TMI Blog2017 (7) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge has rightly observed that this objection had not been raised by Raj TV till such time closing submissions were propounded before the Arbitral Tribunal. This is clear from the defence statement filed before the Arbitral Tribunal, as extracted by the Tribunal, wherein and whereby it becomes clear that the only objection which the respondent had raised is vis-a-viz. jurisdiction and that was pivoted on the applicability of law of limitation i.e., whether Indian Law of limitation or Singaporean Law of limitation would apply in the given circumstances. With regard to Teleport Services and Occasional Services, it was simply stated by Raj TV, particularly in paragraph 5 of the defence statement that all payments have been made and therefore, nothing more was due and outstanding. There was, absolutely, no due whatsoever was the plea - challenge to jurisdiction of Arbitral Tribunal also fails as flawed. There are no hesitation in coming to a conclusion that the order of the learned Single Judge is correct and does not call for any interference - appeal dismissed. - Hon'ble Judges M. Sathyanarayanan and M. Sundar, JJ. For the Appellant : K. Harishankar For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uplink their television signals to Thaicom's transponder. This service was also provided by Thaicom. This service is referred to as 'Teleport Services' (it is also known as 'Uplink service'). For the purpose of this order, it is referred to as 'Teleport Services' uniformly for the sake of clarity. 3(f) Owing to the above said Teleport Services, the consideration originally agreed under the said contract was increased and Raj TV agreed to make an additional payment of 1,00,000 US $, 90,000 US $ and 80,000 US $ for the first, second and third channels respectively. On the basis of the existing contractual relationship vide the said contract between Thaicom and Raj TV, Thaicom also agreed to provide further services to redistribute videos from other satellites on need based requirement, essentially to cover breaking news, sports or live events. This service is referred to as 'Occasional Services' for the sake of convenience and clarity. Additional amounts were agreed upon for Occasional Services and invoices were raised from time to time in this regard. 3(g) Therefore, the said contract, which was originally entered into for Transponder Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all disputes between the parties shall be referred to arbitration to be held in Singapore under UNCITRAL Rules. 3(l) From here on, for the sake of convenience and clarity, we shall refer to the above said clauses 19 and 23 of the said contract together (collectively) as 'arbitration agreement'. 3(m) As per the arbitration agreement, arbitration was commenced and held in Singapore in accordance with UNCITRAL Arbitration Rules. After detailed arbitration proceedings, wherein oral and documentary evidence was let in and after completion of pleadings and after arguments were heard, the Arbitral Tribunal in Singapore passed a final Award dated 21.9.2015, wherein the Arbitral Tribunal inter-alia passed an Award to the effect that Raj TV shall pay 384,122.54 US $ to Thaicom towards unpaid fees; 71,812.21 US $ towards legal fees and costs of Thaicom; 268,425.88 US $ towards interest on unpaid amounts upto 31.1.2014. The Award also ordered simple interest at the rate of 10% per annum on the above said sum of 384,122.54 US $ from 31.1.2014 upto the date of payment. 3(n) Being an Award under Part II of the A and C Act, Thaicom filed a petition in the Madras High Court u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unable to agree that this would completely denude this court of powers under Clause 15 of Letters Patent to entertain an appeal. The reason is simple. With regard to Part I of the A and C Act, orders that are appealable are set out in Section 37 of the A and C Act and the same reads as follows: 37. Appealable orders.-- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:-- [(a) refusing to refer the parties to arbitration under section 8; (b) granting or refusing to grant any measure under section 9; (c) setting aside or refusing to set aside an arbitral award under section 34.] (2) An appeal shall also lie to a Court from an order of the arbitral tribunal-- (a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an interim measure under section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. {Underlining and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitration and Conciliation Act, 1996. 4(g) However, there is no such negative import in Section 50 of the A and C Act. When the Parliament in all its legislative wisdom has clearly incorporated negative import in one provision, namely, Section 37 and has deleted it in another provision, namely, Section 50 in the same statute, we have to necessarily come to the conclusion that Sections 37 and 50 of the A and C Act have to be read differently in terms of scope and purport. 4(h) In this regard, a judgment of a Division Bench of this Court in Tamil Nadu Electricity Board, rep by Secretary Vs. Videocon Power Limited rep by its Authorised Signatory reported in 2009-1-L.W. 936, to which one of us (M. Sathyanarayanan, J.) was a party, was pressed into service to say that this appeal is not maintainable. Our attention was drawn to paragraph 32 of the said judgment, which reads as follows: 32. Inasmuch as Sub-section (1) of section 50 of the Act is available only against the order refusing to refer the parties to arbitration under section 45 of the Act and an order refusing to enforce a foreign award under Section 48 of the Act, no second appeal is contemplated in view of Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. (To be noted, limitation for money claim under Indian laws is three years and under Singaporean Law, it is six years). 4(m) Ground No. 2 was that the Arbitral Tribunal did not have jurisdiction qua Teleport services and occasional services, as according to Raj TV, the said contract dated 10.09.2003, which contains the arbitration agreement (Clauses 19 and 23), pertains only to Transponder Services (Teleport services and occasional services were agreed upon subsequently) and according to Raj TV, there is no arbitration clause in the subsequent agreement/arrangement. 4(n) Learned Single Judge after a detailed hearing held against Raj TV with regard to both grounds and allowed the petition. Learned Single Judge held that limitation is a matter of procedural law. Learned Single Judge went on to hold that once the seat of arbitration is agreed upon, the Curial law will be the law of the Country, which is the seat of arbitration. Learned Judge proceeded on the principle that limitation is procedural law. 4(o) With regard to jurisdiction of Arbitral Tribunal, the learned Judge held that Thaicom and Raj TV submitted themselves to the jurisdiction of the Arbitral Tribunal, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard of the Singapore Arbitral Tribunal based on Singaporean law of limitation (six years for money claim) is essentially opposed to public policy in India, as the law of limitation is founded on public policy. 4(v) All these issues have been dealt with by the learned Single Judge. Now that, the judgment and decree of the learned Single Judge has been put in issue before us, it may be necessary to try and capitulate/capture them as they arise in this appeal. We do that. We would list the issues arising in this appeal as follows: (i) While proper law for arbitration agreement (Curial Law) is indisputably Singaporean Law, what is the proper law for the contract qua the said contract dated 10.9.2003? (ii) Is the plea of limitation governed by the procedural law alone (Curial Law in this case) or is it substantive law too and therefore, not governed by Curial Law alone? (iii) On a demurer, if the award of the Arbitral Tribunal of Singapore is construed to be a infarct of law of limitation in India, can that be construed as opposed to public policy owing to such infarct alone? (iv) With regard to jurisdiction, is it open to a contracting party (Raj TV in this case) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that the seat of arbitration has been agreed to be Singapore and the governing law in the contract would be Singaporean Law. In other words, the stated position of the contracting parties is that proper law for the said contract is Singaporean Law. What the parties have not explicitly spelt out and covenanted is what would be the proper law for the arbitration agreement. In other words, what would be the Curial Law has not been explicitly/directly set out and covenanted. 4(z) In our opinion, this makes the task very simple and easy. The reason is, Curial Law or proper law for the arbitration agreement is directly evident (not even inferred) from the agreed seat of arbitration. The moment contracting parties agree on the seat of arbitration, it goes without saying that proper law for the arbitration agreement shall be the law of land, which is the seat of arbitration. In the instant case, there is no dispute between contracting parties, namely, Thaicom and Raj TV, that the seat of arbitration is Singapore. The moment Thaicom and Raj TV agreed that the seat of arbitration is Singapore, it follows indisputably that proper law for arbitration agreement (Curial Law) is Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. (See : Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly [(1986) 3 SCC 156, 217 : 1986 SCC (L S) 429 : (1986) 1 ATC 103 : (1986) 2 SCR 278, 372].) 47. The need for applying the touchstone of public policy has been thus explained by Sir William Holdsworth: In fact, a body of law like the common law, which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles, and if it is to maintain these principles it must be able, on the ground of public policy or some other like ground, to suppress practices which, under ever new disguises, seek to weaken or negative them. (History of English Law, Vol. III, p. 55) 48. Since the doctrine of public policy is somewhat open-textured and flexible, Judges in England have shown certain degree of reluctance to invoke it in domestic law. There are two conflicting positions which are referred as the 'narrow view' and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal legal issue is involved. (See : Vervaeka v. Smith [(1983) 1 AC 145, 164 : (1982) 2 All ER 144, 158]; Dicey Morris, The Conflict of Laws, 11th Edn., Vol. 1 p. 92; Cheshire North, Private International Law, 12th Edn., pp. 128-129). The reason for this approach is thus explained by Professor Graveson: This concern of law in the protection of social institutions is reflected in its rules of both municipal and conflict of laws. Although the concept of public policy is the same in nature in these two spheres of law, its application differs in degree and occasion, corresponding to the fact that transactions containing a foreign element may constitute a less serious threat to municipal institutions than would purely local transactions. (R.H. Graveson : Conflict of Laws, 7th Edn., p. 165) 52. In Louchs v. Standard Oil Co. of New York [224 NY 99 (1918)] Cordozo, J. has said: The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it would be harmful to international relations of the United Kingdom with friendly countries if it were to allow the machinery of its courts to be used to enforce a judgment, or an arbitral award in favour of a national of one foreign State friendly to the United Kingdom, against the national of another foreign State, also friendly to the United Kingdom, when the two foreign States are enemies of one another. Negativing the said contention, the Court of Appeal (Megaw, L.J.) has held: If there is no authority binding on us which specifically adopts that supposed doctrine, or principle, we should unhesitatingly decline to make new law to that effect in this case. We should regard it, on balance, as being contrary to public policy for such a principle to apply. (p. 300) 57. In Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v. Ras Al Khaimah National Oil Co. [(1987) 2 All ER 769] decided by the Court of Appeal, Sir John Donaldson M.R. has said: Consideration of public policy can never be exhaustively defined, but they should be approached with extreme caution. As Burrough J. remarked in Richardson v. Mellish [(1824) 2 Bing 229, 252 : (1824-34) All ER Rep 258, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the parties' agreement, even assuming that a contrary result would be forthcoming in a domestic context. (pp. 456-457) 61. In France, a distinction is made between international public policy ( order public international ) and the national public policy. Under the new French Code of Civil Procedure, an international arbitral award can be set aside if the recognition or execution is contrary to international public policy. In doing so it recognises the existence of two levels of public policy -- the national level, which may be concerned with purely domestic considerations, and the international level, which is less restrictive in its approach. (See: Redfern and Hunter, Law and Practice of International Commercial Arbitration, 2nd Edn., p. 445.) 62. According to Redfern and Hunter, if a workable definition of 'international public policy' could be found, it would be an effective way of preventing an award in an international arbitration from being set aside for purely domestic policy considerations . But in the absence of such a definition there are bound to be practices which some States will regard as contrary to international public interest and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and scope of Section 48(2)(b) of the 1996 Act. In Renusagar [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644] it has been expressly exposited that the expression public policy in Section 7(1)(b)(ii) of the Foreign Awards Act refers to the public policy of India. The expression public policy used in Section 7(1)(b)(ii) was held to mean public policy of India . A distinction in the rule of public policy between a matter governed by the domestic law and a matter involving conflict of laws has been noticed in Renusagar [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644]. For all this there is no reason why Renusagar [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644] should not apply as regards the scope of inquiry under Section 48(2)(b). Following Renusagar [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644], we think that for the purposes of Section 48(2)(b), the expression public policy of India must be given a narrow meaning and the enforcement of foreign award would be refused on the ground that it is contrary to the public policy of India if it is covered by one of the three categorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcement of the award would be refused under section 48(2)(b) in which if such enforcement would be contrary to (i) fundamental policy of Indian law or (ii) the interest of India; or (iii) justice or morality. The Supreme Court clarified that the wider meaning given to the expression public policy of India occurring in section 2(b)(ii) in the case of O.N.G.C. Ltd. vs. Saw Pipes Ltd. (supra) is not applicable where the objection is raised to the enforcement of foreign award under section 48(2)(b). 4(ah) We applied the above triple test to the factual matrix in the instant case. We do not find that the enforcement of the foreign award in the instant case would be contrary to any one of the above said three facets. The only distinguishing feature is that the period of limitation prescribed in Indian Law for money suits is three years, whereas it is six years in Singaporean Law. No other distinction between Indian Law and Singaporean Law has been pointed out in the instant case qua the foreign award that is being sought to be enforced. 4(ai) As a sequitur to the discussions supra, the inescapable and indisputable conclusion is that a foreign award cannot become opposed to publ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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