SPEEDY TRIAL = The Louisiana Third Circuit Court of Appeal made a serious error: It did not charge the State’s failure to pay Boyer’s lawyer against the State in determining whether there was a violation of his right to a speedy trial. Because a State bears the ultimate responsibility for funding adequately an indigent’s defense, our precedents require a court to count this delay against the State and not the criminal defendant. Rather than dismiss the writ, I would answer the question on which we granted certiorari and remand for the Louisiana court to conduct the Barker analysis anew. I respectfully dissent from the Court’s judgment of dismissal.

_________________
_________________
(Slip Opinion) Cite as: 569 U. S. ____ (2013) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 11–9953
JONATHAN EDWARD BOYER, PETITIONER v.
LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
LOUISIANA, THIRD CIRCUIT
[April 29, 2013]
PER CURIAM.
The writ of certiorari is dismissed as improvidently
granted.
It is so ordered. _________________
_________________
Cite as: 569 U. S. ____ (2013) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 11–9953
JONATHAN EDWARD BOYER, PETITIONER v.
LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
LOUISIANA, THIRD CIRCUIT
[April 29, 2013]
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, concurring.
We granted certiorari in this case to decide
“[w]hether a 
state’s failure to fund counsel for an indigent defendant for 
five years, particularly where failure was the direct result
of the prosecution’s choice to seek the death penalty, 
should be weighed against the state for speedy trial purposes.”
Pet. for Cert. i. The premise of that question is
that a breakdown in Louisiana’s system for paying the
attorneys representing petitioner, an indigent defendant
who was charged with a capital offense, caused most of
the lengthy delay between his arrest and trial.
Because the
record shows otherwise, I agree that the writ of certiorari
was improvidently granted.

In February 2002, petitioner and his brother were 
hitchhiking in Calcasieu Parish, Louisiana. Petitioner 
robbed and murdered a driver who picked them up.
 After 
enlisting his brother to help him cover up the crime, 
petitioner fled to Florida, where he was captured about a
month later. 
The evidence of petitioner’s guilt was overwhelming. 
He gave the police a detailed statement describing the murder; his brother, an eyewitness, agreed to 
testify about the crime; multiple other members of petitioner’s family told police that they had heard petitioner
confess; and petitioner’s fingerprints were found in the 
2 BOYER v. LOUISIANA ALITO, J., concurring
victim’s truck.
Louisiana prosecutors announced that they would seek 
the death penalty, and the state court appointed Thomas
Lorenzi, an experienced trial attorney, to serve as petitioner’s primary defense counsel.
For the next five years,
Mr. Lorenzi led petitioner’s defense, but he was assisted at 
all times by at least one highly credentialed 
but less experienced attorney from the Louisiana Capital Assistance
Center (LCAC).
The attorneys from the LCAC were paid by the State,
but there was confusion about which branch of the state
government was responsible for paying Mr. Lorenzi’s fees.
The trial court promptly scheduled a hearing on that preliminary matter,
 but the hearing was repeatedly put off
at the urging of the defense. Over the course of more 
than three years, the defense requested that the hearing 
be continued on eight separate occasions, causing a total
delay of approximately 20 months. The trial court also 
issued several other continuances without any objection
from the defense, delaying the hearing an additional 15 
months. 
And just when it seemed that the hearing would 
finally be held, Hurricane Rita forced the Calcasieu Parish 
Courthouse to close. 
The trial court held the hearing on March 27, 2006, and 
at that time it became clear that Mr. Lorenzi’s fees could 
not be fully paid until the start of the next fiscal year. 
Ten 
months later, the State broke the resulting impasse by
announcing that it would no longer seek the death pen- 
alty. 
That greatly reduced the complexity and cost of peti- 
tioner’s defense and allowed his case to proceed. 
Mr. 
Lorenzi withdrew, and attorneys from the LCAC accepted
the role of lead counsel.
From that point, the case proceeded at a plodding pace. 
Petitioner filed voluminous pretrial motions, took multiple 
interlocutory appeals, and twice demanded the recusal of 
the trial judge. 
The trial court halted proceedings for 11 
Cite as: 569 U. S. ____ (2013) 3 ALITO, J., concurring
months after concluding that petitioner was temporarily
incompetent to stand trial.
At last, despite petitioner’s
contention that he needed still more time to prepare, the 
trial began on September 22, 2009.
 A jury found petitioner guilty of second-degree murder and armed robbery.
In sum, the record shows that
the single largest share
of the delay in this case was the direct result of defense
requests for continuances,
that other defense motions
caused substantial additional delay, and
that much of the
rest of the delay was caused by events beyond anyone’s
control.
It is also quite clear that the delay caused by the
defense likely worked in petitioner’s favor.
The state court
observed that petitioner’s assertions of his speedy trial
right were “more perfunctory than aggressive.”
 2010–693, p. 34 (La. App. 3 Cir. 2/2/11), 56 So. 3d 1119, 1143.
And
what started out as a very strong case of first-degree
murder ended up, after much delay, in a conviction for
lesser offenses. 
The dissent would ignore what the record plainly shows
based largely on the Louisiana Court of Appeals’ obser- 
vation that 
“[t]he majority of the seven-year delay was 
caused by the ‘lack of funding.’”
Id., at 1142. See post, at 5, 8 (opinion of SOTOMAYOR, J.).
But when this statement
is read in context,
what it most likely means is not that
the delay in question was caused by the State’s failure to
provide funding but simply that the delay was attributable
to the funding issue.
And as noted, most of this delay was
caused by the many defense requests for continuances of
hearings on the issue of funding.
If the defense had not
sought and obtained those continuances, the trial might
well have commenced at a much earlier date—and might
have reached a conclusion far less favorable to the
defense.*
——————
*The dissent also claims that “Louisiana conceded below that most of the delay resulted from the lack of funding for Boyer’s defense.” 
Post, 4 BOYER v. LOUISIANA ALITO, J., concurring
We have before us the same record that was before the
Court of Appeals, and the record simply does not support
the proposition that much—let alone “most”—of the delay
was caused by the State’s failure to fund the defense.
Having taken up this case on the basis of a mistaken
factual premise, I agree with the Court’s decision to dismiss the writ as improvidently granted.
——————
at 8; see post, at 5, n. 3.
But the dissent’s only citation is to the State’s 
argument in the alternative that even if the legislature’s failure to
appropriate funds for the defense caused the delay, that delay should
not count against the prosecution for purposes of Louisiana’s statutory 
speedy trial requirement. The State in no way conceded that it caused 
the delay in this case. Indeed, the very next paragraph of the State’s 
brief argued that “the defendant sought to delay the inception of his 
trial via his funding motion.” 
App. 317a. _________________
_________________ Cite as: 569 U. S. ____ (2013) 1 SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 11–9953
JONATHAN EDWARD BOYER, PETITIONER v.
LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
LOUISIANA, THIRD CIRCUIT
[April 29, 2013]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.
Jonathan Boyer waited in jail for more than seven years 
from the date of his arrest until the day his case went to 
trial. 
The Louisiana Court of Appeal rejected Boyer’s 
claim that this delay violated his right to a speedy trial.
In doing so, the court found that most of the delay in
Boyer’s case was caused by the State’s failure to pay for 
his defense due to a “‘funding crisis’ experienced by the
State of Louisiana.”
2010–693, p. 32 (La. App. 3 Cir.2/2/11), 56 So. 3d 1119, 1142.
 Nevertheless, the court did 
not weigh that part of the delay against the State in assessing the merits of Boyer’s claim,
 reasoning that it was 
“‘out of the State’s control.’”
Id., at 1145.
We granted certiorari to decide 
whether a delay caused 
by a State’s failure to fund counsel for an indigent’s defense should be weighed against the State in determining 
whether there was a deprivation of a defendant’s Sixth 
Amendment right to a speedy trial. 568 U. S. ___ (2012). 
Rather than dismiss the writ as improvidently granted,
 I would simply address this question.
Our precedents provide a clear answer:
Such a delay should weigh against the
State.
It is important for States to understand that they
have an obligation to protect a defendant’s constitutional
right to a speedy trial.
I respectfully dissent. 2 BOYER v. LOUISIANA 
SOTOMAYOR, J., dissenting 
I
The decision below describes the facts as follows. On
February 4, 2002, Boyer and his brother were walking by
the side of the road in Sulphur, Louisiana. Bradlee Marsh
stopped his truck and gave the two men a ride. Once
inside the truck, Boyer demanded money. When Marsh
refused, Boyer shot him three times in the head and then
took some cash and a silver chain from his person. Marsh
eventually died of his wounds. On March, 8, 2002, Boyer
was arrested in Jacksonville, Florida, and was indicted
in Louisiana for first-degree murder on June 6, 2002, in
violation of La. Rev. Stat. Ann. §14:30 (West 1997). Louisiana sought the death penalty.
Boyer filed a motion to determine the source of funds for
his defense in November 2002. A hearing on the motion
was held on August 15, 2003, which was continued until a
later date. From that point on, “the only matters that
came before the trial court concerned the source of funding.” 56 So. 3d, at 1142. Boyer and the State filed numerous continuances over the next two years that further
postponed the funding hearing.
On July 7, 2005, Boyer filed a motion to quash the indictment as a violation of his right to a speedy trial under
the Louisiana Constitution, the State’s speedy trial statute, and the Sixth Amendment.1 This hearing was itself
postponed. Among other things, disruptions caused by
Hurricanes Katrina and Rita resulted in further delay.
When a hearing on the motion to quash was finally held,
defense counsel moved to dismiss Boyer’s federal speedy
——————
1
Under the relevant statute, “no trial shall be commenced . . . [i]n 
capital cases after three years from the date of the institution of the
prosecution.”
La. Code Crim. Proc. Ann., Art. 578(1) (West 2003).
The 
trial court may dismiss the indictment upon the expiration of the 3-year 
period.
 See Art. 581. Boyer brought this motion to quash soon after
the limitations period under the statute had elapsed. 
See 56 So. 3d, at 1142. Cite as: 569 U. S. ____ (2013) 3
SOTOMAYOR, J., dissenting
trial claim without prejudice.2
 The trial court denied the 
motion on November 20, 2006, reaching only Boyer’s state law claims. 
It concluded that under Louisiana’s speedy 
trial statute, such delays could not be attributed to the 
prosecution because they were “beyond [its] control” and
rested instead with the “legislature.” 
App. 703a.
The 
Louisiana Third Circuit Court of Appeal affirmed. 
56 So. 3d, at 1142.
On May 21, 2007, Louisiana amended the indictment to
reduce the charge to second-degree murder, which is a
noncapital offense.
See La. Rev. Stat. Ann. §14:30.1(B)
(West 1997).
The same day, the State filed a bill of information charging Boyer with armed robbery with a firearm, a violation of §14:64. 

On January 22, 2008, Boyer filed a second motion to 
quash the indictment and bill of information on the 
grounds that the pretrial delay violated his right to a 
speedy trial under the Louisiana Constitution and the 
Sixth Amendment. 
The trial court denied the motion. On 
July 19, 2008, the court found Boyer incompetent to stand
trial, but later found his competency restored on April 15, 
2009. 
A trial commenced on September 22, 2009, more 
than seven years after Boyer’s arrest. 
A week later, the 
jury entered a verdict finding Boyer guilty of second degree murder and armed robbery.

The Louisiana Third Circuit Court of Appeal affirmed 
Boyer’s conviction, finding, as relevant here, that there 
had been no violation of Boyer’s right to a speedy trial
under the Sixth Amendment. 
56 So. 3d, at 1139–1145.
Applying our decision in Barker v. Wingo, 407 U. S. 514 
(1972),
 the court recognized that the more than seven
years from the date of arrest to trial was “presumptively 
—————— 
2
Boyer’s counsel moved to dismiss the constitutional claim because 
he lacked the “resources . . . to be able to prove prejudice [in] an evidentiary hearing.” 
App. 688a. 4 BOYER v. LOUISIANA SOTOMAYOR, J., dissenting
prejudicial.” 56 So. 3d, at 1144.
It then went on to consider
the reason for the delay, and found that the “majority of
the . . . delay was caused by the ‘lack of funding’” for Boyer’s defense.
 Id., at 1142.
The court, however, declined to weigh this period of the
delay against the State at all for the purposes of its analysis under Barker. 56 So. 3d, at 1145.
 It found that “[t]he
first three years he was incarcerated, [while Boyer] was 
charged with first degree murder . . . the progression of 
the prosecution was ‘out of the State’s control.’” Ibid.
(emphasis added).
The Louisiana Supreme Court denied
review. 2011–0769 (La. 1/20/12), 78 So. 3d 138, 139.
II
A 
The Sixth Amendment provides that “[i]n all criminal 
prosecutions, the accused shall enjoy the right to a speedy 
. . . trial.” In Barker, we explained that whether there has
been a violation of a defendant’s right to a speedy trial 
turns on a balancing test that “compels courts to approach
speedy trial cases on an ad hoc basis.” 407 U. S., at 530. 
We identified four factors that courts should consider as 
part of that inquiry. These include the “[l]ength of delay,
the reason for the delay, the defendant’s assertion of his 
right, and prejudice to the defendant.” Ibid. 
While each of the factors is relevant, “[t]he flag all litigants seek to capture is the second factor, the reason for 
delay.”
United States v. Loud Hawk, 474 U. S. 302, 315
(1986).
 We have explained that “different weights should
be assigned to different reasons.” Barker, 407 U. S., at
531. “A deliberate attempt to delay the trial in order to
hamper the defense” is particularly serious, and “should
be weighted heavily against the government.” Ibid. “A 
more neutral reason such as negligence or overcrowded
courts should be weighted less heavily but nevertheless 
should be considered since the ultimate responsibility for Cite as: 569 U. S. ____ (2013) 5
SOTOMAYOR, J., dissenting
such circumstances must rest with the government rather
than with the defendant.” Ibid. At the other end of the 
spectrum, “a valid reason, such as a missing witness,
should serve to justify appropriate delay.”
Ibid.
B
The Louisiana court found that the “majority of the
seven-year delay” in Boyer’s case was caused by the “‘lack
of funding’” made available for the defense, see 56 So. 3d,
at 1142, and I defer to that factual determination, see
Hernandez v. New York, 500 U. S. 352, 366 (1991) (plurality
opinion).3
The question is whether, once the Louisiana
court found that most of the delay in Boyer’s case was
caused by the State’s failure to fund Boyer’s defense, the
court was required to weigh that period of the delay
against the State for the purposes of its analysis under
Barker. The court’s conclusion that for the first three
years of Boyer’s case, the “progression of the prosecution
was ‘out of the State’s control’” makes clear that it did not.
56 So. 3d, at 1145.
 Our reasoning in Barker, however, requires that a delay
caused by a State’s failure to provide funding for an indigent’s defense must count against the State, and not the
accused. As noted, we held there that even a more “neutral reason” for a delay such as “overcrowded courts”
should be weighed against the State, because “the ultimate responsibility for such circumstances” lies squarely
with the state system as a whole. 407 U. S., at 531. Ap-
——————
3
Louisiana previously conceded that the delay was caused by a lack
of funding. See Brief in Opposition to Defendant’s Writ Application in
No. KW–07–00085 (La. App. 3 Cir.), App. 317a (“In this case, because
the defendant was without properly funded counsel for so long, the
State simply could not ethically or legally bring him to trial. The indigent defense representation and funding situation is beyond the
ability of the State to control”); see also Brief for Louisiana in No. KA–
10–693 etc. (La. App. 3 Cir.), App. 198a (same). 6 BOYER v. LOUISIANA
SOTOMAYOR, J., dissenting
plying similar logic, we recently indicated that “[d]elay
resulting from a systemic breakdown in the public defender
system, could be charged to the State” as well. Vermont v.
Brillon, 556 U. S. 81, 94 (2009) (internal quotation marks
and citation omitted).
A State’s failure to provide adequate funding for an
indigent’s defense that prevents a case from going to trial
is no different. Where a State has failed to provide funding for the defense and that lack of funding causes a delay,
the defendant cannot reasonably be faulted. See Barker,
407 U. S., at 531. Placing the consequences of such a
delay squarely on the State’s shoulders is proper for the
simple reason that an indigent defendant has no control
over whether a State has set aside funds to pay his lawyer
or fund any necessary investigation. The failure to fund
an indigent’s defense is not as serious as a deliberate
effort by a State to cause delay. Ibid. But States routinely
make tradeoffs in the allocation of limited resources, and
it is reasonable that a State bear the consequences of
these choices.
The Louisiana court’s analysis under Barker was therefore based on a critical misapprehension of our precedents:
It did not attribute responsibility for the delay to the
State, and thus incorrectly applied the factor that we have
found to be especially significant. See Loud Hawk, 474
U. S., at 315. We have explained that, in every case,
“courts must still engage in a difficult and sensitive balancing process,” and “none of the four factors [is] either a
necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 407 U. S., at
533. Because the Barker factors must be viewed collectively, this error could very well have affected the outcome. “[T]he balance arrived at in close cases ordinarily
would not prompt this Court’s review,” but the Louisiana
court’s misattribution of the reason for the delay was a
“fundamental error . . . that calls for this Court’s correc-Cite as: 569 U. S. ____ (2013) 7
SOTOMAYOR, J., dissenting
tion.” Brillon, 556 U. S., at 91.
Our precedents therefore point the way to a straightforward resolution of this case. I take no view as to how
the other elements of the Barker inquiry should be weighed,
or the ultimate issue whether the delay violated Boyer’s
right to a speedy trial. Instead, I would decide only
the narrow question on which we granted certiorari and
hold that, under Barker, any delay that results from a
State’s failure to provide funding for an indigent’s defense
weighs against the State. On remand, the Louisiana court
could conduct the Barker analysis under the correct legal
standard.
III
Louisiana’s primary arguments are either unpersuasive
or are more appropriately addressed on remand. They
provide no barrier to the Court’s resolution of the question
presented.
Louisiana’s procedures require that capital defendants
be appointed two capital-qualified attorneys. See La. Sup.
Ct. Rule 31(A)(1)(a) (2012). In Louisiana’s view, the fact
that there may have been insufficient funds for a second
lawyer did not contribute to the delay. See Brief for Respondent 31–33. It contends that these procedural rules
did not create an affirmative right to two lawyers, so that
Boyer could have forgone the second lawyer at any time
and gone to trial if he had so desired. See id., at 32 (citing
La. Sup. Ct. Rules 31(A)(1)(a), (B)).
The Louisiana court treated it as a given that Boyer
could not proceed to trial during the period of the funding
crisis. We therefore have no need to address how these
state-law procedures might have affected the overall
reason for the delay. Cf. Mullaney v. Wilbur, 421 U. S.
684, 690–691 (1975); General Motors Corp. v. Romein, 503
U. S. 181, 187 (1992). To the extent Louisiana disputes
the lower court’s conclusions about how state-law princi-8 BOYER v. LOUISIANA
SOTOMAYOR, J., dissenting
ples influenced the delay, these points could have been
addressed in state court on remand. And in fact, Boyer
alleged that there were substantial costs other than the
appointment of a second lawyer, such as the expenses
associated with pretrial investigation, that necessitated
additional resources before any counsel—one or two—
could have gone to trial. App. 377a.
Louisiana also contends that the delay was mostly
attributable to Boyer, because he failed to move the case
forward. Brief for Respondent 28–38. The Louisiana
court did not so find. And Boyer disputes this view; he
contends that statutory procedures and their time limitations under Louisiana law prevented him from bringing
his speedy trial claim any earlier than he did. Tr. of Oral
Arg. 28. In any event, the question of how Boyer’s
diligence, or lack thereof, affects the overall balance of
the Barker factors would be an appropriate subject for
remand.
JUSTICE ALITO’s concurrence largely adopts Louisiana’s
arguments, and contends that the majority of the delay
should be attributed to Boyer’s requests for continuances
in the trial court, and not the funding crisis. See ante, at
3. It is a mistake to second-guess the state court’s findings
on this point, particularly because Louisiana conceded
below that most of the delay resulted from the lack of
funding for Boyer’s defense. See n. 3, supra. Contrary to
the concurrence’s assertion, see ante, at 3–4, n. 1, this
concession was not made arguendo. The most reasonable
reading of the state court’s opinion is that it simply accepted Louisiana’s concession when it found that the
“majority of the seven-year delay was caused by the ‘lack
of funding.’” 56 So. 3d, at 1142. There is no reason this
Court should comb through the record to allow Louisiana
to turn its back on this prior position, and risk substituting this Court’s judgment for that of a state court on a
question that is closely intertwined with state procedural Cite as: 569 U. S. ____ (2013) 9
SOTOMAYOR, J., dissenting
rules. These matters of state law are better suited for the
Louisiana court to address in the first instance on remand.
Louisiana’s arguments accordingly provide no reason to
decline to address the question of federal law on which we
granted certiorari and which the parties argued.
IV
The Court’s failure to resolve this case is especially
regrettable, because it does not seem to be an isolated one.
Rather, Boyer’s case appears to be illustrative of larger,
systemic problems in Louisiana.
The Louisiana Supreme Court has suggested on multiple occasions that the State’s failure to provide funding for
indigent defense contributes to extended pretrial detentions. See State v. Citizen, 2004–1841, pp. 14–17 (La.
4/1/05), 898 So. 2d 325, 336–338; State v. Wigley, 624
So. 2d 425, 429 (La. 1993); State v. Peart, 621 So. 2d 780,
791 (La. 1993). There is also empirical evidence supporting that assessment. In New Orleans Parish, for example,
a recent study found that more than 22 percent of pending
criminal cases were more than one year old. Metropolitan Crime Commission, 2011 Orleans Parish Judicial Accountability Report 1 (July 2012). Another study found
that the average time between felony arrest and trial in
Calcasieu Parish, the jurisdiction where Boyer was tried,
was 501 days in the years before Boyer’s arrest. M. Kurth
& D. Burckel, Defending the Indigent in Southwest Louisiana 27 (2003). More broadly, the public defender system
seems to be significantly understaffed. See E. Lewis & D.
Goyette, Report on the Evaluation of the Office of the
Orleans Public Defenders 28–29 (July 2012) (noting that
in New Orleans, public defenders handle approximately
277 felonies per year, which is nearly twice the number
recommended by ABA standards (citing ABA Formal
Opinion 06–441 (2006)));
 National Legal Aid & Defender
Association, In Defense of Public Access to Justice,
An 10 BOYER v. LOUISIANA
SOTOMAYOR, J., dissenting
Assessment of Trial-Level Indigent Defense Services in
Louisiana 40 Years After Gideon 35, and n. 119 (2004)
(estimating that public defenders in Avoyelles Parish
handle approximately 792 felony cases per year, or 528
percent of the ABA caseload standard).
Against this backdrop, the Court’s silence in this case is
particularly unfortunate. Conditions of this kind cannot
persist without endangering constitutional rights.
* * *
The Louisiana Third Circuit Court of Appeal made a 
serious error:
 It did not charge the State’s failure to pay
Boyer’s lawyer against the State in determining 
whether
there was a violation of his right to a speedy trial. 
Because a State bears the ultimate responsibility for funding 
adequately an indigent’s defense, our precedents require a
court to count this delay against the State and not the
criminal defendant. 
Rather than dismiss the writ, I would answer the 
question on which we granted certiorari and remand for 
the Louisiana court to conduct the Barker analysis anew.
I respectfully dissent from the Court’s judgment of 
dismissal. 

ARBITRATION ACT = The law is well settled that where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable. Once the power has been exercised under the Arbitration Agreement, there is no power left to, once again, refer the same disputes to arbitration under Section 11 of the 1996 Act, unless the order closing the proceedings is subsequently set aside. = when the Arbitral Tribunal is already seized of the disputes between the parties to the Arbitration Agreement, constitution of another Arbitral Tribunal in respect of those same issues which are already pending before the Arbitral Tribunal for adjudication, would be without jurisdiction.= In view of the language of Article 20 of the Arbitration Agreement which provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL, Devas was entitled to invoke the Rules of Arbitration of the ICC for the conduct of the arbitration proceedings. Article 19 of the Agreement provided that the rights and responsibilities of the parties thereunder would be subject to and construed in accordance with the laws of India. There is, therefore, a clear distinction between the law which was to operate as the governing law of the Agreement and the law which was to govern the arbitration proceedings. Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated there under could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the Arbitration Agreement and the said Rules. Arbitration Petition No.20 of 2011 under Section 11(6) of the 1996 Act for the appointment of an Arbitrator must, therefore, fail and is rejected, but this will not prevent the Petitioner from taking recourse to other provisions of the aforesaid Act for appropriate relief. The Arbitration Petition is, therefore, dismissed.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 20 OF 2011
ANTRIX CORP. LTD. ...PETITIONER
Vs.
DEVAS MULTIMEDIA P. LTD. ...RESPONDENT
J U D G M E N T
ALTAMAS KABIR, CJI.
1. An application under Section 11(4) read with
Section 11(10) of the Arbitration and Conciliation
Act, 1996, hereinafter referred to as "the 1996
Act", has given rise to an important question of
law relating to the scope and ambit of the powersPage 2
2
of the Chief Justice under Section 11(6) of the
said Act. In view of the importance of the
question, which has arisen, the matter which was
being heard by the delegatee of the Chief Justice,
has been referred to a larger Bench for
determination thereof.
2. M/s. Antrix Corporation Limited, the Petitioner
herein, a Government Company incorporated under the
Companies Act, 1956, and engaged in the marketing
and sale of products and services of the Indian
Space Research Organization (ISRO), entered into an
Agreement with the Respondent, Devas Multimedia P.
Ltd., hereinafter referred to as "Devas" on 28th
January, 2005, for the lease of Space Segment
Capacity on ISRO/ Antrix S-Band Spacecraft.
Article 19 of the Agreement empowered the
Petitioner to terminate the Agreement in certain
contingencies. It also provided that the AgreementPage 3
3
and the rights and responsibilities of the parties
thereunder would be subject to and construed in
accordance with the laws of India. In other words,
the domestic law would be the governing law of the
Agreement.
3. Article 20 of the Agreement deals specially
with arbitration and provides that in the event any
dispute or difference arises between the parties as
to any clause or provision of the Agreement, or as
to the interpretation thereof, or as to any account
or valuation, or as to rights and liabilities,
acts, omissions of any party, such disputes would
be referred to the senior management of both the
parties to resolve the same within 3 weeks, failing
which the matter would be referred to an
Arbitral Tribunal comprising of three Arbitrators.
It was provided that the seat of arbitration would
be New Delhi in India. It was also provided thatPage 4
4
the arbitration proceedings would be held in
accordance with the rules and procedures of the
International Chamber of Commerce (ICC) or
UNCITRAL.
4. On 25th February, 2011, the Petitioner Company
terminated the Agreement with immediate effect in
terms of Article 7(c) read with Article 11(b) of
the Agreement in keeping with the directives of the
Government, which it was bound to follow under
Article 103 of its Articles of Association. By its
letter dated 28th February, 2011, the Respondent
objected to the termination. On 15th April, 2011,
the Petitioner Company sent to the Respondent
Company a cheque for Rs. 58.37 crores refunding the
Upfront Capacity Reservation Fee received from
Devas. The said cheque was, however, returned by
Devas on 18th April, 2011, insisting that the
Agreement was still subsisting. Page 5
5
5. In keeping with the provisions of Article 20 of
the Arbitration Agreement, the Petitioner wrote to
the Respondent Company on 15th June, 2011,
nominating its senior management to discuss the
matter and to try and resolve the dispute between
the parties. However, without exhausting the
mediation process, as contemplated under Article
20(a) of the Agreement, Devas unilaterally and
without prior notice to the Petitioner, addressed a
Request for Arbitration to the ICC International
Court of Arbitration on 29th June, 2011, seeking
resolution of the dispute arising under the
Agreement. Through the unilateral Request for
Arbitration, Devas sought the constitution of an
Arbitral Tribunal in accordance with the ICC Rules
of Arbitration, hereinafter referred to as "the ICC
Rules", and nominated one Mr. V.V. Veedar, Queen's
Counsel, as its nominee Arbitrator, in accordance
with the ICC Rules. Page 6
6
6. According to the Petitioner, it is only on 5th
July, 2011, that it came to learn that Devas had
approached the ICC and had nominated Mr. V.V.
Veedar, as its nominee Arbitrator, upon receipt of
a copy of the Respondent's Request for Arbitration
forwarded by the ICC. By the said letter, the
Petitioner was also invited to nominate its nominee
Arbitrator.
7. Instead of nominating its Arbitrator, the
Petitioner, by its letter dated 11th July, 2011,
once again requested Devas to convene the Senior
Management Team meet on 27th July, 2011, in terms
of the Agreement. Pursuant to such request, a
meeting of the Senior Management Team was held, but
Devas insisted that the parties should proceed to
arbitration and did not discuss the issues in
accordance with Article 20(a) of the Agreement.
Despite the attempt to resolve the dispute throughPage 7
7
the Senior Management Team and despite the fact
that Devas had already invoked the Arbitration
Agreement by making a Request for Arbitration to
the ICC and had also appointed its nominee
Arbitrator under the ICC Rules, the Petitioner
appointed Mrs. Justice Sujata V. Manohar, as its
Arbitrator and called upon Devas to appoint its
nominee Arbitrator within 30 days of receipt of the
notice. Consequently, while Devas had invoked the
jurisdiction of the ICC on 29th June, 2011, the
Petitioner subsequently invoked the Arbitration
Agreement in accordance with the UNCITRAL Rules on
the ground that Devas had invoked ICC Rules
unilaterally, without allowing the Petitioner to
exercise its choice. Having invoked the
Arbitration Agreement under the UNCITRAL Rules, the
Petitioner called upon the Respondent to appoint
its Arbitrator within 30 days of receipt of the
notice.Page 8
8
8. On 5th August, 2011, the Petitioner wrote to
the Secretariat of the ICC Court stating that it
had appointed its Arbitrator, in accordance with
the Agreement between the parties, asserting that
in view of Article 20 of the Agreement, the
arbitral proceedings would be governed by the
Indian law, viz., the Arbitration and Conciliation
Act, 1996.
9. The Respondent did not reply to the
Petitioner's letter dated 30th July, 2011.
However, the International Chamber of Commerce, by
its letter dated 3rd August, 2011, responded to the
Petitioner's letter dated 30th July, 2011, and
indicated as follows :
"We refer to our letter dated 18
July, 2011, and remind the
parties that the issues raised
regarding the arbitration clause
would shortly be submitted to the
Court for consideration. All
comments submitted by the partiesPage 9
9
will be brought to the Court's
attention. In this regard, any
final comments from the parties
may be submitted to us by 5
August, 2011.
Should the Court decide that this
arbitration shall proceed
pursuant to Article 6(2) of the
Rules, any decision as to the
jurisdiction of the Arbitral
Tribunal shall be taken by the
Arbitral Tribunal itself."
10. It is in such circumstances that the
application under Section 11(4) read with Section
11(10) of the 1996 Act, being Arbitration Petition
No. 20 of 2011, came to be filed by the Petitioner,
inter alia, for a direction upon Devas to nominate
its Arbitrator in accordance with the Agreement
dated 28th January, 2005, and the UNCITRAL Rules,
to adjudicate upon the disputes, which had arisen
between the parties and to constitute the Arbitral
Tribunal and to proceed with the Arbitration.Page 10
10
11. The said application came to be listed before
one of us, Surinder Singh Nijjar, J., the Designate
of the Chief Justice, who was of the view that the
questions involved in the application were required
to be heard by a larger Bench. The parties were
requested to propose the questions of law to be
considered by the Larger Bench and the same are as
follows:
"i) Where the arbitration clause
contemplates the application of
either ICC Rules or UNCITRAL
Rules after the constitution of
the Tribunal, could a party
unilaterally proceed to invoke
ICC to constitute the Tribunal
and proceed thereafter?
ii) Whether the judgment of this
Hon'ble Court in TDM
Infrastructure v. UE Development
reported in (2008) 14 SCC 271
lays down the correct law with
reference to the definition of
International Commercial
Arbitration?
iii) Whether the jurisdiction of the
Court under Section 11 extendsPage 11
11
to declaring as invalid the
constitution of an arbitral
tribunal purportedly under an
arbitration agreement, especially, where the tribunal has
been constituted by an
Institution purportedly acting
under the Arbitration agreement?
iv) Whether the jurisdiction of an
arbitral tribunal constituted by
an institution purportedly
acting under an arbitration
agreement can be assailed only
before the Tribunal and in
proceedings arising from the
decision or award of such
Tribunal and not before the
Court under Section 11 of the
Act?
v) Whether, once an arbitral
tribunal has been constituted,
the Court has jurisdiction under
Section 11 of the Act to
interfere and constitute another
Tribunal?
vi) Whether an arbitration between
two Indian companies could be an
international commercial arbitration within the meaning of
Section 2(1)(f) of the Act if
the management and control of
one of the said companies is
exercised in any country other
than India?Page 12
12
vii) Whether the petition is
maintainable in light of the
reliefs claimed and whether the
conditions precedent for the
exercise of jurisdiction under
Section 11 of the Act are
satisfied or not?"
12. While the matter was pending, most of the seven
questions raised were resolved. However, the most
important issue as to whether Section 11 of the
1996 Act could be invoked when the ICC Rules had
already been invoked by one of the parties, remains
to be decided.
13. On behalf of the Petitioner, reliance was
sought to be placed on the decision of this Court
in Sumitomo Heavy Industries Ltd. Vs. ONGC Ltd. &
Ors. [(1998) 1 SCC 305], wherein different laws
that could apply to an arbitral relationship had
been explained, namely :
(i) The proper law of the underlying contract
is the law governing the contract whichPage 13
13
creates the substantive rights and
obligations of the parties with regard to
the contract.
(ii) The proper law of the arbitration agreement
is the law governing the rights and
obligations of the parties arising from
the arbitration agreement.
(iii) The proper law of the reference is the
law governing the contract which
regulates the individual reference to
arbitration.
(iv) The curial law is the law governing the
arbitration proceedings and the manner in
which the reference has to be conducted.
It governs the procedural powers and
duties of the arbitrators, questions ofPage 14
14
evidence and the determination of the
proper law of the contract.
14. It was submitted that in the instant case, the
proper law of the contract is the Indian law and
the proper law of the Arbitration Agreement is the
Arbitration and Conciliation Act, 1996.
Accordingly, matters relating to the constitution
of the Arbitral Tribunal would be governed by
Sections 10 to 15 of the 1996 Act. It was pointed
out by learned counsel that the parties had agreed
that the arbitration proceedings could be conducted
either in accordance with the rules and procedures
of the ICC or UNCITRAL. The choice of the procedure
to be adopted by the Arbitral Tribunal in
conducting the arbitration was left to the
determination of the parties under Section 19(2) of
the 1996 Act. It was submitted that the choice of
the applicable procedural law could be exercisedPage 15
15
only after the constitution of the Arbitral
Tribunal and not at any stage prior thereto.
15. It was also submitted that in addition to the
clear provision of Section 2(2) of the 1996 Act and
the Agreement between the parties that the place of
arbitration would be New Delhi, the Agreement would
be expressly governed by Indian law under Article
19 of the Agreement. Accordingly, as was held in
National Thermal Power Corporation Vs. Singer
Company [(1992) 3 SCC 551], the proper law of the
contract would be the Indian law which would govern
the arbitration Agreement. It was submitted that
the cardinal test, as suggested by Dicey in his
"Conflict of Laws", stood fully satisfied and that
the governing law of the arbitration would be the
law chosen by the parties, or in the absence of any
agreement, the law of the country in which the
arbitration is held. Learned counsel submittedPage 16
16
that according to Dicey, the proper law of the
arbitration is normally the same as the proper law
of the contract. It is only in exceptional cases
that it is not so, even where the proper law of the
contract is expressly chosen by the parties.
16. However, as indicated hereinbefore, the
question with which we are concerned is whether the
Arbitration Agreement contemplates the application
of Section 11 of the 1996 Act after the ICC Rules
had been invoked by one of the parties which also
appointed its nominee Arbitrator. Equally important
is the question whether Section 11 of the 1996 Act
empowers the Chief Justice to constitute a Tribunal
in supersession of the Tribunal already in the
stage of constitution under the ICC Rules,
notwithstanding the fact that one of the parties
had proceeded unilaterally in the matter. Learned
counsel for the Petitioner urged that since thePage 17
17
Arbitration Agreement contemplates the constitution
of an Arbitral Tribunal without any reference to
the ICC Rules or the ICC Court, the recourse taken
by Devas to approach the ICC Court was without any
basis and was contrary to the express agreement
between the parties. Learned counsel also referred
to the decision of this Court in SBP & Co. vs.
Patel Engineering Ltd. & Anr. [(2005) 8 SCC 618],
in this regard.
17. Learned counsel further urged that the issue as
to whether once an Arbitral Tribunal has been
constituted, the Chief Justice has jurisdiction
under Section 11 of the 1996 Act to constitute
another Tribunal, presupposes that an Arbitral
Tribunal has been validly constituted and is not a
Tribunal constituted by one party acting entirely
in contravention of the Arbitration Agreement
between the parties. It was contended that tillPage 18
18
such time as the question of jurisdiction was
considered by the Court under Section 11, the
question of a separate Tribunal being constituted
by the International Chamber of Commerce did not
arise. According to learned counsel, in fact, the
constitution of the Arbitral Tribunal by the ICC
Court amounted to usurpation of the exclusive
jurisdiction of the Chief Justice under Section 11
of the 1996 Act. It was submitted that initially
the Court would have to be moved under Section 11
of the 1996 Act and it would have to examine
whether it would have the jurisdiction to entertain
the request and whether the condition for exercise
of its powers to take necessary measures to secure
the appointment of the Arbitrator, at all existed.
If the answer to both the issues was in the
affirmative, the Court was duty bound to appoint
the Arbitrator. Page 19
19
18. On the other hand, on behalf of Devas it was
submitted that the choice of an institution under
whose auspices the arbitration was to be held,
would have to be made once the Arbitral Tribunal
had been constituted. It was contended that what
was intended by the Arbitration Agreement was the
formation of an ad-hoc Tribunal which would have to
follow one of the two procedures prescribed.
19. It was submitted that Devas had already invoked
the Arbitration Agreement and had sought the
constitution of an Arbitral Tribunal, after having
chosen its nominee Arbitrator, in accordance with
the ICC Rules of Arbitration. It was further
submitted that since the Arbitral Tribunal had been
constituted under the ICC Rules, any objection as
to whether or not the Tribunal had been properly
constituted would have to be raised before the
Arbitral Tribunal itself. It is only in suchPage 20
20
objection that the Arbitral Tribunal would have to
decide as to whether a Tribunal was required to be
constituted before application of the ICC or
UNCITRAL Rules, inasmuch as, according to the
Agreement, the Claimant in the arbitration has the
right to choose any of the two Rules when
commencing the arbitration.
20. Reliance was placed on Section 16 of the 1996
Act which incorporates the Kompetenz Kompetenz
principle within its scope. Since the arbitration
was to be governed by Part I of the 1996 Act, the
Tribunal would have complete authority over all
issues, including the validity of its constitution.
21. Reference was also made to the decision of this
Court in Gas Authority of India Ltd. vs. Keti
Construction (I) Ltd. & Ors.[(2007) 5 SCC 38],
wherein the aforesaid principle contained in
Section 16 of the 1996 Act had been referred to.Page 21
21
Learned counsel submitted that in arriving at the
aforesaid decision, this Court had fully considered
its decision in SBP & Co. (supra). It was submitted
that the question regarding the validity of the
constitution of the Arbitral Tribunal, upon a
proper construction of Article 20 of the Agreement
would, therefore, have to be left for decision to
the said Tribunal.
22. On the question as to whether the Chief Justice
or his Designate would be entitled in exercise of
their jurisdiction under Section 11 of the 1996
Act, to question the validity of the appointment of
an Arbitral Tribunal, both the parties were ad idem
that they could not. It was urged that the decision
in SBP & Co. (supra) does not contemplate such a
course of action. In this regard, reference was
also made by learned counsel for the Respondent to
the decision of this Court in Sudarsan Trading Co.Page 22
22
vs. Government of Kerala & Anr. [(1989) 2 SCC 38],
wherein it was held that once there is no dispute
as to the contract, the interpretation thereof is
for the Arbitrator and not the Courts, and the
Court cannot substitute its own decision for that
taken by the learned Arbitrator. It was urged that
Section 5 of the 1996 Act also supports such
construction as it bars any interference by the
Court, except as provided in the Act. Learned
counsel also submitted that as had been held by
this Court in McDermott International Inc. vs. Burn
Standard Co. Ltd. & Ors.[(2006) 11 SCC 181], after
the 1996 Act came into force, it was for the party
questioning the authority of the Arbitrator to
raise such question at the earliest point of time
after the commencement of the Arbitration
proceedings, under Section 16 of the 1996 Act, and
a decision thereupon could be challenged under
Section 34 of the said Act. Page 23
23
23. On behalf of Devas, it was also contended that
the issue raised relating to jurisdiction falls
outside the first category of cases, on account of
the fact that the Petitioner's claim that the
Tribunal must be constituted first before
application of either of the ICC Rules or the
UNCITRAL Rules, essentially involves the question
as to whether the Arbitration clause excludes the
applicability of the Rules prior to the
constitution of the Tribunal and that the
constitution of the Tribunal is, therefore,
reserved for a decision under Section 11 of the
1996 Act. Learned counsel for the Respondent
submitted that in the facts of the case, the Chief
Justice, in exercise of his power under Section
11(6) of the 1996 Act, was not entitled to question
the validity of the appointment of the Arbitral
Tribunal and the instant Arbitration Petition was
liable to be dismissed. Page 24
24
24. As indicated hereinbefore, the question which
we are called upon to decide is whether when one of
the parties has invoked the jurisdiction of the
International Chamber of Commerce and pursuant
thereto an Arbitrator has already been appointed,
the other party to the dispute would be entitled to
proceed in terms of Section 11(6) of the 1996 Act.
25. In order to answer the said question, we will
have to refer back to the provisions relating to
arbitration in the agreement entered into between
the Petitioner and the Respondent on 28th January,
2005. Article 19 in clear terms provides that the
rights and responsibilities of the parties under
the Agreement would be subject to and construed in
accordance with the laws in India, which, in
effect, means the Arbitration and Conciliation Act,
1996. Article 20 of the Agreement specifically
deals with arbitration and provides that disputesPage 25
25
between the parties regarding the provisions of the
Agreement or the interpretation thereof, would be
referred to the Senior Management of both the
parties for resolution within three weeks, failing
which the dispute would be referred to an Arbitral
Tribunal comprising of three Arbitrators. It was
also provided that the seat of arbitration would be
New Delhi in India and the arbitration would be
conducted in accordance with the rules and
procedures of the International Chamber of Commerce
or UNCITRAL.
26. The Respondent has invoked the provisions of
Article 20 of the Agreement and has approached the
ICC for the appointment of an Arbitral Tribunal in
accordance with the rules of arbitration and,
pursuant thereto, the Respondent appointed its
nominee Arbitrator. In fact, after the Respondent
had invoked the arbitration clause, the PetitionerPage 26
26
came to know of the same from the Respondent's
request for arbitration which was forwarded by the
ICC to the Petitioner on 5th July, 2011. By the
said letter, the Petitioner was also invited by the
ICC to nominate its nominee Arbitrator, but, as
mentioned hereinbefore, instead of nominating its
Arbitrator, the Petitioner once again requested
Devas to convene the Senior Management Meet on 27th
July, 2011, in terms of the Agreement.
Simultaneously, the Petitioner appointed a former
Judge of this Court, Mrs. Sujata V. Manohar, as its
Arbitrator and informed the ICC Court accordingly.
However, disputes were also raised by the
Petitioner with the ICC that since the Agreement
clearly intended that the arbitration proceedings
would be governed by the Indian law, which was
based on the UNCITRAL model, it was not available
to the Respondent to unilaterally decide which of
the rules were to be followed. It was onlyPage 27
27
thereafter that the Petitioner took recourse to the
provisions of Section 11(4) of the 1996 Act, giving
rise to the questions which have been set out
hereinbefore in paragraph 11, of which only one has
survived for our consideration.
27. Section 11 of the 1996 Act is very clear as to
the circumstances in which parties to a dispute,
and governed by an Arbitration Agreement, may apply
for the appointment of an Arbitrator by the Chief
Justice of the High Court or the Supreme Court.
For the sake of reference, the relevant provisions
of Section 11 are reproduced hereinbelow :-
"11. Appointment of arbitrators.
(1) A person of any nationality may be an
arbitrator, unless otherwise agreed by the
parties.
(2) Subject to sub-section (6), the
parties are free to agree on a procedure
for appointing the arbitrator or
arbitrators.Page 28
28
(3) Failing any agreement referred to in
sub-section (2), in an arbitration with
three arbitrators, each party shall appoint
one arbitrator, and the two appointed
arbitrators shall appoint the third
arbitrator who shall act as the presiding
arbitrator.
(4) If the appointment procedure in subsection (3) applies and-
(a) a party fails to appoint an
arbitrator within thirty days from the
receipt of a request to do so from the
other party; or
(b) the two appointed arbitrators fail
to agree on the third arbitrator
within thirty days from the date of
their appointment,
the appointment shall be made, upon request
of a party, by the Chief Justice or any
person or institution designated by him.
(5) Failing any agreement referred to in
sub-section (2), in an arbitration with a
sole arbitrator, if the parties fail to
agree on the arbitrator within thirty days
from receipt of a request by one party from
the other party to so agree the appointment
shall be made, upon request of a party, by
the Chief Justice or any person or
institution designated by him.
(6) Where, under an appointment procedure
agreed upon by the parties,-Page 29
29
(a) a party fails to act as required
under that procedure; or
(b) the parties, or the two appointed
arbitrators, fail to reach an
agreement expected of them under that
procedure; or
(c) a person, including an
institution, fails to perform any
function entrusted to him or it under
that procedure,
a party may request the Chief Justice or
any person or institution designated by him
to take the necessary measure, unless the
agreement on the appointment procedure
provides other means for securing the
appointment.
(7) A decision on a matter entrusted by
sub-section (4) or sub-section (5) or subsection (6) to the Chief Justice or the
person or institution designated by him is
final."
28. As will be evident from the aforesaid
provisions, when any of the parties to an
Arbitration Agreement fails to act in terms
thereof, on the application of the other party, the
Chief Justice of the High Courts and the SupremePage 30
30
Court, in different situations, may appoint an
Arbitrator.
29. In the instant case, Devas, without responding
to the Petitioner's letter written in terms of
Article 20 of the Arbitration Agreement,
unilaterally addressed a Request for Arbitration to
the ICC International Court of Arbitration for
resolution of the disputes arising under the
Agreement and also appointed its nominee
Arbitrator. On the other hand, the Petitioner
appointed its nominee Arbitrator with the caveat
that the arbitration would be governed by the 1996
Act and called upon Devas to appoint its nominee
Arbitrator under the said provisions. As Devas did
not respond to the Petitioner's letter dated 30th
July, 2011, the Petitioner filed the application
under Section 11(6) of the 1996 Act. Page 31
31
30. In the instant case, the Arbitration Agreement
provides that the arbitration proceedings would be
held in accordance with the rules and procedures of
the International Chamber of Commerce or UNCITRAL.
Rightly or wrongly, Devas made a request for
arbitration to the ICC International Court of
Arbitration on 29th June, 2011, in accordance with
the aforesaid Agreement and one Mr. V.V. Veedar was
appointed by Devas as its nominee Arbitrator. By
the letter written by the International Chamber of
Commerce on 5th July, 2011, the Petitioner was
required to appoint its nominee Arbitrator, but it
chose not to do so and instead made an application
under Section 11(6) of the 1996 Act and also
indicated that it had appointed Mrs. Justice Sujata
V. Manohar, as its Arbitrator in terms of Article
20(9) of the Agreement. Page 32
32
31. The matter is not as complex as it seems and in
our view, once the Arbitration Agreement had been
invoked by Devas and a nominee Arbitrator had also
been appointed by it, the Arbitration Agreement
could not have been invoked for a second time by
the Petitioner, which was fully aware of the
appointment made by the Respondent. It would lead
to an anomalous state of affairs if the appointment
of an Arbitrator once made, could be questioned in
a subsequent proceeding initiated by the other
party also for the appointment of an Arbitrator.
In our view, while the Petitioner was certainly
entitled to challenge the appointment of the
Arbitrator at the instance of Devas, it could not
do so by way of an independent proceeding under
Section 11(6) of the 1996 Act. While power has
been vested in the Chief Justice to appoint an
Arbitrator under Section 11(6) of the 1996 Act,
such appointment can be questioned under Section 13Page 33
33
thereof. In a proceeding under Section 11 of the
1996 Act, the Chief Justice cannot replace one
Arbitrator already appointed in exercise of the
Arbitration Agreement. It may be noted that in
case of Gesellschaft Fur Biotechnologische Forschun
GMBH Vs. Kopran Laboratories Ltd. & Anr. [(2004) 13
SCC 630], a learned Single Judge of the Bombay High
Court, while hearing an appeal under Section 8 of
the 1996 Act, directed the claims/disputes of the
parties to be referred to the sole arbitration of a
retired Chief Justice with the venue at Bombay,
despite the fact that under the Arbitration
Agreement it had been indicated that any disputes,
controversy or claim arising out of or in relation
to the Agreement, would be settled by arbitration
in accordance with the Rules of Reconciliation of
the International Chamber of Commerce, Paris, with
the venue of arbitration in Bombay, Maharashtra,
India. This Court held that when there was aPage 34
34
deviation from the methodology for appointment of
an Arbitrator, it was incumbent on the part of the
Chief Justice to assign reasons for such departure.
32. Sub-Section (6) of Section 11 of the 1996 Act,
quite categorically provides that where the parties
fail to act in terms of a procedure agreed upon by
them, the provisions of Sub-Section (6) may be
invoked by any of the parties. Where in terms of
the Agreement, the arbitration clause has already
been invoked by one of the parties thereto under
the I.C.C. Rules, the provisions of Sub-section (6)
cannot be invoked again, and, in case the other
party is dissatisfied or aggrieved by the
appointment of an Arbitrator in terms of the
Agreement, his/its remedy would be by way of a
petition under Section 13, and, thereafter, under
Section 34 of the 1996 Act. Page 35
35
33. The law is well settled that where an
Arbitrator had already been appointed and
intimation thereof had been conveyed to the other
party, a separate application for appointment of an
Arbitrator is not maintainable. Once the power has
been exercised under the Arbitration Agreement,
there is no power left to, once again, refer the
same disputes to arbitration under Section 11 of
the 1996 Act, unless the order closing the
proceedings is subsequently set aside. 
In Som Datt
Builders Pvt. Ltd. Vs. State of Punjab [2006 (3)
RAJ 144 (P&H)], the Division Bench of the Punjab &
Haryana High Court held, and
we agree with the
finding, that
when the Arbitral Tribunal is already
seized of the disputes between the parties to the
Arbitration Agreement, constitution of another
Arbitral Tribunal in respect of those same issues
which are already pending before the Arbitral
Page 36
36
Tribunal for adjudication, would be without
jurisdiction.
34. In view of the language of Article 20 of the
Arbitration Agreement which provided that the
arbitration proceedings would be held in accordance
with the rules and procedures of the International
Chamber of Commerce or UNCITRAL,
 Devas was entitled
to invoke the Rules of Arbitration of the ICC for
the conduct of the arbitration proceedings.
Article 19 of the Agreement provided that the
rights and responsibilities of the parties
thereunder would be subject to and construed in
accordance with the laws of India. 
There is,
therefore, a clear distinction between the law
which was to operate as the governing law of the
Agreement and the law which was to govern the
arbitration proceedings. 
Once the provisions of the
ICC Rules of Arbitration had been invoked by Devas,
Page 37
37
the proceedings initiated thereunder could not be
interfered with in a proceeding under Section 11 of
the 1996 Act. 
The invocation of the ICC Rules
would, of course, be subject to challenge in
appropriate proceedings but not by way of an
application under Section 11(6) of the 1996 Act.

Where the parties had agreed that the procedure for
the arbitration would be governed by the ICC Rules,
the same would necessarily include the appointment
of an Arbitral Tribunal in terms of the Arbitration
Agreement and the said Rules. 
Arbitration Petition
No.20 of 2011 under Section 11(6) of the 1996 Act
for the appointment of an Arbitrator must,
therefore, fail and is rejected, but this will not
prevent the Petitioner from taking recourse to
other provisions of the aforesaid Act for
appropriate relief. 
Page 38
38
35. The Arbitration Petition is, therefore,
dismissed. 
36. Having regard to the facts of the case, each
party shall bear its own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(SURINDER SINGH NIJJAR)
New Delhi
Dated: May 10, 2013.

ARBITRATION ACT= The matter was, thereafter, taken up by the designate Judge who came to a finding that the agreement dated 24.05.2005 was not legal and valid and, therefore, the disputes between the parties arising out of the said agreement could not be referred to an arbitrator. The application under Section 11(6) of the 1996 Act was, therefore, dismissed. 9. It is the said decision of the designate Judge, which is the subject matter of challenge in these appeals. The issue regarding the continued existence of the arbitration agreement, notwithstanding the main agreement itself being declared void, was considered by the 7-Judge Bench in SBP & Co. (supra) and it was held that an arbitration agreement could stand independent of the main agreement and did not necessarily become otiose, even if the main agreement, of which it is a part, is declared void. has to first decide his own jurisdiction and whether the party concerned has approached the right High Court.; whether there is an arbitration agreement and as to whether the person who has made the request before him, is a party to such agreement. ; whether the claim was a dead one or a long-barred claim, that was sought to be resurrected. = The above views expressed by the 7-Judge Bench and by the learned Single Judge are sufficient to dispose of these appeals. In the light of what has been indicated hereinbefore, we have no hesitation in setting aside the impugned judgment and the order of the designated Judge once again and directing that the matter be again considered de novo in the light of the observations made hereinabove and the various decisions cited at the Bar.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4596 OF 2013
[Arising out of SLP(C)No.7334 of 2010]
M/s Today Homes & Infrastructure
Pvt. Ltd. ...Appellant
Vs.
Ludhiana Improvement Trust & Anr. ...Respondents
WITH
C.A. No.4597 of 2013 @ SLP(C)No.11778/2010,
C.A. No.4598 of 2013 @ SLP(C)No.10795/2010,
C.A. No.4595 of 2013 @ SLP(C)No.26173/2010.
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Special Leave Petition (Civil) No.7334 of 2010
and Special Leave Petition (Civil) No.11778 of 2010
have been filed by M/s Today Homes and
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Infrastructure Pvt. Ltd. and Mapletree Properties
Pvt. Ltd. respectively, against a common judgment
and order dated 08.10.2009, passed by the Punjab &
Haryana High Court in Arbitration Case No.76 of
2007. Special Leave Petition (Civil) No.10795 of
2010 has been separately filed by M/s Mapletree
Properties Pvt. Ltd. against the judgment and order
dated 26.03.2010, passed by the aforesaid High
Court in R.A. No.49-CII/2010 (of M) in Arbitration
Case No.76 of 2007. In addition I.A. No.2 of 2010
has been filed by M/s Mapletree Properties Pvt.
Ltd. in Special Leave Petition (Civil) No.26173 of
2010 filed by Ludhiana Improvement Trust for
vacating the interim order of stay passed on
15.09.2010, or modification thereof. I.A. No.3 of
2010 has been filed by Ludhiana Improvement Trust
in the said Special Leave Petition to bring on
record certain additional documents.
Both the
said IAs have been taken up for hearing along with
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the four Special Leave Petitions, as referred to
hereinabove.
 Leave granted in all the Special
Leave Petitions.
2. The Ludhiana Improvement Trust, hereinafter
referred to as "the Trust", the Appellant in the
appeal arising out of SLP(C) No. 26173 of 2010, was
constituted under the Punjab Town Improvement Act,
1922, hereinafter referred to as "the 1922 Act",
for the planned development of the city of
Ludhiana. 
For the purpose of construction of the
City Centre in Ludhiana, the Trust invited bids by
a Request of Proposal document dated 15.03.2005,
with the intention of entering into a Joint-Venture
with developers in the private sector.
After
evaluation of the bids, M/s. Today Homes and
Infrastructure Pvt. Ltd., the Appellant in the
appeal arising out of SLP(C) No. 7334 of 2010, was
found to be the highest bidder and a Letter of
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Intent was issued in its favour on 18.05.2005, for
development of the City Centre, Ludhiana.
3. The records indicate that after the Letter of
Intent was issued in its favour,
 M/s. Today Homes
and Infrastructure Pvt. Ltd. deposited Rs. 3.72
crores with the Trust as Performance Security.
According to the agreement arrived at between the
parties, the successful bidder would ultimately be
required to pay to the Trust Rs.371.12 crores. 
The
records further reveal that possession of an area
measuring 25.59 acres was handed over to the
successful bidder by the Trust on 24.05.2005 by way
of Concession Agreement. 
A Tripartite Agreement
was signed on 25.04.2005, between M/s. Today Homes
and Infrastructure Pvt. Ltd., the Trust and the
HDFC Bank. 
In terms of the said agreement, the
entire proceeds from booking of the saleable areas
were required to be deposited in the Joint Escrow
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Account of the Company and the Trust with the HDFC
Bank, of which 30% was to be credited directly to
the account of the Trust and 70% was to be
deposited to the account of the Company.
Disputes
arose regarding the deposits made in the 
Escrow Account and 
on 12.09.2006, the Trust issued a
letter to the Company seeking an explanation
regarding the allegations. 
On the very next day, a
reply was sent on behalf of the Company denying the
allegations and indicating that its accounts could
be scrutinised, and, if the explanation was not
found to be satisfactory, the dispute could be
referred to arbitration. 
In fact, on 14.09.2006,
the Trust wrote to M/s. Today Homes and
Infrastructure Pvt. Ltd. indicating that it was
going to appoint an arbitrator within the next two
days.
 However, before the expiry of the said
period, on 15.09.2006, the Company filed an
application before the Chief Justice of the Punjab
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and Haryana High Court under Section 11(6) of the
Arbitration and Conciliation Act, 1996, hereinafter
referred to as "the 1996 Act", being Arbitration
Application No. 263 of 2006.
4. From the submissions made on behalf of the
parties, it transpires that on 6.10.2006, a meeting
was held between the Principal Secretary and
officers of the Trust and the representatives of
the Company, wherein it was agreed that instead of
the Company and the Trust sharing revenue from the
project in the ratio of 70:30, the constructed area
would be shared on the same basis.
 It was also
agreed that the demarcation of the operations
involved would be done jointly by the architects of
the parties and all bookings prior to 15.10.2006,
would be honoured and would go to the share of the
Company. 
It was also decided that a Supplementary
Agreement incorporating the said terms and
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conditions should also be executed.
 Instead of
completing the said agreement, the Trust filed its
response to the Arbitration Application No.263 of
2006, raising a plea, for the first time, that the
agreement executed with the Company was void.
Such
plea was raised two years after the agreement was
entered into and allowing a substantial portion of
the construction of the City Centre, Ludhiana, to
be completed, without any protest, after the Trust
had received a sum of Rs.23 crores as its share of
the sale/lease proceeds from over 300 customers.
5. Faced with the above situation, the Company
wrote a letter to the Trust on 08.06.2007, invoking
the provisions of Article 17.1(a) and (b) of the
Agreement dated 24.05.2005, for appointment of an
arbitrator. 
It was also indicated in the letter
that in the event no reply was received, the
Company would nominate its arbitrator. 
Since no
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reply was received from the Trust, the Company
wrote to the Trust on 30.06.2007, indicating that
it had appointed its arbitrator.
The Trust
responded to the said letter by raising an
objection that since the matter was sub judice
before the Chief Justice of the High Court, no
arbitrator could have been appointed by the
Company.
6. On 22.08.2007, Arbitration Application No.263 of
2006, was taken up by the Chief Justice of the
Punjab and Haryana High Court, but the same was
dismissed as withdrawn with liberty to file a fresh
petition. 
On the same day, a fresh petition was
filed under Section 11(6) of the 1996 Act, being
Arbitration Case No. 76 of 2007. On 04.04.2008,
the Chief Justice of the aforesaid High Court
appointed retired Chief Justice of India, Shri R.C.
Lahoti, as Arbitrator to adjudicate upon the
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disputes between the parties. Arbitration
proceedings were, thereafter, held on 22.04.2008,
when the Company filed its Statement of Claims.
The next date for arguments, after completion of
pleadings, was fixed on 02.06.2008.
7. In the meantime, however, SLP(C) No. 10550 of
2008, filed by the Trust challenging the
appointment of the arbitrator, in Arbitration Case
No.76 of 2007, came up for consideration before
this Court by way of Civil Appeal No.6104 of 2008.

Having regard to the decision of the 7-Judge Bench
in SBP & Co. Vs. Patel Engineering Ltd. and Another
[(2005) 8 SCC 618], this Court set aside the order
of the Chief Justice and remitted the matter for a
fresh decision in keeping with the decision of the
7-Judge Bench of this Court in the above case.
8. The challenge to the appointment of the
arbitrator by the Chief Justice of the Punjab and
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Haryana High Court was that the agreement itself
was void having been entered into in suspicious
circumstances.
 It had been contended that since
the main agreement, which contained the arbitration
agreement, was itself void, the arbitration
agreement could not survive independent of the main
agreement. 
It was also contended that the said
question was required to be left to the learned
arbitrator in terms of Section 16 of the 1996 Act.
Such a course of action, however, did not find
favour with this Court, and as indicated
hereinbefore, the matter was remanded to the Chief
Justice of the Punjab and Haryana High Court for a
fresh decision. 
The matter was, thereafter, taken
up by the designate Judge who came to a finding
that the agreement dated 24.05.2005 was not legal
and valid and, therefore, the disputes between the
parties arising out of the said agreement could not
be referred to an arbitrator.
The application
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under Section 11(6) of the 1996 Act was, therefore,
dismissed.
9. It is the said decision of the designate Judge,
which is the subject matter of challenge in these
appeals.
10. On behalf of M/s. Today Homes and
Infrastructure Pvt. Ltd., 
it was urged that while
considering the matter on remand, the designate
Judge treated the matter as if he was deciding a
suit, but without adducing evidence. 
Mr. Uday U.
Lalit, learned Senior Advocate submitted that
 in
the parameters for consideration of an application
under Section 11(6) of the 1996 Act set out by this
Court in the decision rendered by the 7-Judge Bench
in SBP & Co. (supra), this Court had intended a
preliminary enquiry on the existence of an
arbitration agreement and a dispute, which was
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required to be considered by an arbitrator to be
appointed. 
11. Mr. Lalit urged that
 Section 11(6) of the above
Act nowhere contemplates an application filed
thereunder to be gone into in intricate detail by
framing issues and deciding the same without taking
any evidence. Mr. Lalit submitted that the essence
of the issue before the Arbitrator, was lost sight
of by the designated Judge. 
12. An attempt was made by Mr. Salil Sagar, learned
Senior Advocate, appearing for the Trust, to
counter the submissions made by Mr. Lalit and Mr.
H. Devarajan, learned Advocate, appearing for the
appellants in the appeals arising out of SLP (C)
Nos. 11778 of 2010 and 10795 of 2010.
The learned
counsel supported the decision of the learned
designate Judge to distinguish the decision
rendered by this Court in SBP & Co. (supra) and the
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facts of the present case.
Mr. Sagar insisted that
once the main agreement had been found to be void,
the contents thereof, including any arbitration
agreement, was also rendered void. 
The learned
counsel submitted that
the arbitration clause
contained in the arbitration agreement dated
24.05.2005, stood automatically dissolved upon the
agreement itself being held to be void.
Mr. Sagar,
therefore, urged that
 the appointment of an
arbitrator by the designated Judge in Arbitration
Case No.76 of 2007 was void and was liable to be
set aside.
13. We have carefully considered the submissions
made on behalf of the respective parties and
we are
of the view that the learned designated Judge
exceeded the bounds of his jurisdiction, as
envisaged in SBP & Co. (supra). 
In our view, the
learned designated Judge was not required to
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undertake a detailed scrutiny of the merits and demerits of the case, 
almost as if he was deciding a
suit.
The learned Judge was only required to
decide such preliminary issues such as jurisdiction
to entertain the application, the existence of a
valid arbitration agreement, whether a live claim
existed or not, for the purpose of appointment of
an arbitrator.
By the impugned order, much more
than what is contemplated under Section 11(6) of
the 1996 Act was sought to be decided, without any
evidence being adduced by the parties.
The issue
regarding the continued existence of the
arbitration agreement, notwithstanding the main
agreement itself being declared void, was
considered by the 7-Judge Bench in SBP & Co.
(supra) and it was held that an arbitration
agreement could stand independent of the main
agreement and did not necessarily become otiose,
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even if the main agreement, of which it is a part,
is declared void.
14. The same reasoning was adopted by a member of
this Bench (S.S. Nijjar, J.), while deciding the
case of
Reva Electric Car Company Private Limited
Vs. Green Mobil [(2012) 2 SCC 93], wherein the
provisions of Section 16(1) in the backdrop of the
doctrine of kompetenz kompetenz were considered and
it was inter alia held that under Section 16(1),
the legislature makes it clear that while
considering any objection with regard to the
existence or validity of the arbitration agreement,
the arbitration clause, which formed part of the
contract, had to be treated as an agreement
independent of the other terms of the contract.
Reference was made in the said judgment to the
provisions of Section 16(1)(b) of the 1996 Act,
which provides that even if the arbitral tribunal
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concludes that the contract is null and void, it
should not result, as a matter of law, in an
automatic invalidation of the arbitration clause.
It was also held that Section 16(1)(a) of the 1996
Act presumes the existence of a valid arbitration
clause and mandates the same to be treated as an
agreement independent of the other terms of the
contract. By virtue of Section 16(1)(b) of the
1996 Act, the arbitration clause continues to be
enforceable, notwithstanding a declaration that the
contract was null and void.
15. In our view, the learned designated Judge
misunderstood the scope of the order dated
14.10.2008, passed in the earlier proceedings and
the provisions of Section 16 of the 1996 Act in
going into a detailed examination regarding the
merits of the case and the existence of an
arbitration agreement and in holding that once the
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main agreement between the parties was declared
void, the entire contents thereof, including any
arbitration clause that may have been incorporated
in the main agreement, were rendered invalid.
16. It may be profitable to remind ourselves of the
observations made by the 7-Judge Bench in SBP & Co.
(supra), regarding what the Chief Justice is really
required to decide on an application being made to
him under Section 11(6) of the 1996 Act.
 In
paragraph 39 of the judgment, it has been stated
that obviously the Chief Justice has to first
decide his own jurisdiction and 
whether the party
concerned has approached the right High Court.
 He
also has to decide 
whether there is an arbitration
agreement and as to whether the person who has made
the request before him, is a party to such
agreement. 
Their Lordships further indicated that
it was necessary to mention that the learned
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arbitrator could also decide the question as to
whether the claim was a dead one or a long-barred
claim, that was sought to be resurrected. 
Summing
up its views, in paragraph 47 of the judgment, 
the
7-Judge Bench, while holding that the power
exercised by the Chief Justice of the High Court or
the Chief Justice of India under Section 11(6) of
the 1996 Act is not an administrative power but a
judicial one, also held that the Chief Justice or
the designated Judge would have the right to decide
the preliminary aspects, as indicated herein before.
17. The above views expressed by the 7-Judge Bench
and by the learned Single Judge are sufficient to
dispose of these appeals. 
In the light of what has
been indicated hereinbefore, we have no hesitation
in setting aside the impugned judgment and the
order of the designated Judge once again and
directing that the matter be again considered de
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novo in the light of the observations made
hereinabove and the various decisions cited at the
Bar.
18. The appeals are, accordingly, disposed of along
with the interlocutory applications. Having regard
to the peculiar facts of this case, the parties
will bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(SURINDER SINGH NIJJAR)
New Delhi
Dated: May 10, 2013.