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2015 (3) TMI 460 - SUPREME COURT

2015 (3) TMI 460 - SUPREME COURT - TMI - Arbitration clause - territorial criterion / principle - Scope of Arbitration Act, 1996 - Performance of the agreement - English Arbitration Law was made applicable - Maintainability of appeal against the Foreign Awards - Part I of the Arbitration and Conciliation Act, 1996 Act is applicable to arbitrations held outside India unless the parties have either expressly or impliedly excluded the provisions of the Act- Implied Exclusion - Held that:- In the pr .....

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us phrases like “arbitration in London to apply”, arbitrators are to be the members of the “London Arbitration Association” and the contract “to be governed and construed according to English Law”. It is worth noting that there is no other stipulation relating to the applicability of any law to the agreement. There is no other clause anywhere in the contract. That apart, it is also postulated that if the dispute is for an amount less that US $ 50000 then, the arbitration should be conducted in a .....

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he commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the clause that it is a proper clause or substantial clause and not a curial or a procedural one by which the arbitration proceedi .....

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n that we have already arrived at.

Before parting with the case, it is obligatory on our part to state that the Division Bench of the High Court has allowed the petition on the foundation that the Bharat Aluminium Co. [2012 (9) TMI 912 - SUPREME COURT] case would govern the field and, therefore, the court below had no jurisdiction is not correct. But as has been analysed and discussed by us, even applying the principles laid down in Bhatia International [2002 (3) TMI 824 - SUPREME COU .....

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ulla C. Pant JJ. JUDGMENT The issue that has emanated for consideration in this appeal is whether in the obtaining factual matrix, especially regard being had to the nature of the arbitration clause, the High Court is justified in setting aside the order passed by the learned Additional District Judge, Ernakulam on 25.9.2014 in I.A. No. 4345 of 2014 in O.P. (ARB) No. 802/2014 directing the first respondent therein to furnish security for US$ 11,15,400 or its equivalent (approximate) Indian ͅ .....

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ment in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.1(1 (2012) 9 SCC 552) inasmuch as clause 5 of the contract which is the arbitration clause clearly spells out that the contract is to be governed and construed according to English law and if the dispute of the claim does not exceed USD 50,000, the arbitration should be conducted in accordance with small claims procedure of the London Maritime Arbitration Association. 2. Regard being had to the lis in question, suffice it to .....

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the principal/main agreement. As the facts would undrape arbitration proceedings were initiated and eventually an award was passed. 3. After the award came into existence, the present appellant filed an application under Section 9 before the District Court, Ernakulam for its enforcement under Sections 9/47 and 49 of the Act. As the factual narration would further uncurtain in respect of the addendum to contract, when disputes arose relating to the same, arbitration proceedings were initiated and .....

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ly without jurisdiction and hence, unsustainable in law. 5. A counter affidavit was filed contending, inter alia, that the application before the learned Additional District Judge was maintainable inasmuch as the contract between the parties was entered into prior to the decision in Bharat Aluminium Co. (supra) and, therefore, the principle laid down in the said decision was not attracted to the facts of the case, and in fact, it was governed by the principles stated in Bhatia International v. B .....

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tion that since Ext.P1 was entered into before the judgment in Bharat Aluminium Co. s case and therefore the principles laid down in the said decision is not applicable to the facts of the case cannot be countenanced. The law laid down by the Supreme Court in Bharat Aluminium Co. s case is declaratory in nature and, therefore, the first respondent cannot be heard to say that he is not bound by the same and that the said principle cannot be applied to the case on hand. In the case of a declaratio .....

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atia International was rendered by this Court on 13-3-2002. Since then, the aforesaid judgment has been followed by all the High Courts as well as by this Court on numerous occasions. In fact, the judgment in Venture Global Engg. has been rendered on 10-1- 2008 in terms of the ratio of the decision in Bhatia International. Thus, in order to do complete justice, we hereby order, that the law now declared by this Court shall apply prospectively, to all the arbitration agreements executed hereafter .....

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resent case inasmuch as there is nothing in the addendum to suggest any arbitration and, in fact, it is controlled and governed by the conditions postulated in the principal contract. We shall advert to this aspect slightly more specifically at a later stage. 8. Keeping the aforesaid in view, it is necessary to keenly understand the decision in Bhatia International (supra). In the said case, the agreement entered into between the parties, contained an arbitration clause which provided that arbit .....

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ge, which found favour with the High Court. Before this Court, it was urged on behalf of the appellant that Part I of the Act only applies to arbitration where the place of arbitration is in India, but if the place of arbitration is not in India, then Part II of the Act would apply. On behalf of the respondent therein, it was urged that unless the parties, by their agreement either expressly or impliedly exclude its provisions, Part I would also apply to all international commercial arbitrations .....

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unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply. [Emphasis supplied] After the said conclusion was recorded, the stand of the learned senior counsel for the appellant was put thus:- Faced with this situation Mr Sen submits that, in this case the parties had agreed that the arbitration be as pe .....

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he Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an award, as the Arbitral Tribunal considers appropriate. 2. Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party t .....

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Article 23 of the ICC Rules and interpreted thus:- Thus Article 23 of the ICC Rules permits parties to apply to a competent judicial authority for interim and conservatory measures. Therefore, in such cases an application can be made under Section 9 of the said Act. 9. The decision in Bhatia International (supra) was followed in Venture Global Engg. (supra). The Court scanned the ultimate conclusion recorded in Bhatia International (supra) and in that context, referred to various paragraphs and .....

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s only in the sentence starting at the bottom of para 26 that the phrase it must immediately be clarified that the finding of the Court is rendered. That finding is to the effect that an express or implied agreement of parties can exclude the applicability of Part I. The finding specifically states: But if not so excluded, the provisions of Part I will also apply to all foreign awards . This exception which is carved out, based on agreement of the parties, in para 21 (placita e to f) is extracte .....

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es to provide by agreement that Part I or any provision therein will not apply. Thus in respect of arbitrations which take place outside India even the nonderogable provisions of Part I can be excluded. Such an agreement may be express or implied. 33. The very fact that the judgment holds that it would be open to the parties to exclude the application of the provisions of Part I by express or implied agreement, would mean that otherwise the whole of Part I would apply. In any event, to apply Sec .....

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t to be done in the present case. In such an event, the judgment-debtor cannot be deprived of his right under Section 34 to invoke the public policy of India, to set aside the award. As observed earlier, the public policy of India includes - (a) the fundamental policy of India; or (b) the interests of India; or (c) justice or morality; or (d) in addition, if it is patently illegal. This extended definition of public policy can be bypassed by taking the award to a foreign country for enforcement. .....

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n in Bhatia International (supra) , Part I of the Act is applicable to the award that was called in question in the said case, even though it was a foreign award. 10. The aforesaid decision clearly lays down that it would be open to the parties to exclude the application of the provision of Part I by express or implied agreement. Unless there is express or implied exclusion, the whole of Part I would apply. The Court, as stated earlier, was dealing with shareholders agreement between the parties .....

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ement, the shareholders shall at all times act in accordance with the Companies Act and other applicable Acts/rules being in force, in India at any time. The said clauses were interpreted by the Court not to exclude either expressly or impliedly the applicability of Part I of the Act. 11. In this context, it will be useful to refer to the decision in Indtel Technical Services (P) Ltd. v. W.S. Atkins Rail Ltd.( 4 (2008) 10 SCC 308) wherein the designated Judge was called to decide the issue of ap .....

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touches or concerns any dispute or difference under either of the sub-contract agreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevant sub-contract agreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement. The Court referred to the decision in Bhatia International (supra) and Lesotho Highla .....

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) case support such a proposition. What, however, distinguishes the various decisions and views of the authorities in this case is the fact that in Bhatia International this Court laid down the proposition that notwithstanding the provisions of Section 2(2) of the Arbitration and Conciliation Act, 1996, indicating that Part I of the said Act would apply where the place of arbitration is in India, even in respect of international commercial agreements, which are to be governed by the laws of anot .....

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plication, Part I of the Act including Section 11 would be applicable even where the international commercial agreements are governed by the laws of another country. It may be that the arbitrator might be required to take into account the applicable laws which may be the foreign laws but that does not affect the jurisdiction under Section 11 which falls in Part I which has been specifically held applicable in Bhatia International case. 13. Referring to the arbitration clause, submits learned sen .....

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Another v. Union of India(8 (2014) 7 SCC 603). It is also urged by Mr. Giri, learned senior counsel that after the principal agreement, an addendum was executed between the parties after pronouncement of the decision in Bharat Aluminium Co. case and, therefore, the principles laid down in Bhatia International (supra) would not be applicable. 15. It is seemly to exposit the controversy and to appreciate what has been laid down in the case of Reliance Industries Limited (supra). The appellant in .....

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s 32 and 33 which was entered into between the parties. The relevant clause for the present purpose is 33.12. We think it appropriate to reproduce the relevant part of the said clause. 33. Sole expert, conciliation and arbitration: 33.12. The venue of conciliation or arbitration proceedings pursuant to this article, unless the parties otherwise agree, shall be London, England and shall be conducted in the English language. The arbitration agreement contained in this Article 33 shall be governed .....

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standing the principle, ultimately stated in the said authority:- 4. Applicable law and arbitration - Except the change of venue/seat of arbitration from London to Paris, Articles 32 and 33 of the contract shall be deemed to be set out in full n this agreement mutatis mutandis and so that references therein to the contract shall be references to this agreement. 17. As issues arose, the Arbitral Tribunal was constituted under Article 33.12, the venue of arbitration was in London. A substantial he .....

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purposes of the arbitration initiated under the claimants notice of arbitration dated 16-12-2010 shall be London, England. (b) That any hearings in this arbitration may take place in Paris, France, Singapore or any other location the Tribunal considers may be convenient. (c) That, save as set out above, the terms and conditions of the arbitration agreements in Article 33 of the PSCs shall remain in full force and effect and be applicable in this arbitration. 18. The respondent, Union of India, .....

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within India; that the contracts stipulate that they shall be governed and interpreted in accordance with the laws of India ; that they also provided that nothing in this contract shall entitle either of the parties to exercise the rights, privileges and powers conferred upon them by the contract in a manner which will contravene the laws of India (Article 32.2); and that the contracts further stipulate that the companies and the operations under this contract shall be subject to all fiscal legi .....

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pplicability in relation to arbitration agreement contained in Article 33. This would mean that the English law would be applicable only with regard to the curial law matters i.e. conduct of the arbitral proceedings. For all other matters, proper law of the contract would be applicable. Relying on Article 15(1), it has been held that the fiscal laws of India cannot be derogated from. Therefore, the exclusion of Indian public policy was not envisaged by the parties at the time when they entered i .....

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jected the contract to be governed. Therefore, according to the High Court, the question of arbitrability of the dispute is not a pure question of applicable law of arbitration or lex arbitri but a larger one governing the public policy. 20. Addressing the issue of maintainability, this Court referred to the decision in Bhatia International (supra) and took note of the fact that parties have agreed and as is also perceivable from the final partial consent award that the juridical seat or local p .....

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hatia International case and, thereafter, analysed the relevant articles of the PSC to discover the real intention of the parties as to whether the provisions of the Act had been excluded. The Court referred to Articles 32.1 and 32.2 that dealt with the applicable law and language of the contract. Article 32.1 provided that the proper law of the contract would be law of India and under Article 32.2 made a declaration none of the provisions contained in the contract would entitle either the Gover .....

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ration for the purpose initiated under the claimants notice of arbitration would be at London. The Court posed the question whether such stipulations excluded the applicability of the Act or not. The Court repelling the contention that clauses do not exclude the applicability of the 1996 Act, observed thus:- In our opinion, the expression laws of India as used in Articles 32.1 and 32.2 has a reference only to the contractual obligations to be performed by the parties under the substantive contra .....

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interpreted in accordance with the laws of India. In contradistinction, Article 33.12 specifically provides that the arbitration agreement contained in Article 33.12 shall be governed by the laws of England. Therefore, in our opinion, the conclusion is inescapable that applicability of the Arbitration Act, 1996 has been ruled out by a conscious decision and agreement of the parties. Applying the ratio of law as laid down in Bhatia International it would lead to the conclusion that the Delhi Hig .....

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also be applicable to the arbitration agreement. The Court referred to the decision in Videocon Industries Ltd. v. Union of India (9 (2011) 6 SCC 161). Referring to clause in the Videocon Industries Ltd. (supra), the Court proceeded to state that:- 47. ….The first issue raised in Videocon Industries Ltd. was as to whether the seat of arbitration was London or Kuala Lumpur. The second issue was with regard to the courts that would have supervisory jurisdiction over the arbitration proceedi .....

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the seat of arbitration was Kuala Lumpur. If the parties wanted to amend Article 34.12, they could have done so only by a written instrument which was required to be signed by all of them. Admittedly, neither was there any agreement between the parties to the PSC to shift the juridical seat of arbitration from Kuala Lumpur to London nor was any written instrument signed by them for amending Article 34.12. Therefore, the mere fact that the parties to the particular arbitration had agreed for shif .....

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f India and it was held that the Delhi High Court did not have the jurisdiction to entertain the petition filed by the Union of India under Section 9 of the Arbitration Act. 22. While discussing about the ratio laid down in Videocon Industries Ltd. (supra), the Court analysed the agreement of the earlier case, and mainly the relevant parts of Articles 33, 34 and 35. Article 34.12 in Videocon Industries Ltd. case read as follows: 34.12. Venue and law of arbitration agreement.- The venue of sole e .....

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ws of England. Clause 35.2 of the agreement pertaining to amendment stipulated that the said contract shall not be amended modified, varied or supplemented in any respect except by an instrument in writing signed by all the parties, which shall state the date upon which the amendment or modification shall be effective. Thereafter, the Court had proceeded to state what we have reproduced hereinbefore. 23. In Reliance Industries Ltd. (supra), the Court took note of the fact that parties had made n .....

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tronger footing than in Videocon Industries Ltd. As noticed earlier, in Videocon Industries, this Court concluded that the parties could not have altered the seat of arbitration without making the necessary amendment to the PSC. In the present appeal, necessary amendment has been made in the PSC. Based on the aforesaid amendment, the Arbitral Tribunal has rendered the final partial consent award of 14-9-2011 recording that the juridical seat (or legal place) of the arbitration for the purposes o .....

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or a remedy … as to the validity of an existing interim or final award is agreed to be made only in the courts of the place designated as the seat of arbitration . [emphasis in original] 25. The two-Judge Bench referred to Dozco India Private Ltd. v. Doosan Infracore Company Ltd. (10 (2011) 6 SCC 179), Sumitomo Heavy Industries Ltd. v. ONGC Ltd. ( 11 (1998) 1 SCC 305), Yograj Infrastructure Ltd. v. Ssang Yong Engg. and Construction Co. Ltd. (12 (2011) 9 SCC 735) and quoted a paragraph fro .....

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Ireland. This immediately establishes a strong connection between the arbitration agreement itself and the law of England. It is for this reason that recent authorities have laid stress upon the locations of the seat of the arbitration as an important factor in determining the proper law of the arbitration agreement. Thereafter, the two-Judge Bench held thus:- In our opinion, these observations in Sulamerica Cia Nacional de Seguros SA v. Enesa Engelharia SA - Enesa (15 (2013) 1 WLR 102) are full .....

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llenge any award rendered in the arbitration proceedings would lie under the relevant provisions contained in the Arbitration Act, 1996 of England and Wales. Whether or not such an application would now be entertained by the courts in England is not for us to examine, it would have to be examined by the court of competent jurisdiction in England. 26. Elaborating the said facet, the Court discussed the principle that has been stated in Bhatia International (supra) laying that in cases of internat .....

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On the basis of the aforesaid agreement, necessary amendment has been made in the PSCs. On the basis of the agreement and the consent of the parties, the Arbitral Tribunal has made the final partial consent award on 14-9- 2011 fixing the juridical seat (or legal place) of arbitration for the purposes of arbitration initiated under the claimants notice of arbitration dated 16-12-2010 in London, England. To make it even further clear that the award also records that any hearing in the arbitration .....

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n a further analysis of the said decision, we notice that the Court repelled the submission that irrespective of the provisions contained in Article 33.12, the Act would be applicable to arbitration proceeding and the English law would be applicable only in relation to the conduct of the arbitration up to the passing of the partial final award, as in the said case, it was the partial final award was in question. In justification in repelling such a submission, the Court opined thus: 69. ...... A .....

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ania Internacional De Seguros Del Peru (16 (1988) 1 Lloyd s Rep 116 (CA)), the Court of Appeal in England considered an agreement which contained a clause providing for the jurisdiction of the courts in Lima, Peru in the event of judicial dispute and at the same time contained a clause providing that the arbitration would be governed by the English law and the procedural law of arbitration shall be the English law. The Court of Appeal observed as follows: All contracts which provide for arbitrat .....

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arties to agree that the law governing the substantive contract (PSC) would be different from the law governing the arbitration agreement. This is precisely the situation in the present case. Article 32.1 specifically provides that the performance of the contractual obligations under the PSC would be governed and interpreted under the laws of India. So far as the alternative dispute redressal agreement i.e. the arbitration agreement is concerned, it would be governed by the laws of England. Ther .....

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courts and after referring to the views expressed by learned commentators on international commercial arbitration concluded that: 16. The law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of that agreement. 28. After so holding, the Court referred to the legal position stated in Dozco s case wherein it has been ruled thus: In the backdrop of these conflicting claims, the question .....

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e proposition that the arbitrability of the dispute is to be determined in terms of the law governing arbitration agreement and the arbitration proceedings have to be conducted in accordance with the curial law. This Court, in that judgment, relying on Mustill and Boyd: The Law and Practice of Commercial Arbitration in England, 2nd Edn., observed in para 15 that where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the cour .....

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pted by the two-Judge Bench. 29. Eventually, the Court dislodged the decision of the High Court of Delhi stating that: 76.2. We further overrule and set aside the conclusion of the High Court that, even though the arbitration agreement would be governed by the laws of England and that the juridical seat of arbitration would be in London, Part I of the Arbitration Act would still be applicable as the laws governing the substantive contract are Indian laws. 76.3. In the event a final award is made .....

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cated. However, we accept the submission of the appellant that since the substantive law governing the contract is Indian law, even the courts in England, in case the arbitrability is challenged, will have to decide the issue by applying Indian law viz. the principle of public policy, etc. as it prevails in Indian law. 30. We have dealt with the said decision as it has taken note of all the pronouncements in the field and further, Mr. Giri, learned senior counsel appearing for the respondents wo .....

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e appellant therein can be enforced in India. 32. In view of the aforesaid propositions laid down by this Court, we are required to scan the tenor of the clauses in the agreement specifically, the arbitration clause in appropriate perspective. The said clause read as follows: 5. If any dispute or difference should arise under this charter, general average/arbitration in London to apply, one to be appointed by each of the parties hereto, the third by the two so chosen, and their decision or that .....

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3. Two aspects emerge for consideration: (i) Whether on the basis of construction placed on the said clause in the agreement it can be stated that the ratio laid down in Bhatia International (supra) would not be attracted, but what has been laid down in Reliance Industries Ltd. (supra) would be applicable and (ii) whether the execution of the addendum would attract the principles laid down in Bharat Aluminium Co. case and oust the jurisdiction of the Indian courts. 34. First, we shall advert to .....

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Anr. v. A.P. Agencies, Salem (17 (1989) 2 SCC 163) and Rajasthan SEB v. Universal Petrol Chemicals Ltd. (18 (2009) 3 SCC 107) It is also urged by him that the stipulation in the agreement does not even remotely impliedly exclude the jurisdiction of the Indian courts. He would submit that to apply the principle of implied exclusion, the Court has to test the presumed intention and in such a situation, it is the duty of the Court to adopt an objective approach, that is to say, what would have been .....

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s of Videocon Industries Ltd. (supra), Dozco (supra) and Reliance Industries Ltd. (supra). 36. In Videocon Industries Ltd. (supra), the Court has referred to Section 3 of the English Arbitration Act, 1996, which reads as follows: 3. The seat of the arbitration.-In this Part the seat of the arbitration means the juridical seat of the arbitration designated- (a) by the parties to the arbitration agreement, or (b) by any arbitral or other institution or person vested by the parties with powers in t .....

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al or other institution or person empowered by the parties to do so or by the Arbitral Tribunal, if so authorised by the parties. In contrast, there is no provision in the Act under which the Arbitral Tribunal could change the juridical seat of arbitration which, as per the agreement of the parties, was Kuala Lumpur. Therefore, mere change in the physical venue of the hearing from Kuala Lumpur to Amsterdam and London did not amount to change in the juridical seat of arbitration. Eventually, the .....

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e mere fact that the appellant had earlier filed similar petitions was not sufficient to clothe that High Court with the jurisdiction to entertain the petition filed by the respondents. 37. In Dozco (supra), the Court referred to Article 22 and Article 23 of the agreement, which dealt with the governing laws and arbitration. Article 22.1 in the said case provided that the agreement shall be governed by and construed in accordance with the laws of the Republic of Korea. Article 23.1, which dealt .....

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placed heavy reliance on Naviera Amazonica Peruana SA (supra) and held thus: 19. In respect of the bracketed portion in Article 23.1, however, it is to be seen that it was observed in Naviera case: … It seems clear that the submissions advanced below confused the legal seat , etc. of an arbitration with the geographically convenient place or places for holding hearings. This distinction is nowadays a common feature of international arbitrations and is helpfully explained in Redfern and Hu .....

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the place of arbitration. International commercial arbitration often involves people of many different nationalities, from many different countries. In these circumstances, it is by no means unusual for an Arbitral Tribunal to hold meetings - or even hearings - in a place other than the designated place of arbitration, either for its own convenience or for the convenience of the parties or their witnesses…. It may be more convenient for an Arbitral Tribunal sitting in one country to condu .....

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upon the seat of the arbitration, but for the convenience of the parties in case they find to hold the arbitration proceedings somewhere else than Seoul, Korea. The part which has been quoted above from Naviera Amazonica Peruana S.A. v. Compania International de Seguros del Peru supports this inference. 20. In that view, my inferences are that: (i) The clear language of Articles 22 and 23 of the distributorship agreement between the parties in this case spells out a clear agreement between the p .....

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d the appointment of arbitrator in terms of that provision. 38. In Yograj Infrastructure Ltd. (supra), two-Judge Bench dealt with the concept of procedural law and curial law . In that context, it referred to the agreement in the contract, namely, Clauses 27 and 28. In that context the Court opined that: ..... As indicated hereinabove, Clause 28 indicates that the governing law of the agreement would be the law of India i.e. the Arbitration and Conciliation Act, 1996. The learned counsel for the .....

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Tribunal itself. Clause 27.1 makes it quite clear that the curial law which regulates the procedure to be adopted in conducting the arbitration would be the SIAC Rules. There is, therefore, no ambiguity that the SIAC Rules would be the curial law of the arbitration proceedings. It also happens that the parties had agreed to make Singapore the seat of arbitration. Clause 27.1 indicates that the arbitration proceedings are to be conducted in accordance with the SIAC Rules. [Emphasis supplied] 39. .....

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ard being had to the Rule 32 of the SIAC Rules, the law laid down in Bhatia International (supra) would not be applicable. The said Rule, being pertinent to the issue in question, is reproduced below:- 32. Where the seat of arbitration is Singapore, the law of the arbitration under these Rules shall be the International Arbitration Act (Cap. 143-A, 2002 Edn., Statutes of the Republic of Singapore) or its modification or re-enactment thereof. And in that context, the Court ruled thus: Having agre .....

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re i.e. the seat of arbitration would be in Singapore, in accordance with the Singapore International Arbitration Centre Rules as in force at the time of signing of the agreement. xxxxx xxxxx xxxxx In the instant case, once the parties had specifically agreed that the arbitration proceedings would be conducted in accordance with the SIAC Rules, which includes Rule 32, the decision in Bhatia Internationa l 1 and the subsequent decisions on the same lines, would no longer apply in the instant case .....

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conducted in English in Singapore in accordance with the Singapore International Arbitration Centre (SIAC) Rules (Clause 27.1). Clause 27.2 provided that the arbitration shall take place in Singapore and be conducted in English language. This Court held that having agreed that the seat of arbitration would be Singapore and that the curial law of the arbitration proceedings would be the SIAC Rules, it was no longer open to the appellant to contend that an application under Section 11(6) of the A .....

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esent arbitration clause, it is clear as day that if any dispute or difference would arise under the charter, arbitration in London to apply; that the arbitrators are to be commercial men who are members of London Arbitration Association; the contract is to be construed and governed by English Law; and that the arbitration should be conducted, if the claim is for a lesser sum, in accordance with small claims procedure of the London Maritime Arbitration Association. There is no other provision in .....

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d as follows: 34.12. Venue and law of arbitration agreement.- The venue of sole expert, conciliation or arbitration proceedings pursuant to this article, unless the parties otherwise agree, shall be Kuala Lumpur, Malaysia, and shall be conducted in the English language. Insofar as practicable, the parties shall continue to implement the terms of this contract notwithstanding the initiation of arbitral proceedings and any pending claim or dispute. Notwithstanding the provisions of Article 33.1, t .....

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at the contract is to be governed and construed according to the English law. This occurs in the arbitration clause. Mr. Vishwanathan, learned senior counsel, would submit that this part has to be interpreted as a part of curial law and not as a proper law or substantive law . It is his submission that it cannot be equated with the seat of arbitration. As we perceive, it forms as a part of the arbitration clause. There is ample indication through various phrases like arbitration in London to app .....

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don Maritime Arbitration Association. When the aforesaid stipulations are read and appreciated in the contextual perspective, the presumed intention of the parties is clear as crystal that the juridical seat of arbitration would be London. In this context, a passage from Mitsubishi Heavy Industries Ltd. v. Gulf Bank (21 [1997] 1 Lloyd s Rep. 343) is worth reproducing: It is of course both useful and frequently necessary when construing a clause in a contract to have regard to the overall commerc .....

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ll yield. 45. In Cargill International S.A. v. Bangladesh Sugar & Food Industries Corp.( 22 [1998] 1 W.L.R. 461 CA), Potter L.J. balanced the two approaches and said: In this connection [counsel] has rightly made the point that, when construing the effect of particular words in a commercial contract, it is wrong to put a label on the contract in advance and this to approach the question of construction on the basis of a pre-conception as to the contact s intended effect, with the result that .....

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