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TMI Blog2021 (11) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, Central Warehousing Corporation (CWC) issued a Request for Proposal (RFP), inviting tenders for providing Strategic Alliance Management and Operations and Commercial Services at six Inland Container Deports (ICDs)/Container Freight Stations (CFSs). Clause 4.6.5 of the RFP required the operator, to whom the tender was awarded, to submit a minimum yearly return and to commit for a minimum guarantee of business in terms of traffic (referred to, alternatively, as "Minimum Guaranteed Throughput"/"MGT"). In respect of ICD, Loni, the MGT was 18000 TEUs per annum. One TEU represented one (120 foot) container. 4. The appellant was the sole bidder. The financial bid of the appellant was opened on 5th July, 2004. There were various exhibits to the financial bid. Exhibit 10, titled "Format for Commercial Bid", read thus: "FORMAT FOR COMMERCIAL BID NAME OF THE CFS/ICD: LONI A Fixed Fee (lumpsum) per annum B(I) Variable fee per TEU for loaded container entering or leaving the facility B(II) Variable fee per TEU being transported between gateway ports and Inland CFSs/ICDs C. The fixed fee as well as variable fee as quoted by the bidder or as negotiated, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CWC, for the MGT, of Rs. 2,72,90,000/-. 6. The LoI was followed by the execution, between the appellant and the CWC, of a formal Agreement dated 16th February, 2005. Clauses 2.0 to 13.0 set out the obligations of the appellant. Clause 14.0 required customs expenditure, as demanded by customs authorities, to be paid by CWC and reimbursed by the appellant. Clause 15.0 permitted CWC to make business proposals to the appellant, who, subject to the commercial viability thereof, was required to agree to the proposals. Clause 16.0 required the appellant to reimburse, to CWC, the gross salary, perquisites, TA/DA and miscellaneous expenses for the officials of the CWC deputed/posted at ICD, Loni, within 15 days of claim by the CWC. Clause 2.0 of the agreement read thus: "2.0 World's Window confirms that they are willingly undertaking the Management Contract at ICD, Loni on "As is where is" basis after the exact date of commencement of work as defined in para 18 below of this agreement after CWC has constructed the ICD, Loni as per the LOI date 15.10.2004 at the rates finally offered during negotiation by them on 24/8/04 and 14/9/04 and these rates shall form an integral part of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of commencement of the operations except on the containers transported through rail between ICD, Loni and Gateway ports." Clause 17.2 required the appellant to execute, in favour of CWC, an irrevocable bank guarantee, and read thus: "World's Window shall execute in favour of CWC an irrevocable with recourse Bank Guarantee issued by a Nationalized Bank/Scheduled Bank equal to the yearly minimum amount payable (Fixed Fee plus Variable Fee on minimum guaranteed throughput) to CWC. The Bank guarantee would be drawn in favour of Regional Manager, Central Warehousing Corporation, Regional Office, Delhi. The Bank Guarantee shall be produced/renewed/extended by World's Window on yearly basis equivalent to yearly minimum committed amount till the continuation of the management contract and shall be invariable be renewed one month in advance before its expiry every year. The bank guarantee for the fifteenth year would however, carry a validity of two years. The Bank Guarantee shall be encashed by CWC, if the World's Window fails to make the payment of the fixed or/and variable fee, as the case may be by the respective due dates. On encashment of the Bank Guarantee by the CWC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equences envisaged in that regard. These demands were reiterated by the respondent, in communication dated 29th August, 2011 addressed to the appellant, which, further, threatened encashment of the bank guarantees furnished by the appellant, if the appellant continued to remain in default of payment of escalation on the variable fee payable by it. 11. In order to attempt a resolution of the imbroglio thus created, a meeting was convened by the office of the Ministry of Consumer Affairs (MoCA) on 19th February, 2013, which was attended by representatives of the appellant and CWC. The decisions taken in the said meeting were enumerated in a Recorded Note of Discussions, which was forwarded by CWC to the Joint Secretary, MoCA on 22nd February, 2013, with a copy marked to the appellant. Serial no. 2 of the decisions taken in the meeting dated 19th February, 2013, as per the recorded Note of Discussions, envisaged payment, by the appellant, to CWC, "escalation on Variable Fee @ 5% per annum on compoundable basis as per agreement". 12. On 22nd May, 2013, the appellant addressed a communication to the CWC, in which it was stated, inter alia thus: "To, The Regional Manager, Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Majeure shall be the operative cause of such failure to perform the obligations. For the purpose of this clause, Force Majeure shall mean any event or circumstance not within the reasonable control, directly or indirectly, of the Party affected." 18. CWC, vide letters dated 6th May, 2020 and 7th May, 2020, rejected the appellant's requests for exemption from the requirement of payment of fixed fee/variable fee with effect from 1st February, 2020 and from payment of salary on its personnel deputed at the ICD. Further, the communications asserted that any such default in payment, on the part of the appellant, would be viewed as a material breach of the Agreement, inviting coercive action by CWC, including termination of the Agreement and encashment of the bank guarantees furnished by the appellant. 19. First Section 17 Application dated 21st May, 2020: In these circumstances, the appellant filed an application, under Section 17 of the 1996 Act, before the learned arbitrator, on 21st May, 2020. Drawing pointed attention to the hardships being faced in the wake of COVID-2019 pandemic as well as various instructions/circulars and Office Memoranda issued by the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of an addendum to the guidelines dated 24.03.2020 incorporated further exemptions which read as follows: "All transport services - air, rail, roadways - will remain suspended Exceptions: a. Transportation for essential goods only. b. Fire, law and order and emergency services. Ministry by its subsequent guidelines dated 15.04.2020 also provided as follows: "to mitigate hardship to the public, select additional activities will be allowed which will come into effective from 20th April 2020... The movement, loading/unloading of goods/cargo (inter & intra state) is allowed as under: i. All goods traffic will be allowed to ply. ii. Operations of Railway: Transportation of goods and parcel trains iii. Operation of Airports and related facilities for air transport for cargo movement, relief and evacuation. iv. Operations of Seaports and Inland Container Depots (ICDs) for cargo transport, including authorized custom clearing and forwarding agents. The activities / operations carried on in ICD, Loni fall under the exceptions which is clear from all the office memorandums including the addendum dated 25.03.2020 and the guidelines dated 15.04.2020 issued by the Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in Himadri Chemicals case (supra). Facts also reveal that the applicant had not even approached CWC complaining that the activities/operations at ICD, Loni were ever disrupted before April 2020 due to the imposition of lockdown. In my view, since Bank Guarantees are unconditional Bank Guarantees, the Bank is bound to honour the same since CWC has not done any fraudulent act or caused any irretrievable injustice to the applicant. On the other hand as already stated the Applicant had/has carried out the operations/activities at ICD, Loni as usual during the lockdown period since those activities stood excepted from lockdown, in the larger interest of the nation. Tribunal is therefore of the view the force majeure clause is not available to the applicant to be invoked in the facts and circumstances of this case. If the Applicant fails to honor its commitments it is open to CWC to invoke the Bank Guarantees and that the demand notices dated 06.05.2020 and 07.05.2020 issued by CWC cannot be set to be hit by the force majeure clause contained in clause 23 of the Contract or by the office memorandums dated 19.02.2020 or 13.05.2020 issued by the Ministry of Finance, Govt. of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had erroneously assessed the appellant's liability towards payment of variable fee on the basis of 72,580 TEUs per year, as against the actual MGT of 72,000 TEUs by taking the MGT as 6000 TEUs per month, contrary to the Agreement. The Agreement, it was submitted, required MGT to be computed on an annual basis. In computing the MGT on a monthly basis, it was alleged that CWC had infracted the contractual terms. 24.3 The second ground, on which the appellant sought to call into question the legitimacy of the invocation, by CWC, of the bank guarantees furnished by the appellant, was predicated on Clause 17.0 (iv) of the Agreement, which excepted, from the requirement of payment of escalation on variable fee, containers which were transported through Rail between ICD, Loni and Gateway Port. It was alleged that, by application of this Clause, the appellant was not required to pay escalation on variable fee, as the containers had moved by Rail between ICD, Loni and Gateway Port. It was pointed out that the appellant had always paid, with due diligence, the fixed fee with escalation as well as the variable fee without escalation. 24.4 Additionally, the appellant re-agitated its submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 application of appellant: 26.1 Appellant's contentions: 26.1.1 Before the learned arbitrator, the appellant questioned the justification of the realization, by CWC, by invocation and encashment of the bank guarantees, of an amount in excess of the demand of Rs.2.05 crores. Computing its liability to CWC on the basis of an MGT of 72,000 TEUs per annum and by assessing variable fee without escalation, the appellant contended that there was no justification for CWC encashing the bank guarantees. The appellant submitted that, under Clause 4.6.7 of the RFP read with 17.2 of the Agreement, the appellant was required to pay only Fixed Fee and Variable Fee. There was no liability to pay escalation on Variable Fee, especially in view of Clause 17.2(iv). For this reason, the bank guarantees provided by the appellant, too did not cover Variable Fee at the escalated rate. Referring to the communications between the appellant and the respondent, it was submitted that the appellant had always disputed its liability to pay escalation on Variable Fee. The payment of Variable Fee at the escalated rate after 2013, was, therefore, submitted the appellant, under duress/protest as was evidenced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts to the bank, could be passed. It was submitted that the bank guarantees were encashed as fixed fee, for the months of April and March, 2020 and variable fee (with escalation), for the periods of March and April, 2020, were outstanding from the appellant. A total amount of Rs. 1,54,49,778/-, towards outstanding fixed fee and variable fee at escalated rate was, it was submitted, due from the appellant, even after all the bank guarantees had been encashed. Clause 17 (ii) of the agreement was pressed into service, to contend that the appellant, in violation of the said Clause, was paying variable fee on the basis of actual containers, though the Clause required the appellant to pay variable fee on the basis of actual containers or on the basis of MGT calculated on monthly basis, whichever was higher. Since March, 2020, it was contended, the appellant was in breach of this clause. When, with effect from March, 2020, the appellant discontinued payment of variable fee at escalated rate, CWC was constrained to invoke the bank guarantees furnished by the appellant. 26.2.2 The issue of force majeure, it was contended, stood decided by the order dated 17th June, 2020. On facts, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its rights to continue to pay escalation on the variable fee, the matter had been taken up by the Committee set up by the Ministry of Consumer Affairs, Government of India, during which, too, the appellant had agreed to pay escalation on variable fee at the rate of 5% per annum on compoundable basis, (vi) this was followed by a letter dated 22nd May, 2013 from the appellant to CWC, agreeing to release payment towards the variable fee on escalated amount for the period until 30th April, 2013 and (vii) payment on variable fee at escalated rate continued, in fact, to be made by the appellant till February, 2020, when the appellant abruptly discontinued such payment. 27.4 The appellant had, in its counter claim before the learned arbitrator, prayed for refund of the amount paid by way of escalation on the variable fee. The learned arbitrator held, in para 47 of its order dated 15th August, 2020 that the legality of the appellant's claim for refund of the amounts paid by way of escalation, as well as the effect of the agreement dated 19th February, 2013, arrived at with the involvement of the Ministry of Consumer Affairs, would have to be examined while examining the merits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was entirely on Clause 17.2(iv) of the Agreement, for which purpose the appellant had filed a counterclaim, seeking refund of the amounts paid by the appellant towards escalated Variable Fee. The merits of the counter claim could not be decided at the Section 17 stage. Similarly, apropos the dispute regarding the manner in which MGT was to be computed, CWC sought to justify the manner in which it was computing MGT on the basis of Clause 17.0(ii), of the Agreement. The respondent pointed out that Clause 17.0(ii), required Variable Fee to be paid on the actual number of TEUs or the MGT calculated on monthly basis, whichever was higher. CWC contended that it had strictly adhered to this Clause. Wherever the actual number of TEUs was in excess of MGT, the appellant had been billed on the basis of actual number, whereas, where the MGT was in excess of the actual number of TEUs, the appellant had been billed on MGT basis. This controversy, given its nature, could also be adjudicated on merits only at the final stage. 27.7 In these circumstances, the learned arbitrator held that the invocation of the bank guarantees could not be regarded as fraudulent or unjustified. The following pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed that Applicant that non furnishing of the Bank Guarantee for the yearly escalated Variable Fee @5% p.a. would amount to breach of the contract which is also an added reason for encashing the Bank Guarantee as per its terms. Of course the question as to who has committed the breach can be decided only at the final stage of the Arbitration proceedings. 66. In view of the above findings no direction can be given to return the Bank Guarantee to the Bank for their revival especially when the Applicant has paid the escalated Variable Fee @5% p.a. from 2007 to February 2020 but discontinued the same inspite the fact that it had agreed to comply with such a stipulation in the meeting convened by the Ministry, Govt. of India on 19.02.2013." 27.8 The plea of force majeure, advanced by the appellant, was also examined in detail by the learned arbitrator. As already noted hereinabove, the learned arbitrator had taken into account the reliance placed by the appellant, on the OMs dated 19th February, 2020 and 13th May, 2020, of the Ministry of Finance, newspaper clippings, 23 documents filed by the appellant and the charts contained in its application. In his findings, the learned arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antly it had to hire / lease wagons from various CTOs and from 2015 onwards number of CTOs were reduced due to its bitter relationship with them which has nothing to do with the lockdown situation. CWC also referred to Table No.4 in Para 42 of its reply and stated that at ICD, Bawal which is run by the Applicant the volume of business have not gone down. Further it was also pointed out all the ICDs and CFSs were / are getting adequate volume of EXIM business from foreign countries. 69. This Tribunal have already examined the plea of force majeure raised by the Applicant earlier in its application dated 21.05.2020 and the same was rejected vide the Tribunal's order dated 17.06.2020 where in the Tribunal had recorded a clear finding that the activities/operations carried on in ICD, Loni fall under the exception which is clear from all the office memorandums issued by the Govt. of India including the addendum dated 25.03.2020 and the guidelines dated 15.04.2020 issued by the Ministry of Finance. Further it was also noticed that those exemptions were given in the larger public interest. The plea of force majeure raised by the Applicant in that circumstances was rejected by the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , according to Mr. Sibal, held in favour of CWC on the basis of a case which CWC itself never pleaded. 28.1.2 Mr. Sibal also emphasized that, having noted the fact that the bank guarantees furnished by the appellant did not cover Variable Fee at the escalated rate, the learned arbitrator signally erred in refusing to interfere with the encashment, by CWC, of the bank guarantees towards the said enhanced Variable Fee. He submits that, once Clause 17.0(iv) was clear and categorical in its excepting, from the requirement of paying escalation on Variable Fee, containers which moved on rail between Gateway Ports and ICD Loni, it could not lie in the mouth of the respondent to contend that it was, nonetheless, entitled to charge Variable Fee at the escalated rate. He submits that the respondent never sought to contend that this Clause had been novated at any subsequent stage. 28.1.3 On the aspect of force majeure, Mr. Sibal faults the reasoning of the learned arbitrator which, according to him, proceeds solely on the premise that the lockdown, consequent to the COVID pandemic did not affect the movement of containers. He referred to the OMs issued by the Ministry of Finance, to contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs being transported between Gateway Ports and ICD, Loni. The exception in Clause 17.0(iv), submits Mr. Ganguly, pertains to category B (ii) and not to Category B-(i). The application for rectification, moved before the learned arbitrator was in respect of category B (ii), whereas the claim of CWC, against the appellant is under category B (i). As such, Mr. Ganguly submits that the reliance, by Mr. Sibal, on the rejection, by the learned arbitrator, of CWC's rectification application, is thoroughly misplaced. To support this submission, he has drawn my attention to the order dated 13th February, 2020 passed by the learned arbitrator on CWC's rectification application. In any event, submits Mr. Ganguly, even after the passing of the aforesaid order by the learned arbitrator on CWC's rectification application, on 13th February, 2020, the appellant paid escalation on Variable Fee for the month of February, 2020. As such, till February 2020, the appellant was paying Variable Fee @ Rs. 405/ TEU at the escalated rate. 28.2.2 Qua the manner in which Variable Fee was adjusted, Mr. Ganguly draws my attention to Clause 17.1 of the Agreement, which reads thus: "17.1 The first fixed fee pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal award under Section 34 equally apply to a challenge to an interlocutory order under Section 37(ii)(b). In either case, the court has to be alive to the fact that, by its very nature, the 1996 Act frowns upon interference, by courts, with the arbitral process or decisions taken by the arbitrator. This restraint, if anything, operates more strictly at an interlocutory stage than at the final stage, as interference with interlocutory orders could interference with the arbitral process while it is ongoing, which may frustrate, or impede, the arbitral proceedings. 30. Views expressed by arbitrators while deciding applications under Section 17 are interlocutory views. They are not final expressions of opinion on the merits of the case between the parties. They are always subject to modification or review at the stage of final award. They do not, therefore, in most cases, irreparably prejudice either party to the arbitration. Section 17 - like Section 9 - is intended to be a protective measure, to preserve the sanctity of the arbitral process. The pre-eminent consideration, which should weigh with the arbitrator while examining a Section 17 application, is the necessity to preserve t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his aspect and reiterated the law in this regard. Following CRSC Research and Design [2020 SCC OnLine Del 1526], I have also, in my recent decision in Kuber Enterprises v Doosan Power Systems India Pvt. Ltd. [Decision dated 12th November, 2021 in OMP(I)(COMM)364/2021], reiterated this position. I may, with humility, reproduce the following passages from Kuber Enterprises [Decision dated 12th November, 2021 in OMP(I)(COMM)364/2021], which relies on CRSC Research and Design [2020 SCC OnLine Del 1526] : "17.1 Admittedly, the Bank Guarantee provided by the petitioner to the respondents is unconditional. Stay of invocation of an unconditional bank guarantee can be granted only in exceptional circumstances. This Court in SES Energy Services India Ltd. v. Vedanta Limited [2021 SCC OnLine Del 4196] has noted these exceptions and observed thus:- "9. In cases where the bank guarantee is unconditional, the law recognizes only three circumstances in which Courts could injunct invocation or encashment of the bank guarantee. These three circumstances, essentially, dovetail into two, with the pronouncement of Courts in that regard. The three circumstances, in which the Courts may interfere, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ud and irretrievable injustice involved in the case". Vinitec Electronics Private Limited v. HCL Infosystems Limited [MANU/SC/8095/2007] and BSES Ltd.3 hold that special equities, if pleaded as ground for stay of invocation of bank guarantee, should be in the nature of irretrievable injustice. 17.2 While, therefore, there appears to be some fluidity in judicial thinking on the issue of whether the "fraud" element would permeate the other two considerations of "special equities" and "irretrievable injustice", there does appear to be consensus on the position, in law, that fraud, if pleaded, has to be egregious in nature, and that special equities, if pleaded, have to be in the nature of irretrievable injustice. To that extent, therefore, these considerations, to one extent or another, juxtapose." 34. Clearly, therefore, the view, of the learned arbitrator, that no case for injuncting invocation of the bank guarantees by the respondent at that stage existed, does not suffer from any infirmity, let alone patent illegality. 35. No case for interference with the order dated 17th June 2020, therefore, exists. I may note, here, that, in fact, Mr. Sibal concentrated on attempting to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure, 1908, (CPC), as held by the Supreme Court in State Bank of India v Ericsson India Pvt. Ltd. [(2018) 16 SCC 617] and by this Court in, inter alia, Goel Associates v Jivan Binma Rashtriya Avas Samati Ltd. [2004 SCC OnLine Del 874], CV Rao v. Strategic Port Investments KPC Ltd.[(2015) 218 DLT 200 (DB)], Ajay Singh v. Kal Airways Pvt Ltd [(2018) 209 CompCas 154 (Delhi)] and DLF Ltd. v Leighton India Contractors Pvt. Ltd. [(2018) 16 SCC 617] and Tata Advanced Systems Ltd. v. Telexcell Information Systems Pvt. Ltd.[ 2020 SCC OnLine Del 1716]. An order for securing the subject matter of arbitral proceedings, under Section 17(1)(ii)(b), could be passed only where there was positive evidence to indicate that, were the amount not to be secured, the arbitral proceedings would stand frustrated. This, in turn, would require the applicant under Section 17(1)(ii)(b), to demonstrate that the respondent was in such financially impecunious circumstances, as would frustrate the final arbitral award, even if it were to be passed in favour of the applicant. Else, the applicant would have to demonstrate that the respondent was dissipating its assets with a view to frustrate the arbitral proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv), the learned arbitrator has noticed that, despite the said Clause, the appellant continued to pay Variable Fee at the escalated rate till October, 2009. He has noticed the fact that, when the appellant discontinued payment of Variable Fee at the escalated rate, the matter had been taken up in a meeting convened in the office of the Ministry of Consumer Affairs on 19th February, 2013, in which the appellant also participated and that, in the said meeting, one of the decisions taken, to which the appellant assented, was that the appellant would continue to pay Variable Fee at the escalated rate. The subsequent communication dated 22nd May, 2013 by the appellant to CWC also vouchsafed this position. The appellant, moreover, continued to pay Variable Fee at the escalated rate till February, 2020. Though Mr. Sibal seeks to contend that this was under duress and coercion, there is no material, whatsoever, to indicate so. Duress and coercion, in any case, if alleged, has to be proved on facts. As such, the learned arbitrator can hardly be faulted in his observation that, at the Section 17 stage, it was not appropriate to enter into the dynamics of Clause 17.0(iv) of the Agreement vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itate from deciding contrary to the findings returned by the Court on interpretation of terms of the Concession Agreement and of admission, and to which Court, an application under Section 34 of the Act would lie against the award of the Arbitral Tribunal." It may be noted that, having so observed, the Division Bench in DLF Ltd17 reversed the decision of the learned Single Judge, which had directed security of the amount involved in the arbitration. 44. That the province of Section 9 jurisdiction of the Court, and of Section 17 jurisdiction of the arbitrator, are co-equal, stands settled by the recent decision of the Supreme Court in Arcelor Mittal Nippon Steel India Ltd v. Essar Bulk Terminal Ltd. [AIR 2021 SC 4350] 45. I respectfully agree with the above observations of the Division Bench. They squarely apply to the present case. The appellant having willy nilly agreed to pay Variable Fee at the escalated rate, and having continued to do so till February, 2020, the issue of the liability of the appellant to pay the variable fee at the escalated rate was, at the very least, arguable. The learned arbitrator was, therefore, entirely justified in leaving this issue open for consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial filed by his client in the arbitral proceedings. The following passage, from the judgment of the Supreme Court in Sangyong Engineering & Construction Company Ltd. v. NHAI [(2019) 15 SCC 131] neatly encapsulates the legal position regarding the scope of interference by a court with the arbitral award on the ground that it does not consider a plea raised by a party: "61. The Court of Appeal of Singapore, in CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK [2011 SGCA 33], held as follows: ***** "32. Second, it must be noted that a failure by an Arbitral Tribunal to deal with every issue referred to it will not ordinarily render its arbitral award liable to be set aside. The crucial question in every case is whether there has been real or actual prejudice to either (or both) of the parties to the dispute. In this regard, the following passage in Redfern and Hunter correctly summarises the position: "The significance of the issues that were not dealt with has to be considered in relation to the award as a whole. For example, it is not difficult to envisage a situation in which the issues that were overlooked were of such importance that, if they had been dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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