REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3885 OF 2017
(Arising out of SLP (C) No. 34009 of 2013)
IMAX CORPORATION ... APPELLANT
VERSUS
M/S E-CITY ENTERTAINMENT (I) Pvt. LTD. ... RESPONDENT
1
2 JUDGMENT
S. A. BOBDE, J.
Leave granted.
2. The appellant-Imax Corporation has challenged the interim order
dated 10.06.2013 passed by the High Court of Judicature at Bombay in Notice
of Motion No.2560 of 2008 in the Arbitration Petition (Lodging) No.525 of
2008.
3. By the aforementioned order, the High Court held that the petition
under Section 34 of the Arbitration and Conciliation Act, 1996 (for short,
"the Arbitration Act") filed by the respondent-M/S E-City Entertainment (I)
Pvt. Ltd. against two partial final awards dated 11.02.2006, 24.08.2007,
and third final award dated 27.03.2008 was maintainable.
The appellant had objected to the maintainability of the petition under
Section 34 of the Arbitration Act on the ground that the arbitration clause
excluded the applicability of Part-I which contains the said section.
4. The only issue before us is whether the petition under Section 34 of
the Arbitration Act is maintainable before a court in India, and in this
case, the Bombay High Court.
5. On 28.09.2000, the appellant entered into an agreement with the
respondent for a supply of large format projection systems for cinema
theatres to be installed in theatres all across India. Clause 14 of the
agreement contained an arbitration clause which reads as follows:
"This Agreement shall be governed by and construed according to the laws of
Singapore, and the parties attorn to the jurisdiction of the courts of
Singapore. Any dispute arising out of this master agreement or concerning
the rights, duties or liabilities of E-City or Imax hereunder shall be
finally settled by arbitration pursuant to the ICC Rules of Arbitration."
6. On 16.06.2004, the appellant filed a request for arbitration with the
ICC, and claimed damages. On 08.10.2004, the ICC i.e. the chosen arbitral
forum fixed London as the place of arbitration i.e. the juridical seat of
arbitration, after consulting the parties.
FIRST PARTIAL FINAL AWARD
7. On 11.02.2006, the first partial final award was made in favour of
the appellant declaring that the respondent was in breach of the agreement
and therefore liable for damages. The award stated that the decision on the
other issues, including damages/costs would be reserved for a future award.
8. The aforementioned declaration was made after observing in the award
that the court of the ICC had decided to fix London as the juridical seat
of arbitration in accordance with the powers vested in the court under
Article 14(1) of the ICC Rules. The observation read as follows:
"As well be noticed, no provision was made for a venue for any arbitration
contemplated by Clause 14, but subsequently the court of the ICC decided on
the 8th of October, 2004 to fix London as the juridical seat of the
arbitration in accordance with the powers vested in the court under Article
14 of the ICC Rules. Accordingly, this is an arbitration to which Part-I of
the English Arbitration Act 1996 applies."
9. The appellant filed its statement of damages before
the Arbitral Tribunal. The respondent filed its statement
of defence.
10. On 05.09.2006 the respondent objected that the appellant has no legal
status and the law firm representing them is not authorized to pursue the
arbitration. In that application, the respondent stated as follows:
"The seat of this arbitration is London. Therefore, English law determines
the effect of any want of capacity suffered by "Imax Ltd" under the
Canadian law as
a result of its amalgamation into Imax Corporation with effect from 1st
January, 2001."
SECOND PARTIAL FINAL AWARD
11. On 24.08.2007, the Arbitral Tribunal passed the second partial award
rejecting the above objection filed by the respondent. By this award, the
tribunal determined the quantum of damages payable to the appellant. This
award was also made in London, the juridical seat of this arbitration. A
sum of $9,406,148.31 was awarded to the appellant.
THIRD FINAL AWARD
12. The Arbitral Tribunal passed a final award on 27.03.2008 on the issue
of interest and costs. A sum of $1,118,558.54 by way of interest and a
further sum of $2,512.60 per day from 01.10.2007 until the payment of the
award was awarded in favour of the appellant. Sums of $400,000 and
$384,789.21 by way of costs of arbitration fixed by the ICC and costs by
way of attorney’s fees, expert fees and related expenses were also directed
to be paid. Final award dated 27.03.2008 was received by the respondent on
01.04.2008.
The final award on the issues of interest and costs was amalgamated
with the earlier awards, both of which were incorporated by reference into
itself. The third final award also stated that the place of arbitration is
London.
PETITION UNDER SECTION 34 BEFORE THE BOMBAY
HIGH COURT
13. On 21.07.2008, the respondent challenged the aforesaid awards under
Section 34 of the Arbitration Act before the Bombay High Court in India
after a period of more than two years from the first partial award, more
than one year from the second partial award and a period of 3 months, 24
days from the final award.
14. The learned Single Judge allowed the notice of motion
on the condonation of delay and held that the petition under Section 34 was
maintainable before the Bombay High Court.
Hence, this appeal.
15. The only question that arises for consideration before us is whether
the challenge to the award made by the respondent under Section 34 of the
Arbitration Act is maintainable before a court in India. Clearly, if the
answer is in the negative it is not necessary to decide the question of
delay. Thus, we make it clear that we are not deciding where else in the
world a challenge to the award would be maintainable.
16. Dr. A.M. Singhvi, learned senior counsel for the respondent relied on
Clause VIII (2) of the Request for Arbitration dated 16.06.2004 wherein the
petitioner stated as follows:
"VIII Place of Arbitration, Law and Language
(2) Section 14 of the letter Agreement is silent as to the place of the
arbitration. Claimant believes that Paris and France are suitable places
for arbitration to take place, indeed, this is the venue chosen by the ICC
for the related EML Arbitration and the claimant believes that this
arbitration should be consolidated along with the pending EML Arbitration.
Paris is roughly equal distant from both parties."
17. The above submission was made in response to Mr. Pallav Shisodia’s
argument, learned senior counsel for the appellant, that the respondent had
in fact stated in its petition under Section 34 of the Arbitration Act that
"the seat of arbitration was in London". Also in the counter affidavit
before this Court it was submitted that the seat of arbitration being
London in no way precludes the respondent from challenging the awards under
Section 34 of the Act.
Having noted the above submissions and statements made by the parties, we
propose to decide the question on the construction of Clause 14 and the law
governing such challenges.
CLAUSE 14: THE ARBITRATION CLAUSE
18. Clause 14 of the Agreement deals with two matters:
(i) the laws which will govern the agreement; and
(ii) a provision of settling disputes by arbitration.
As regards the first, it provides that in case a question arises as
to the agreement i.e. what the agreement means or what the parties
intended, it shall be interpreted according to the laws of Singapore and
these laws will govern the understanding and the acts of the parties.
Further, in case the parties resort to a court, they shall approach the
courts of Singapore which alone shall adjudicate upon the issue. The
courts of Singapore will thus adjudicate in relation to any non-arbitrable
dispute that might arise under the agreement or possibly a dispute
regarding the correctness or validity of an arbitration award. It is not
necessary to consider whether a challenge to the award would lie in
Singapore in this case because the award in fact was made in London and in
any case no party has approached the court in Singapore.
Secondly, this clause provides that any dispute arising out of this
agreement or concerning the rights, duties or liabilities of the parties
shall be settled by arbitration. The arbitration shall be pursuant to the
ICC Rules of Arbitration. In other words, the parties shall invoke the ICC
Rules of Arbitration in case a dispute arises between them concerning their
rights, duties or liabilities. The intention is to have the dispute
settled by and in accordance with the ICC Rules of Arbitration. In this
sense, the ICC Rules of Arbitration must be construed as being read into
this clause.
THE ICC RULES
19. The ICC Rules provide for the entire conduct of arbitration from its
commencement to the passing of an award. They provide that the arbitration
shall be conducted by the court i.e. the International Court of
Arbitration, appointed by the council of the ICC. A party wishing to have
recourse to arbitration under the rules is required to submit a Request for
Arbitration to the Secretariat of the ICC along with the information
prescribed and in particular comments as to the place of arbitration. The
ICC Rules clearly stipulate that the seat of arbitration shall be fixed by
the court, in the following words:-
“1. The place of the arbitration shall be fixed by the Court unless
agreed upon by the parties.
2. The Arbitral Tribunal may, after consultation with the
parties, conduct hearings and meetings at any location it
considers appropriate unless otherwise agreed by the
parties.
3. The Arbitral Tribunal may deliberate at any location it
considers appropriate.”
In this case, the appellant had proposed the venue of arbitration to
be Paris in France. Upon notice being issued, the respondent was obliged
to file an answer including a comment concerning the number of arbitrators
and their choice as to the place of arbitration.
The respondent, in their answer stated that the venue suggested by
the claimant i.e. Paris in France would unnecessarily increase the cost of
arbitration and therefore suggested that Singapore would be the most
appropriate and convenient venue for the arbitration, vide “Answer to
Request for Arbitration pursuant to Article 5(1) of the ICC Rules of
Arbitration” dated 30.08.2004.
The International Court of Arbitration decided inter alia that
London, United Kingdom will be the juridical seat of the arbitration in
view of Article 14(1) of the ICC Rules and, therefore, proceeded on the
basis of the Part-I of the English Arbitration Act, 1996.
What is significant and needs to be pointed out is that the parties
had agreed in pursuance of the agreement to have the dispute decided in
accordance with the ICC Rules by submitting the dispute to the ICC. The
court (of the ICC) considered the stand of the parties on the venue for
arbitration and fixed London as the seat of arbitration.
INTENTION OF THE PARTIES TO EXCLUDE PART-I
20. In this case, there is an express choice of the law governing
the contract as a whole i.e. Singaporean Law.
There is an express agreement that any arbitration would be
governed by the ICC Rules of Arbitration. The general principle is that,
in the absence of any contradictory indication, it shall be presumed that
the parties have intended that the proper law of contract as well as the
law governing the arbitration agreement is the same as the law of the
country in which the arbitration is agreed to be held.
21. It would be apposite to refer to a case decided by the Supreme
Court of Sweden from a passage in Redfern and Hunter[1]. Quoting the
Supreme Court of Sweden it is stated that:-
“…no particular provision concerning the applicable law for the arbitration
agreement itself was indicated [by the parties]. In such circumstances the
issue of the validity of the arbitration clause should be determined in
accordance with the law of the state which the arbitration proceedings have
taken place, that is to say, Swedish Law.”
In the present case, the arbitration clause contemplates an award made in
pursuance to the ICC rules without specifying the applicable law for the
arbitration agreement. It would therefore be appropriate to hold that the
question of validity of the award should be determined in accordance with
the law of the state in which the arbitration proceedings have taken place
i.e. the English Law. Though for the purposes of this decision we would
only hold that the conduct of the parties exclude the applicability of Part-
I.
In other words, where the parties have not expressly chosen the law
governing the contract as a whole or the arbitration agreement in
particular, the law of the country where the arbitration is agreed to be
held has primacy.
22. Here, an express choice has been made by the parties regarding
the conduct of arbitration, i.e., that a dispute shall be finally settled
by arbitration according to the ICC Rules of Arbitration. The parties have
not chosen the place of arbitration. They have simply chosen the rules
that will govern the arbitration, presumably aware of the provision in the
rules that the place of arbitration will be decided by the ICC vide Article
14(1) of the ICC Rules. The ICC having chosen London, leaves no doubt that
the place of arbitration will attract the law of UK in all matters
concerning arbitration.
23. The arbitration clause appears consistent with Section 2(7) of the
Arbitration Act, 1996 which recognizes the freedom to authorize any person
including an institution to determine an issue such as the choice of the
place of arbitration.
24. Dr. Singhvi rightly submitted that the decisions of the court in
Sakuma Exports Ltd. vs. Louis Dreyfus Commodities Suisse Sa[2], Harmony
Innovation Shipping Ltd. vs. Gupta Coal India Ltd.[3], and Reliance
Industries Ltd. vs. Union of India[4] do not help the appellant in view of
the main difference between the abovementioned cases and the present one
i.e. in all these cases, the parties had specifically agreed that the seat
of arbitration will be London. The arbitration clause in these cases
itself specified the seat to be at London. In Reliance Industries Ltd.
(supra), the agreement that the seat of arbitration would be London was
incorporated in the final partial award.
However, as we shall see the agreement to have the arbitration conducted by
the ICC and the choice of London as the seat of arbitration has made no
material difference for the purpose of exclusion of Part-I.
The relevant clause in these cases was undoubtedly different in that
the seat of arbitration outside India was specified in the clause itself.
However, we have found that the relevant clause in the present case had the
effect of an agreement to have the seat of the arbitration outside India,
as chosen by the ICC and agreed to by the parties.
25. We find that in the present case, the seat of arbitration has not
been specified at all in the arbitration clause. There is however an
agreement to have the arbitration conducted according to the ICC rules and
thus a willingness that the seat of arbitration may be outside India. In
any case, the parties having agreed to have the seat decided by the ICC and
the ICC having chosen London after consulting the parties and the parties
having abided by the decision, it must be held that upon the decision of
the ICC to hold the arbitration in London, the parties agreed that the seat
shall be in London for all practical purposes. Therefore, there is an
agreement that the arbitration shall be held in London and thus Part-I of
the Act should be excluded.
26. The construction that the parties agreed to exclude the applicability
of Part-I of the Act and generally to have the entire agreement governed
not according to Indian law is also apparent from the express provision
that:
“This agreement shall be governed by and construed according to laws of
Singapore and parties attorn to jurisdiction of the Courts of Singapore”.
In para 25 of National Thermal Power Corporation vs. Singer
Company[5], this Court held:
“On the other hand, where the proper law of the contract is expressly
chosen by the parties, as in the present case, such law must, in the
absence of an unmistakable intention to the contrary, govern the
arbitration agreement which, though collateral or ancillary to the main
contract, is nevertheless a part of such contract”.
This principle is again reiterated in Sakuma Exports
Ltd. (supra).
This stipulation expressly excludes Part-I of the Act because it governs
both the principal agreement as well as the accompanying arbitration
agreement.
NON- APPLICABILITY OF PART-I
27. It is settled law in India that the provisions of Part-I of the
Arbitration Act would apply to all arbitrations and all proceedings
relating thereto. In Bhatia International vs. Bulk Trading S.A. and
Anr.[6], this Court observed:-
“32. …….Where such arbitration is held in India the provisions of Part I
would compulsorily apply and parties are free to deviate only to the extent
permitted by the derogable provisions of Part I. In cases of international
commercial arbitrations held out of India provisions of Part I would apply
unless the parties by agreement, express or implied, exclude all or any of
its provisions. In that case the laws or rules chosen by the parties would
prevail. Any provision, in
Part I, which is contrary to or excluded by that law or rules will not
apply.”
This view has been followed in several cases, See Venture Global
Engg. vs. Satyam Computer Services Ltd.[7], Videocon Industries Limited vs.
Union of India[8], Dozco India (P) Ltd. vs. Doosan Infracore Co. Ltd.[9],
Cauvery Coffee Traders vs. Horner Resources (International) Co. Ltd.[10],
Reliance Industries Ltd. (supra) and Sakuma Exports Ltd. (supra), Union of
India vs. Reliance Industries Ltd.[11], Harmony Innovation Shipping Ltd.
(supra) and Eitzen Bulk A/S vs. Ashapura Minechem Ltd.[12]
The relevant clause in these cases was undoubtedly different in that, the
seat of arbitration outside India was specified in the clause itself.
However, we have found that the clause in this case had the effect of an
agreement to have the seat of arbitration outside India, as chosen by the
ICC, and as agreed to by the parties.
28. On a true construction of Clause 14 in this case, there is no doubt
the parties have agreed to exclude Part-I by agreeing that the arbitration
would be conducted in accordance with the ICC Rules. The parties were
undoubtedly conscious that the ICC could choose a venue for arbitration
outside India. That in our view is sufficient to infer that the parties
agreed to exclude
Part-I. The ICC could well have chosen a venue in India. The possibility
that ICC could have chosen India is not a counter indication of this
inference. It could also be said that the decision to exclude the
applicability of Part-I was taken when the ICC chose London after
consulting the parties. Either way Part-I was excluded.
29. The view that it is the law of the country where arbitration is held
that will govern the arbitration and matters related thereto such as a
challenge to the award is well entrenched. In Dozco India (P) Ltd.
(supra), this Court observed:-
“In the absence of express agreement, there is a strong prima facie
presumption that the parties intend the curial law to be the law of the
‘seat’ of the arbitration i.e. the place at which the arbitration is to be
conducted, on the ground that that is the country most closely connected
with the proceedings. So in order to determine the curial law in the
absence of an express choice by the parties it is first necessary to
determine the seat of the arbitration, by construing the agreement to
arbitrate.”
30. The relationship between the seat of arbitration and the law
governing arbitration is an integral one. The seat of arbitration is
defined as the juridical seat of arbitration designated by the parties, or
by the arbitral institution or by the arbitrators themselves as the case
may be. It is pertinent to refer to the following passage from Redfern and
Hunter (supra):-
“This introduction tries to make clear, the place or seat of the
arbitration is not merely a matter of geography. It is the territorial
link between the arbitration itself and the law of the place in which that
arbitration is legally situated:
When one says that London, Paris or Geneva is the place of arbitration, one
does not refer solely to a geographical location. One means that the
arbitration is conducted within the framework of the law of arbitration of
England, France or Switzerland or, to use an English expression, under the
curial law of the relevant country. The geographical place of arbitration
is the factual connecting factor between that arbitration law and the
arbitration proper, considered as a nexus of contractual and procedural
rights and obligations between the parties and the arbitrators.
The seat of arbitration is thus intended to be its centre of gravity.”
Further, in the same work on International Arbitration by Redfern and
Hunter (supra), the following passage emphasizes the connection between the
lex arbitri and lex fori:-
“Parties may well choose a particular place of arbitration precisely
because its lex arbitri is one which they find attractive. Nevertheless,
once a place of arbitration has been chosen, it brings with it its own law.
If that law contains provisions that are mandatory so far as arbitration
are concerned, those provisions must be obeyed. It is not a matter of
choice any more than the notional motorist is free to choose which local
traffic laws to obey and which to disregard.”
Thus, it is clear that the place of arbitration determines the law
that will apply to the arbitration and related matters like challenges to
the award etc, see Eitzen Bulk A/S (supra).
31. The significant determinant in each case is the agreement of the
parties as to the place of arbitration and where in fact the arbitration
took place.
If in pursuance of the arbitration agreement, the arbitration took place
outside India, there is a clear exclusion of Part-I of the Arbitration Act.
In the present case, the parties expressly agreed that the arbitration will
be conducted according to the ICC Rules of Arbitration and left the place
of arbitration to be chosen by the ICC. The ICC in fact, chose London as
the seat of arbitration after consulting the parties. The arbitration was
held in London without demur from any of the parties. All the awards i.e.
the two partial final awards, and the third final award, were made in
London and communicated to the parties. We find that this is a clear case
of the exclusion of Part-I vide Eitzen Bulk A/S (supra), and the decisions
referred to and followed therein.
32. The respondent contends before us that Part-I of the award was
applicable, however they themselves stated the place of arbitration to be
London.
It is pertinent to reproduce the relevant portion in the respondent’s
application before the ICC while objecting to the authority of the law
firms representing the appellant. It stated:-
“The seat of this arbitration is London.”
Therefore, the two reasons for Part-I not being applicable are as
follows:-
Parties agreed that the seat maybe outside India as may be fixed by the
ICC; and
It was admitted that the seat of arbitration was London and the award was
made there.
Therefore, there is no doubt that Part-I has no application
because the parties chose and agreed to the arbitration being conducted
outside India and the arbitration was in fact held outside India.
33. In view of the foregoing observations, we find that the High Court
committed an error in observing that the seat of arbitration itself is not
a decisive factor to exclude Part-I of the Arbitration Act. We therefore
set aside the judgment of the High Court and dismiss the petition filed by
the respondent under Section 34 of the Arbitration Act before the Bombay
High Court.
34. In the result the appeal is allowed as no order to costs.
…...................................………J.
[S.A. BOBDE]
..………………………….…..........…..J.
[ASHOK
BHUSHAN]
NEW DELHI,
March 10, 2017
-----------------------
[1]
Redfern and Hunter on International Arbitration, Fifth Edition
[2] (2015) 5 SCC 656
[3] (2015) 9 SCC 172
[4] (2014) 7 SCC 603
[5] (1992) 3 SCC 551
[6] (2002) 4 SCC 105
[7] (2008) 4 SCC 190
[8] (2011) 6 SCC 161
[9] (2011) 6 SCC 179
[10] (2011) 10 SCC 420
[11] (2015) 10 SCC 213
[12] (2016) 11 SCC 508
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3885 OF 2017
(Arising out of SLP (C) No. 34009 of 2013)
IMAX CORPORATION ... APPELLANT
VERSUS
M/S E-CITY ENTERTAINMENT (I) Pvt. LTD. ... RESPONDENT
1
2 JUDGMENT
S. A. BOBDE, J.
Leave granted.
2. The appellant-Imax Corporation has challenged the interim order
dated 10.06.2013 passed by the High Court of Judicature at Bombay in Notice
of Motion No.2560 of 2008 in the Arbitration Petition (Lodging) No.525 of
2008.
3. By the aforementioned order, the High Court held that the petition
under Section 34 of the Arbitration and Conciliation Act, 1996 (for short,
"the Arbitration Act") filed by the respondent-M/S E-City Entertainment (I)
Pvt. Ltd. against two partial final awards dated 11.02.2006, 24.08.2007,
and third final award dated 27.03.2008 was maintainable.
The appellant had objected to the maintainability of the petition under
Section 34 of the Arbitration Act on the ground that the arbitration clause
excluded the applicability of Part-I which contains the said section.
4. The only issue before us is whether the petition under Section 34 of
the Arbitration Act is maintainable before a court in India, and in this
case, the Bombay High Court.
5. On 28.09.2000, the appellant entered into an agreement with the
respondent for a supply of large format projection systems for cinema
theatres to be installed in theatres all across India. Clause 14 of the
agreement contained an arbitration clause which reads as follows:
"This Agreement shall be governed by and construed according to the laws of
Singapore, and the parties attorn to the jurisdiction of the courts of
Singapore. Any dispute arising out of this master agreement or concerning
the rights, duties or liabilities of E-City or Imax hereunder shall be
finally settled by arbitration pursuant to the ICC Rules of Arbitration."
6. On 16.06.2004, the appellant filed a request for arbitration with the
ICC, and claimed damages. On 08.10.2004, the ICC i.e. the chosen arbitral
forum fixed London as the place of arbitration i.e. the juridical seat of
arbitration, after consulting the parties.
FIRST PARTIAL FINAL AWARD
7. On 11.02.2006, the first partial final award was made in favour of
the appellant declaring that the respondent was in breach of the agreement
and therefore liable for damages. The award stated that the decision on the
other issues, including damages/costs would be reserved for a future award.
8. The aforementioned declaration was made after observing in the award
that the court of the ICC had decided to fix London as the juridical seat
of arbitration in accordance with the powers vested in the court under
Article 14(1) of the ICC Rules. The observation read as follows:
"As well be noticed, no provision was made for a venue for any arbitration
contemplated by Clause 14, but subsequently the court of the ICC decided on
the 8th of October, 2004 to fix London as the juridical seat of the
arbitration in accordance with the powers vested in the court under Article
14 of the ICC Rules. Accordingly, this is an arbitration to which Part-I of
the English Arbitration Act 1996 applies."
9. The appellant filed its statement of damages before
the Arbitral Tribunal. The respondent filed its statement
of defence.
10. On 05.09.2006 the respondent objected that the appellant has no legal
status and the law firm representing them is not authorized to pursue the
arbitration. In that application, the respondent stated as follows:
"The seat of this arbitration is London. Therefore, English law determines
the effect of any want of capacity suffered by "Imax Ltd" under the
Canadian law as
a result of its amalgamation into Imax Corporation with effect from 1st
January, 2001."
SECOND PARTIAL FINAL AWARD
11. On 24.08.2007, the Arbitral Tribunal passed the second partial award
rejecting the above objection filed by the respondent. By this award, the
tribunal determined the quantum of damages payable to the appellant. This
award was also made in London, the juridical seat of this arbitration. A
sum of $9,406,148.31 was awarded to the appellant.
THIRD FINAL AWARD
12. The Arbitral Tribunal passed a final award on 27.03.2008 on the issue
of interest and costs. A sum of $1,118,558.54 by way of interest and a
further sum of $2,512.60 per day from 01.10.2007 until the payment of the
award was awarded in favour of the appellant. Sums of $400,000 and
$384,789.21 by way of costs of arbitration fixed by the ICC and costs by
way of attorney’s fees, expert fees and related expenses were also directed
to be paid. Final award dated 27.03.2008 was received by the respondent on
01.04.2008.
The final award on the issues of interest and costs was amalgamated
with the earlier awards, both of which were incorporated by reference into
itself. The third final award also stated that the place of arbitration is
London.
PETITION UNDER SECTION 34 BEFORE THE BOMBAY
HIGH COURT
13. On 21.07.2008, the respondent challenged the aforesaid awards under
Section 34 of the Arbitration Act before the Bombay High Court in India
after a period of more than two years from the first partial award, more
than one year from the second partial award and a period of 3 months, 24
days from the final award.
14. The learned Single Judge allowed the notice of motion
on the condonation of delay and held that the petition under Section 34 was
maintainable before the Bombay High Court.
Hence, this appeal.
15. The only question that arises for consideration before us is whether
the challenge to the award made by the respondent under Section 34 of the
Arbitration Act is maintainable before a court in India. Clearly, if the
answer is in the negative it is not necessary to decide the question of
delay. Thus, we make it clear that we are not deciding where else in the
world a challenge to the award would be maintainable.
16. Dr. A.M. Singhvi, learned senior counsel for the respondent relied on
Clause VIII (2) of the Request for Arbitration dated 16.06.2004 wherein the
petitioner stated as follows:
"VIII Place of Arbitration, Law and Language
(2) Section 14 of the letter Agreement is silent as to the place of the
arbitration. Claimant believes that Paris and France are suitable places
for arbitration to take place, indeed, this is the venue chosen by the ICC
for the related EML Arbitration and the claimant believes that this
arbitration should be consolidated along with the pending EML Arbitration.
Paris is roughly equal distant from both parties."
17. The above submission was made in response to Mr. Pallav Shisodia’s
argument, learned senior counsel for the appellant, that the respondent had
in fact stated in its petition under Section 34 of the Arbitration Act that
"the seat of arbitration was in London". Also in the counter affidavit
before this Court it was submitted that the seat of arbitration being
London in no way precludes the respondent from challenging the awards under
Section 34 of the Act.
Having noted the above submissions and statements made by the parties, we
propose to decide the question on the construction of Clause 14 and the law
governing such challenges.
CLAUSE 14: THE ARBITRATION CLAUSE
18. Clause 14 of the Agreement deals with two matters:
(i) the laws which will govern the agreement; and
(ii) a provision of settling disputes by arbitration.
As regards the first, it provides that in case a question arises as
to the agreement i.e. what the agreement means or what the parties
intended, it shall be interpreted according to the laws of Singapore and
these laws will govern the understanding and the acts of the parties.
Further, in case the parties resort to a court, they shall approach the
courts of Singapore which alone shall adjudicate upon the issue. The
courts of Singapore will thus adjudicate in relation to any non-arbitrable
dispute that might arise under the agreement or possibly a dispute
regarding the correctness or validity of an arbitration award. It is not
necessary to consider whether a challenge to the award would lie in
Singapore in this case because the award in fact was made in London and in
any case no party has approached the court in Singapore.
Secondly, this clause provides that any dispute arising out of this
agreement or concerning the rights, duties or liabilities of the parties
shall be settled by arbitration. The arbitration shall be pursuant to the
ICC Rules of Arbitration. In other words, the parties shall invoke the ICC
Rules of Arbitration in case a dispute arises between them concerning their
rights, duties or liabilities. The intention is to have the dispute
settled by and in accordance with the ICC Rules of Arbitration. In this
sense, the ICC Rules of Arbitration must be construed as being read into
this clause.
THE ICC RULES
19. The ICC Rules provide for the entire conduct of arbitration from its
commencement to the passing of an award. They provide that the arbitration
shall be conducted by the court i.e. the International Court of
Arbitration, appointed by the council of the ICC. A party wishing to have
recourse to arbitration under the rules is required to submit a Request for
Arbitration to the Secretariat of the ICC along with the information
prescribed and in particular comments as to the place of arbitration. The
ICC Rules clearly stipulate that the seat of arbitration shall be fixed by
the court, in the following words:-
“1. The place of the arbitration shall be fixed by the Court unless
agreed upon by the parties.
2. The Arbitral Tribunal may, after consultation with the
parties, conduct hearings and meetings at any location it
considers appropriate unless otherwise agreed by the
parties.
3. The Arbitral Tribunal may deliberate at any location it
considers appropriate.”
In this case, the appellant had proposed the venue of arbitration to
be Paris in France. Upon notice being issued, the respondent was obliged
to file an answer including a comment concerning the number of arbitrators
and their choice as to the place of arbitration.
The respondent, in their answer stated that the venue suggested by
the claimant i.e. Paris in France would unnecessarily increase the cost of
arbitration and therefore suggested that Singapore would be the most
appropriate and convenient venue for the arbitration, vide “Answer to
Request for Arbitration pursuant to Article 5(1) of the ICC Rules of
Arbitration” dated 30.08.2004.
The International Court of Arbitration decided inter alia that
London, United Kingdom will be the juridical seat of the arbitration in
view of Article 14(1) of the ICC Rules and, therefore, proceeded on the
basis of the Part-I of the English Arbitration Act, 1996.
What is significant and needs to be pointed out is that the parties
had agreed in pursuance of the agreement to have the dispute decided in
accordance with the ICC Rules by submitting the dispute to the ICC. The
court (of the ICC) considered the stand of the parties on the venue for
arbitration and fixed London as the seat of arbitration.
INTENTION OF THE PARTIES TO EXCLUDE PART-I
20. In this case, there is an express choice of the law governing
the contract as a whole i.e. Singaporean Law.
There is an express agreement that any arbitration would be
governed by the ICC Rules of Arbitration. The general principle is that,
in the absence of any contradictory indication, it shall be presumed that
the parties have intended that the proper law of contract as well as the
law governing the arbitration agreement is the same as the law of the
country in which the arbitration is agreed to be held.
21. It would be apposite to refer to a case decided by the Supreme
Court of Sweden from a passage in Redfern and Hunter[1]. Quoting the
Supreme Court of Sweden it is stated that:-
“…no particular provision concerning the applicable law for the arbitration
agreement itself was indicated [by the parties]. In such circumstances the
issue of the validity of the arbitration clause should be determined in
accordance with the law of the state which the arbitration proceedings have
taken place, that is to say, Swedish Law.”
In the present case, the arbitration clause contemplates an award made in
pursuance to the ICC rules without specifying the applicable law for the
arbitration agreement. It would therefore be appropriate to hold that the
question of validity of the award should be determined in accordance with
the law of the state in which the arbitration proceedings have taken place
i.e. the English Law. Though for the purposes of this decision we would
only hold that the conduct of the parties exclude the applicability of Part-
I.
In other words, where the parties have not expressly chosen the law
governing the contract as a whole or the arbitration agreement in
particular, the law of the country where the arbitration is agreed to be
held has primacy.
22. Here, an express choice has been made by the parties regarding
the conduct of arbitration, i.e., that a dispute shall be finally settled
by arbitration according to the ICC Rules of Arbitration. The parties have
not chosen the place of arbitration. They have simply chosen the rules
that will govern the arbitration, presumably aware of the provision in the
rules that the place of arbitration will be decided by the ICC vide Article
14(1) of the ICC Rules. The ICC having chosen London, leaves no doubt that
the place of arbitration will attract the law of UK in all matters
concerning arbitration.
23. The arbitration clause appears consistent with Section 2(7) of the
Arbitration Act, 1996 which recognizes the freedom to authorize any person
including an institution to determine an issue such as the choice of the
place of arbitration.
24. Dr. Singhvi rightly submitted that the decisions of the court in
Sakuma Exports Ltd. vs. Louis Dreyfus Commodities Suisse Sa[2], Harmony
Innovation Shipping Ltd. vs. Gupta Coal India Ltd.[3], and Reliance
Industries Ltd. vs. Union of India[4] do not help the appellant in view of
the main difference between the abovementioned cases and the present one
i.e. in all these cases, the parties had specifically agreed that the seat
of arbitration will be London. The arbitration clause in these cases
itself specified the seat to be at London. In Reliance Industries Ltd.
(supra), the agreement that the seat of arbitration would be London was
incorporated in the final partial award.
However, as we shall see the agreement to have the arbitration conducted by
the ICC and the choice of London as the seat of arbitration has made no
material difference for the purpose of exclusion of Part-I.
The relevant clause in these cases was undoubtedly different in that
the seat of arbitration outside India was specified in the clause itself.
However, we have found that the relevant clause in the present case had the
effect of an agreement to have the seat of the arbitration outside India,
as chosen by the ICC and agreed to by the parties.
25. We find that in the present case, the seat of arbitration has not
been specified at all in the arbitration clause. There is however an
agreement to have the arbitration conducted according to the ICC rules and
thus a willingness that the seat of arbitration may be outside India. In
any case, the parties having agreed to have the seat decided by the ICC and
the ICC having chosen London after consulting the parties and the parties
having abided by the decision, it must be held that upon the decision of
the ICC to hold the arbitration in London, the parties agreed that the seat
shall be in London for all practical purposes. Therefore, there is an
agreement that the arbitration shall be held in London and thus Part-I of
the Act should be excluded.
26. The construction that the parties agreed to exclude the applicability
of Part-I of the Act and generally to have the entire agreement governed
not according to Indian law is also apparent from the express provision
that:
“This agreement shall be governed by and construed according to laws of
Singapore and parties attorn to jurisdiction of the Courts of Singapore”.
In para 25 of National Thermal Power Corporation vs. Singer
Company[5], this Court held:
“On the other hand, where the proper law of the contract is expressly
chosen by the parties, as in the present case, such law must, in the
absence of an unmistakable intention to the contrary, govern the
arbitration agreement which, though collateral or ancillary to the main
contract, is nevertheless a part of such contract”.
This principle is again reiterated in Sakuma Exports
Ltd. (supra).
This stipulation expressly excludes Part-I of the Act because it governs
both the principal agreement as well as the accompanying arbitration
agreement.
NON- APPLICABILITY OF PART-I
27. It is settled law in India that the provisions of Part-I of the
Arbitration Act would apply to all arbitrations and all proceedings
relating thereto. In Bhatia International vs. Bulk Trading S.A. and
Anr.[6], this Court observed:-
“32. …….Where such arbitration is held in India the provisions of Part I
would compulsorily apply and parties are free to deviate only to the extent
permitted by the derogable provisions of Part I. In cases of international
commercial arbitrations held out of India provisions of Part I would apply
unless the parties by agreement, express or implied, exclude all or any of
its provisions. In that case the laws or rules chosen by the parties would
prevail. Any provision, in
Part I, which is contrary to or excluded by that law or rules will not
apply.”
This view has been followed in several cases, See Venture Global
Engg. vs. Satyam Computer Services Ltd.[7], Videocon Industries Limited vs.
Union of India[8], Dozco India (P) Ltd. vs. Doosan Infracore Co. Ltd.[9],
Cauvery Coffee Traders vs. Horner Resources (International) Co. Ltd.[10],
Reliance Industries Ltd. (supra) and Sakuma Exports Ltd. (supra), Union of
India vs. Reliance Industries Ltd.[11], Harmony Innovation Shipping Ltd.
(supra) and Eitzen Bulk A/S vs. Ashapura Minechem Ltd.[12]
The relevant clause in these cases was undoubtedly different in that, the
seat of arbitration outside India was specified in the clause itself.
However, we have found that the clause in this case had the effect of an
agreement to have the seat of arbitration outside India, as chosen by the
ICC, and as agreed to by the parties.
28. On a true construction of Clause 14 in this case, there is no doubt
the parties have agreed to exclude Part-I by agreeing that the arbitration
would be conducted in accordance with the ICC Rules. The parties were
undoubtedly conscious that the ICC could choose a venue for arbitration
outside India. That in our view is sufficient to infer that the parties
agreed to exclude
Part-I. The ICC could well have chosen a venue in India. The possibility
that ICC could have chosen India is not a counter indication of this
inference. It could also be said that the decision to exclude the
applicability of Part-I was taken when the ICC chose London after
consulting the parties. Either way Part-I was excluded.
29. The view that it is the law of the country where arbitration is held
that will govern the arbitration and matters related thereto such as a
challenge to the award is well entrenched. In Dozco India (P) Ltd.
(supra), this Court observed:-
“In the absence of express agreement, there is a strong prima facie
presumption that the parties intend the curial law to be the law of the
‘seat’ of the arbitration i.e. the place at which the arbitration is to be
conducted, on the ground that that is the country most closely connected
with the proceedings. So in order to determine the curial law in the
absence of an express choice by the parties it is first necessary to
determine the seat of the arbitration, by construing the agreement to
arbitrate.”
30. The relationship between the seat of arbitration and the law
governing arbitration is an integral one. The seat of arbitration is
defined as the juridical seat of arbitration designated by the parties, or
by the arbitral institution or by the arbitrators themselves as the case
may be. It is pertinent to refer to the following passage from Redfern and
Hunter (supra):-
“This introduction tries to make clear, the place or seat of the
arbitration is not merely a matter of geography. It is the territorial
link between the arbitration itself and the law of the place in which that
arbitration is legally situated:
When one says that London, Paris or Geneva is the place of arbitration, one
does not refer solely to a geographical location. One means that the
arbitration is conducted within the framework of the law of arbitration of
England, France or Switzerland or, to use an English expression, under the
curial law of the relevant country. The geographical place of arbitration
is the factual connecting factor between that arbitration law and the
arbitration proper, considered as a nexus of contractual and procedural
rights and obligations between the parties and the arbitrators.
The seat of arbitration is thus intended to be its centre of gravity.”
Further, in the same work on International Arbitration by Redfern and
Hunter (supra), the following passage emphasizes the connection between the
lex arbitri and lex fori:-
“Parties may well choose a particular place of arbitration precisely
because its lex arbitri is one which they find attractive. Nevertheless,
once a place of arbitration has been chosen, it brings with it its own law.
If that law contains provisions that are mandatory so far as arbitration
are concerned, those provisions must be obeyed. It is not a matter of
choice any more than the notional motorist is free to choose which local
traffic laws to obey and which to disregard.”
Thus, it is clear that the place of arbitration determines the law
that will apply to the arbitration and related matters like challenges to
the award etc, see Eitzen Bulk A/S (supra).
31. The significant determinant in each case is the agreement of the
parties as to the place of arbitration and where in fact the arbitration
took place.
If in pursuance of the arbitration agreement, the arbitration took place
outside India, there is a clear exclusion of Part-I of the Arbitration Act.
In the present case, the parties expressly agreed that the arbitration will
be conducted according to the ICC Rules of Arbitration and left the place
of arbitration to be chosen by the ICC. The ICC in fact, chose London as
the seat of arbitration after consulting the parties. The arbitration was
held in London without demur from any of the parties. All the awards i.e.
the two partial final awards, and the third final award, were made in
London and communicated to the parties. We find that this is a clear case
of the exclusion of Part-I vide Eitzen Bulk A/S (supra), and the decisions
referred to and followed therein.
32. The respondent contends before us that Part-I of the award was
applicable, however they themselves stated the place of arbitration to be
London.
It is pertinent to reproduce the relevant portion in the respondent’s
application before the ICC while objecting to the authority of the law
firms representing the appellant. It stated:-
“The seat of this arbitration is London.”
Therefore, the two reasons for Part-I not being applicable are as
follows:-
Parties agreed that the seat maybe outside India as may be fixed by the
ICC; and
It was admitted that the seat of arbitration was London and the award was
made there.
Therefore, there is no doubt that Part-I has no application
because the parties chose and agreed to the arbitration being conducted
outside India and the arbitration was in fact held outside India.
33. In view of the foregoing observations, we find that the High Court
committed an error in observing that the seat of arbitration itself is not
a decisive factor to exclude Part-I of the Arbitration Act. We therefore
set aside the judgment of the High Court and dismiss the petition filed by
the respondent under Section 34 of the Arbitration Act before the Bombay
High Court.
34. In the result the appeal is allowed as no order to costs.
…...................................………J.
[S.A. BOBDE]
..………………………….…..........…..J.
[ASHOK
BHUSHAN]
NEW DELHI,
March 10, 2017
-----------------------
[1]
Redfern and Hunter on International Arbitration, Fifth Edition
[2] (2015) 5 SCC 656
[3] (2015) 9 SCC 172
[4] (2014) 7 SCC 603
[5] (1992) 3 SCC 551
[6] (2002) 4 SCC 105
[7] (2008) 4 SCC 190
[8] (2011) 6 SCC 161
[9] (2011) 6 SCC 179
[10] (2011) 10 SCC 420
[11] (2015) 10 SCC 213
[12] (2016) 11 SCC 508
