fine (although it is not really consistent with earlier statements quotes above). However, I find this difficult to reconcile with what you describe in your paper, which I read with great interest. In fact, your general description of Indian courts’ practice in your paper largely corresponds to my initial understanding.
You note, for example, that (p. 228) “In India [unlike other exemples you referred to] a merits review does not in any manner empower courts to test the factual or legal propriety of the decisions of courts from other countries. A merits review, instead, is merely a means to ascertain whether or not the foreign judgment is procedurally sound under the requirements of Indian law.” You further state (p. 229) that “judgments that are entirely erroneous are entitled to enforcement in India unless they are otherwise found to be inconsistent with principles of international or Indian law where applicable to the facts and circumstances of the case.” You also observe that “Indian courts, rooted in common law tradition, have consistently ruled that assessing whether a matter was adjudicated on its merits does not invariably require the presentation of evidence in all cases.”
Most importantly, you explicitly state (p. 230) that “Of the many cases that have come before the courts, there have only been a handful of cases in which enforcement was denied on the ground that the foreign judgment was not passed on the merits of the case”, and that, the Indian Supreme Court in a number of cases, and that, in fact, (p. 228), “In practice, however, Indian courts have never conducted a merits review – and have instead always prohibited it […]”.
Based on the above, I find it somewhat puzzling to say that courts merely “theoretically” state that they do not “reopen the correctness” of a judgment or to suggest that révision au fond is allowed or even practiced in India. I would even go further and suggest that, even if courts were to state expressly that they review the merits of foreign judgments, what ultimately matters is not what they declare, but what they do in practice.
I very much hope that other colleagues and friends from Indian and elsewhere will also join this discussion, basically to correct my understanding where it went wrong.