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2020 (5) TMI 711 - HC - Indian LawsMaintainability of petition - Seeking interim reliefs on account of indirect/direct alleged breach of certain clauses of the Joint Venture Agreement and Licence and Technical Assistance Agreement - petition is barred by principles of Section 9(3) of Arbitration and Conciliation Act, 1996 or not - HELD THAT:- Perusal of the arbitration clause shows that the parties were ad idem that in' case respondent no. 1 initiated the arbitration, then the arbitration would be held in India and under the Commercial Rules of India Commercial Arbitration Association. However, arbitration would be held in Japan and under the Rules of Japan Commercial Arbitration Association (JCAA), in case it was initiated by M/s. Jay Industries. In the present case, it is undisputed that it is an international commercial arbitration and that the emergency arbitration and regular arbitration were invoked by the Indian entity. Hence, the seat of arbitration is Japan and the rules applicable are those of the JCAA. The Constitution Bench of Supreme Court in the case of BHARAT ALUMINIUM CO VERSUS KAISER ALUMINIUM TECHNICAL SERVICE, INC AND OTHERS [2012 (9) TMI 912 - SUPREME COURT] prospectively overruled the decision in Bhatia International and held that Parti of the Act would not apply in cases of international arbitration where the seat of arbitration is outside India. Pursuant to the 246th Report of the Law Commission, the Arbitration and Conciliation (Amendment) Ordinance, 2015 was promulgated, which was published in the Gazette of India on 23rd October, 2015 and came into effect immediately. The Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter referred to as 'the Amendment Act') brought about various amendments in the Act, one of them being enactment of Section 2(ii) whereby Section 2(2) was amended by inserting a proviso. Provisions of Sections 9, 27 and 37(1)(a) and 37(3) of the Act were made applicable to international commercial arbitration where the place of arbitration is outside India and the arbitral award is enforceable under the provisions of Part II of the Act, subject, however, to an agreement to the contrary. Thus, in effect, the position in law went back to the stage prior to the decision in the case of BALCO - In view of the amendment to Section 2(2), it is clear that Section 9 of the Act, with which the present petition is concerned, is applicable even to international commercial arbitration held outside India, provided its applicability has not been excluded by-the parties by an agreement to the contrary. Even on the anvil of doctrine of election, applicants have to fail. Applicants had consciously chosen to tread on a path and cannot turn around only because they were unsuccessful. It also needs a mention that the pleadings in the petition are really in the nature of an appeal pointing out flaws and infirmities in the order of the emergency arbitrator. Respondents are right that this court in a petition under Section 9 of the Act cannot sit as a court of appeal to examine the order of the emergency arbitrator. Petition is not maintainable in this court and is accordingly dismissed.
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