Вы находитесь на странице: 1из 19

CASE ANALYSIS ON THE CASE OF

Bharat Aluminium Company and ors

Vs.

Kaiser Aluminium Technical Service, Inc. and ors

SUBMITTED BY

AYESHA ANAND

B.B.A. LL.B.

SEMESTER- 9

DIVISION – C

PRN- 15010324269

SEPTEMBER, 2019

UNDER THE GUIDANCE OF

DR. SANU RANI PAUL.

SYMBIOSIS LAW SCHOOL, HYDERABAD

SYMBIOSIS INTERNATIONAL UNIVERSITY, PUNE

1|Page
TABLE OF CONTENTS

SL.NO PARTCULARS PAGE NO.

1. FACTS OF THE CASE 3

2. ISSUES RAISED IN THE CASE 4

3. RULES 5

4. ANALYSIS OF THE COURT 13

5. CONCLUSION 18

2|Page
Bharat Aluminium Company and ors............................ Appellants

Vs.

Kaiser Aluminium Technical Service, Inc. and ors.....


Respondents1

Civil Appeal Nos. 7019 of 2005, 6284 of 2004 and 3678 of 2007

Date of Judgement- 6th September 2012

Adjudicating Court – In the Hon’ble Supreme Court of India.

Hon’ble Judges/Coram - S.H. Kapadia, C.J.I., D.K. Jain, Surinder Singh Nijjar, Ranjana
Prakash Desai and J.S. Khehar, JJ.

FACTS –

1. An agreement dated 22nd April, 1993 was executed between Bharat Aluminium
Company (herein after referred to as BALCO) i.e. the Appellant and Kaiser i.e. the
Respondent.
2. Under the said agreement between the parties Kaiser was supposed to install and
supply a computer based system in the premises of BALCO.
3. The agreement had an arbitration clause in it in accordance of which any dispute
under the agreement was to be settled as per the English Arbitration Law and London
would be the venue of the same proceedings.
4. The agreement also stated further that the governing law as per the agreement would
be Indian Law, whilst arbitration proceedings would be conducted and governed in
accordance with the English Law.
5. With respect to the performance of the aforementioned agreement a dispute arose
between the appellants and the respondents which was referred to arbitration.
6. This arbitration proceeding took place in England and two (2) awards were passed in
favour of the respondents in the said proceeding.
7. Thereafter, the appellants field an application in order to set aside the said awards
under section 34 of the Arbitration Act of 1996.

1
MANU/SC/0722/2012

3|Page
8. District Court of Bilaspur and the Chattisgarh High Court both refused setting aside
the two awards and the appellants thereby filed for an appeal against the said orders in
the Hon’ble Supreme Court of India.

ISSUES RAISED-

On the basis of the facts the following issues arose for consideration before the court:

1. Whether or not Part I of the Arbitration and Conciliation Act of 1996 is applicable
in foreign seated arbitration or its applicability is limited to arbitrations which take
place in India?
a) What is the Interpretation of the court of Section 2(2) of Arbitration and
Conciliation Act of 1996?
b) Is there any conflict according to the court with Section 2(4) and 2(5) of
Arbitration and Conciliation Act of 1996?
c) Is the award under Section 2(7) of the Arbitration and Conciliation Act of
1996 a Domestic Award?
d) Do the parties have any autonomy?

2 Whether or not there is any overlapping of the provisions of Part I and Part II of the
Arbitration and Conciliation Act of 1996?
a) What is the Enforcement of Foreign Award under Section 48(1) & (2) though
being under Part II construed as falling under Part I of the Arbitration and
Conciliation Act of 1996?
b) What is the applicability of Section 9 to foreign seated arbitrations?
c) Is there any relief for awards passed in Non-Convention Countries?
d) What is the maintainability of suits for Interim Relief?

4|Page
RULES -

1. Arbitration and Conciliation Act, 19962:


1.1 Part I – Arbitration
1.2 Part II – enforcement of certain foreign awards
1.3 Section 1 (2) - It extends to the whole of India: Provided that Parts, I, III and IV shall
extend to the State of Jammu and Kashmir only in so far as they relate to international
commercial arbitration or, as the case may be, international commercial conciliation.
Explanation.- In this sub-section, the expression “international commercial conciliation”
shall have the same meaning as the expression “international commercial arbitration” in
clause (f) of sub-section (1) of section 2, subject to the modification that for the word
“arbitration” occurring therein, the word “conciliation” shall be substituted.
1.4 Section 2(1) (e) – “Court” means— (i) in the case of an arbitration other than
international commercial arbitration, the principal Civil Court of original jurisdiction in a
district, and includes the High Court in exercise of its ordinary original civil jurisdiction,
having jurisdiction to decide the questions forming the subject-matter of the arbitration if
the same had been the subject-matter of a suit, but does not include any Civil Court of a
grade inferior to such principal Civil Court, or any Court of Small Causes; (ii) in the case
of international commercial arbitration, the High Court in exercise of its ordinary original
civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter
of the arbitration if the same had been the subject-matter of a suit, and in other cases, a
High Court having jurisdiction to hear appeals from decrees of courts subordinate to that
High Court.
1.5 Section 2 (1) (f) - “international commercial arbitration” means an arbitration relating to
disputes arising out of legal relationships, whether contractual or not, considered as
commercial under the law in force in India and where at least one of the parties is— (i)
an individual who is a national of, or habitually resident in, any country other than India;
or (ii) a body corporate which is incorporated in any country other than India; or (iii) 1 an
association or a body of individuals whose central management and control is exercised
in any country other than India; or (iv) the Government of a foreign country;

2
The Arbitration and Conciliation Act, 1996

5|Page
1.6 Section 2(2) – This Part shall apply where the place of arbitration is in India. [Provided
that subject to an agreement to the contrary, the provisions of sections 9, 27 and clause
(a) of sub-section (1) and sub-section (3) of section 37 shall also apply to international
commercial arbitration, even if the place of arbitration is outside India, and an arbitral
award made or to be made in such place is enforceable and recognised under the
provisions of Part II of this Act.
1.7 Section 2(4) – This Part except sub-section (1) of section 40, sections 41 and 43 shall
apply to every arbitration under any other enactment for the time being in force, as if the
arbitration were pursuant to an arbitration agreement and as if that other enactment were
an arbitration agreement, except in so far as the provision of this Part are inconsistent
with that other enactment or with any rules made thereunder.
1.8 Section 2(5) - Subject to the provisions of sub-section (4), and save in so far as is
otherwise provided by any law for the time being in force or in any agreement in force
between India and any other country or countries, this Part shall apply to all arbitrations
and to all proceedings relating thereto
1.9 Section 2 (7) - An arbitral award made under this Part shall be considered domestic
award.
1.10Section 8 - Power to refer parties to arbitration where there is an arbitration agreement.—
(1) A judicial authority, before which an action is brought in a matter which is the subject
of an arbitration agreement shall, if a party to the arbitration agreement or any person
claiming through or under him, so applies not later than the date of submitting his first
statement on the substance of the dispute, then, notwithstanding any judgment, decree or
order of the Supreme Court or any Court, refer the parties to arbitration unless it finds
that prima facie no valid arbitration agreement exists. (2) The application referred to in
sub-section (1) shall not be entertained unless it is accompanied by the original
arbitration agreement or a duly certified copy thereof. [Provided that where the original
arbitration agreement or a certified copy thereof is not available with the party applying
for reference to arbitration under sub-section (1), and the said agreement or certified
copy is retained by the other party to that agreement, then, the party so applying shall file
such application along with a copy of the arbitration agreement and a petition praying the
Court to call upon the other party to produce the original arbitration agreement or its duly
certified copy before that Court.] (3) Notwithstanding that an application has been made
under subsection (1) and that the issue is pending before the judicial authority, an
arbitration may be commenced or continued and an arbitral award made

6|Page
1.11Section 9 – Interim measures etc. by Court.— [(1)] A party may, before or during arbitral
proceedings or at any time after the making of the arbitral award but before it is enforced
in accordance with section 36, apply to a Court- (i) for the appointment of a guardian for
a minor or person of unsound mind for the purposes of arbitral proceedings; or (ii) for an
interim measure of protection in respect of any of the following matters, namely:- (a) the
preservation, interim custody or sale of any goods which are the subject-matter of the
arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the
detention, preservation or inspection of any property or thing which is the subject-matter
of the dispute in arbitration, or as to which any question may arise therein and
authorising for any of the aforesaid purposes any person to enter upon any land or
building in the possession of any party, or authorising any samples to be taken or any
observation to be made, or experiment to be tried, which may be necessary or expedient
for the purpose of obtaining full information or evidence; (d) interim injunction or the
appointment of a receiver; (e) such other interim measure of protection as may appear to
the Court to be just and convenient, and the Court shall have the same power for making
orders as it has for the purpose of, and in relation to, any proceedings before it. [(2)
Where, before the commencement of the arbitral proceedings, a Court passes an order for
any interim measure of protection under subsection (1), the arbitral proceedings shall be
commenced within a period of ninety days from the date of such order or within such
further time as the Court may determine. (3) Once the arbitral tribunal has been
constituted, the Court shall not entertain an application under sub-section (1), unless the
Court finds that circumstances exist which may not render the remedy provided under
section 17 efficacious.
1.12Section 11 (9) – In the case of appointment of sole or third arbitrator in an international
commercial arbitration, [the Supreme Court or the person or institution designated by
that Court] may appoint an arbitrator of a nationality other than the nationalities of the
parties where the parties belong to different nationalities.
1.13Section 11 (12) - (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8)
and sub-section (10) arise in an international commercial arbitration, the reference to the
“Supreme Court or, as the case may be, the High Court” in those sub-sections shall be
construed as a reference to the “Supreme Court”; and (b) where the matters referred to in
sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in any other arbitration, the
reference to “the Supreme Court or, as the case may be, the High Court” in those
subsections shall be construed as a reference to the “High Court” within whose local

7|Page
limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is
situate, and where the High Court itself is the Court referred to in that clause, to that
High Court.
1.14Section 17 - Interim measures ordered by arbitral tribunal.—(1) A party may, during the
arbitral proceedings or at any time after the making of the arbitral award but before it is
enforced in accordance with section 36, apply to the arbitral tribunal— (i) for the
appointment of a guardian for a minor or person of unsound mind for the purposes of
arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the
following matters, namely:— (a) the preservation, interim custody or sale of any goods
which are the subject-matter of the arbitration agreement; (b) securing the amount in
dispute in the arbitration; (c) the detention, preservation or inspection of any property or
thing which is the subject-matter of the dispute in arbitration, or as to which any question
may arise therein and authorising for any of the aforesaid purposes any person to enter
upon any land or building in the possession of any party, or authorising any samples to
be taken, or any observation to be made, or experiment to be tried, which may be
necessary or expedient for the purpose of obtaining full information or evidence; (d)
interim injunction or the appointment of a receiver; (e) such other interim measure of
protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral
tribunal shall have the same power for making orders, as the Court has for the purpose
of, and in relation to, any proceedings before it. (2) Subject to any orders passed in an
appeal under section 37, any order issued by the arbitral tribunal under this section shall
be deemed to be an order of the Court for all purposes and shall be enforceable under the
Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of
the Court.
1.15Section 20 – Place of arbitration.—(1) The parties are free to agree on the place of
arbitration. (2) Failing any agreement referred to in sub-section (1), the place of
arbitration shall be determined by the arbitral tribunal having regard to the circumstances
of the case, including the convenience of the parties. (3) Notwithstanding sub-section (1)
or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet
at any place it considers appropriate for consultation among its members, for hearing
witnesses, experts or the parties, or for inspection of documents, goods or other property.
1.16Section 28 (1) (a) – Rules applicable to substance of dispute.—(1) Where the place of
arbitration is situate in India,— (a) in an arbitration other than an international

8|Page
commercial arbitration, the arbitral tribunal shall decide the dispute submitted to
arbitration in accordance with the substantive law for the time being in force in India;
1.17Section 28 (1) (b) - (b) in international commercial arbitration,— (i) the arbitral tribunal
shall decide the dispute in accordance with the rules of law designated by the parties as
applicable to the substance of the dispute; (ii) any designation by the parties of the law or
legal system of a given country shall be construed, unless otherwise expressed, as
directly referring to the substantive law of that country and not to its conflict of laws
rules; (iii) failing any designation of the law under clause (a) by the parties, the arbitral
tribunal shall apply the rules of law it considers to be appropriate given all the
circumstances surrounding the dispute.
1.18Section 34 – Application for setting aside arbitral award.—(1) Recourse to a Court
against an arbitral award may be made only by an application for setting aside such
award in accordance with sub-section (2) and subsection (3). (2) An arbitral award may
be set aside by the Court only if— (a) the party making the application furnishes proof
that— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid
under the law to which the parties have subjected it or, failing any indication thereon,
under the law for the time being in force; or (iii) the party making the application was not
given proper notice of the appointment of an arbitrator or of the arbitral proceedings or
was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute
not contemplated by or not falling within the terms of the submission to arbitration, or it
contains decisions on matters beyond the scope of the submission to arbitration: Provided
that, if the decisions on matters submitted to arbitration can be separated from those not
so submitted, only that part of the arbitral award which contains decisions on matters not
submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or
the arbitral procedure was not in accordance with the agreement of the parties, unless
such agreement was in conflict with a provision of this Part from which the parties
cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b)
the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law for the time being in force, or 28 (ii) the arbitral award is in
conflict with the public policy of India. [Explanation 1—For the avoidance of any doubt,
it is clarified that an award is in conflict with the public policy of India, only if,— (i) the
making of the award was induced or affected by fraud or corruption or was in violation
of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of
Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.

9|Page
Explanation 2—For the avoidance of doubt, the test as to whether there is a
contravention with the fundamental policy of Indian law shall not entail a review on the
merits of the dispute.] [(2A) An arbitral award arising out of arbitrations other than
international commercial arbitrations, may also be set aside by the Court, if the Court
finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous
application of the law or by re-appreciation of evidence.] (3) An application for setting
aside may not be made after three months have elapsed from the date on which the party
making that application had received the arbitral award, or, if a request had been made
under section 33, from the date on which that request had been disposed of by the arbitral
tribunal: Provided that if the Court is satisfied that the applicant was prevented by
sufficient cause from making the application within the said period of three months it
may entertain the application within a further period of thirty days, but not thereafter. (4)
On receipt of an application under sub-section (1), the Court may, where it is appropriate
and it is so requested by a party, adjourn the proceedings for a period of time determined
by it in order to give the arbitral tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the opinion of arbitral tribunal will
eliminate the grounds for setting aside the arbitral award. (5) An application under this
section shall be filed by a party only after issuing a prior notice to the other party and
such application shall be accompanied by an affidavit by the applicant endorsing
compliance with the said requirement. (6) An application under this section shall be
disposed of expeditiously, and in any event, within a period of one year from the date on
which the notice referred to in sub-section (5) is served upon the other party.
1.19Section 36 - Enforcement.—(1) Where the time for making an application to set aside the
arbitral award under section 34 has expired, then, subject to the provisions of sub-section
(2), such award shall be enforced in accordance with the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the Court. (2)
Where an application to set aside the arbitral award has been filed in the Court under
section 34, the filing of such an application shall not by itself render that award
unenforceable, unless the Court grants an order of stay of the operation of the said
arbitral award in accordance with the provisions of sub-section (3), on a separate
application made for that purpose. (3) Upon filing of an application under sub-section (2)
for stay of the operation of the arbitral award, the Court may, subject to such conditions
as it may deem fit, grant stay of the operation of such award for reasons to be recorded in

10 | P a g e
writing: Provided that the Court shall, while considering the application for grant of stay
in the case of an arbitral award for payment of money, have due regard to the provisions
for grant of stay of a money decree under the provisions of the Code of Civil Procedure,
1908 (5 of 1908).
1.20Section 37 - Appealable orders.—(1) An appeal shall lie from the following orders (and
from no others) to the Court authorised by law to hear appeals from original decrees of
the Court passing the order, namely:-- [(a) refusing to refer the parties to arbitration
under section 8; (b) granting or refusing to grant any measure under section 9; (c) setting
aside or refusing to set aside an arbitral award under section 34.] (2) An appeal shall also
lie to a Court from an order of the arbitral tribunal.-- (a) accepting the plea referred in
sub-section (2) or sub-section (3) of section 16; or (b) granting or refusing to grant an
interim measure under section 17. (3) No second appeal shall lie from an order passed in
appeal under this section, but nothing in this section shall affect or take away any right to
appeal to the Supreme Court.
1.21Section 45 – Power of judicial authority to refer parties to arbitration.— Notwithstanding
anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a
judicial authority, when seized of an action in a matter in respect of which the parties
have made an agreement referred to in section 44, shall, at the request of one of the
parties or any person claiming through or under him, refer the parties to arbitration,
unless it finds that the said agreement is null and void, inoperative or incapable of being
performed.
1.22Section 47 - Evidence.—(1) The party applying for the enforcement of a foreign award
shall, at the time of the application, produce before the court— (a) the original award or a
copy thereof, duly authenticated in the manner required by the law of the country in
which it was made; (b) the original agreement for arbitration or a duly certified copy
thereof; and (c) such evidence as may be necessary to prove that the award is a foreign
award. (2) If the award or agreement to be produced under sub-section (1) is in a foreign
language, the party seeking to enforce the award shall produce a translation into English
certified as correct by a diplomatic or consular agent of the country to which that party
belongs or certified as correct in such other manner as may be sufficient according to the
law in force in India. [Explanation—In this section and in the sections following in this
Chapter, “Court” means the High Court having original jurisdiction to decide the
questions forming the subject-matter of the arbitral award if the same had been the
subject-matter of a suit on its original civil jurisdiction and in other cases, in the High

11 | P a g e
Court having jurisdiction to hear appeals from decrees of courts subordinate to such High
Court.]
1.23Section 48(1) (e) – Conditions for enforcement of foreign awards.—(1) Enforcement of a
foreign award may be refused, at the request of the party against whom it is invoked,
only if that party furnishes to the court proof that— (e)- the award has not yet become
binding on the parties, or has been set aside or suspended by a competent authority of the
country in which, or under the law of which, that award was made.

2. Specific Relief Act, 1963:3


2.1 Section 14(2) - Contracts not specifically enforceable.—The following contracts cannot
be specifically enforced, namely:— (2) a contract, the performance of which involves the
performance of a continuous duty which the court cannot supervise;
2.2 Section 37 – . Temporary and perpetual injunctions.—(1) Temporary injunctions are
such as are to continue until a specific time, or until the further order of the court, and
they maybe granted at any stage of a suit, and are regulated by the Code of Civil
Procedure, 1908 (5 of 1908). (2) A perpetual injunction can only be granted by the
decree made at the hearing and upon the merits of the suit; the defendant is thereby
perpetually enjoined from the assertion of a right, or from the commission of an act,
which would be contrary to the rights of the plaintiff.

3. Code of Civil Procedure, 1908:4


3.1 Order VII, Rule 11(a) – Rejection of plaint— The plaint shall be rejected in the
following cases:— (a) where it does not disclose a cause of action;

3
The Specific Relief Act, 1963.
4
The Code of Civil Procedure, 1908.

12 | P a g e
ANALYSIS OF THE COURT -

ISSUE I - Whether or not Part I of the Arbitration and Conciliation Act of 1996 is
applicable in foreign seated arbitration or its applicability is limited to arbitrations
which take place in India?

In deciding the said issue as to whether Part I of the Arbitration and Conciliation Act of 1996
is applicable in foreign seated arbitration or its applicability is limited to arbitrations which
take place in India the Court conclusively said that the territorial principle of the act was
adopted by the UNCITRAL Model Law unequivocally eventually limiting the applicability
of Part I of the act to arbitrations which take place in India itself. According to the said
principles the governing law of a particular arbitration is agreed by the parties in an
arbitration agreement as the “place” or “seat” of the arbitration. The court further continued
by stating that the said territorial principle of the act precludes the Part I of the act from being
applicable to an arbitration seated in foreign even if the said agreement between the parties
provide that the arbitrary proceedings will be governed by the Act.

a) What was the interpretation made by the court of Section 2(2) of


Arbitration and Conciliation Act of 1996?
The main issue while dealing with the aforementioned facts that arose before
the court was if in Section 2(2) of the arbitration act of 1996 the absence of the
word “only” makes part I of it applicable to all sort of arbitrations inclusive of
the arbitrations that are seated outside India. Before this the court in its
previous judgment which is in Bhatia International and Venture Global had
held that the Part I would be applicable to all the arbitrations inclusive of the
ones seated outside India until and unless the parties to the agreement by it
either expressly or impliedly exclude any or all of its provisions. The
Appellant’s main contention was similar that such absence of the word “only”
in this section [2(2)] of the act gives permission of its (Part I) applicability to
arbitrations held outside India the reason being there a difference from Article
1(2) of UNCITRAL Model Law, thereby further on restricting the
applicability of the said provision would lead to huge conflict amongst all the
rest of the provisions in the act.
The court held that omission of the word “only” has no relevance and while
applying the principles of literal interpretation and with regard of the

13 | P a g e
legislative intention held that the part I’s applicability is limited to arbitration
in India only. It was also observed that it is not permissible for the court while
construing a provision to reconstruct the provision. It further said while
observing that the present wording of the Act does not deviate from the
territorial principle as accepted under the Model Law and absence of "only" in
the said provision does not change the content or the intention of the
legislation.
b) Was there any conflict according to the court with Section 2(4) and 2(5) of
Arbitration and Conciliation Act of 1996?
The Court further moved so as to figure out whether the above mentioned
interpretation of Section 2(2) of arbitration act would end being a conflict to
the clause 4 and 5 of the section 2 for which the appellants had contended that
the language of the two sub clauses makes part I applicable to all arbitration
whether in or outside India.
The court dealt with this categorically and said that firstly there is no conflict
amongst the said provisions and that 2(4) is applicable to all arbitration
covered by part I and for the reasons and purpose of this section enactment
would be limited to only an act made by the Indian Parliament. Furthermore
2(5) is just an extension to 2(4) in order to deal with all arbitrary related
proceedings along with an exception of statutory or compulsory arbitrations
(only the arbitrations to which part I is applicable). Therefore it was concluded
by saying that the part I of the act applies to all arbitration held in India which
inconsistent with this acts provisions and are in accordance with the Indian
enactments provisions only.
c) Is an Award under Section 2(7) of the Arbitration and Conciliation Act of
1996 a Domestic Award?
The objective of the act is to indicate that Part I applies to all domestic as well
as International Arbitrations that are conducted in India. There are two things
included in the scope of Domestic awards made within the part I these are
arbitration between the domestic parties along with an award given in an
International arbitration held in India. Coming to the section 2(7) its main
object is to differentiate the domestic awards and foreign awards which are
covered under part II of the arbitration act. The main point which proves that
there is no overlapping between the two parts is that the later deals with only

14 | P a g e
the arbitrations that are held outside India thereby categorizing the same to be
as the foreign awards, the court held on this aspect that the act is as based on
territorial principle it excludes the part I’s applicability to any foreign seated
arbitration even if the agreement is being governed by this arbitration act’s
provisions.
d) Do the parties have any autonomy?
This act allows the parties to decide the arbitration’s place, the court while
giving its interpretation to section 20 of the act with respect to place or seat of
an arbitration cleared that if the seat is India the parties shall be free to select
any venue or place within India to conduct the proceedings, although the said
provision has to be read with the Section 2(2) of the act in order to understand
the applicability of territorial principle. In cases of absence or failure to choose
a law governing the arbitration proceedings by the parties those would be
governed in accordance with the law of that country in which the arbitration is
being held in order to have close connection with the arbitration proceedings.
The court also has further differentiated concept of venue and seat and stated
its significance in the proceedings of an arbitration. The part I will not be
applicable to the extent till where the arbitration law is inconsistent. The court
further went on by interpreting section 28 held that the arbitrations that are
under part I are not international commercial arbitration which is why they
would be governed by the Indian substantive law so that the the parties are
prevented from the arbitration with a foreign governing law who are domestic
and no such compulsion prevails in section 2(1) (f) of the act in cases of
international commercial arbitration. The main purpose of the act is to separate
international and the domestic arbitrations and to convey the intention of not
providing an applicability outside the territory to part I of the arbitration act.

ISSUE II - Whether or not there is any overlapping of the provisions of Part I and
Part II of the Arbitration and Conciliation Act of 1996?

The court while dealing with the facts of this case held that there is no overlapping when it
comes to the provisions of part I and II of the act and the part II is not a supplementary
provision. There is a complete difference between both the parts as when as much as part I is

15 | P a g e
concerned it deals with all the four phases of arbitration, these are challenge, conduct,
recognition and commencement while on the other hand part II in only restricted to
enforcement of a foreign award. The court further said that the regulation of an arbitration
and challenge would be done by the court of country in which arbitration is done thus part I’s
provisions applicability to foreign awards will defeat the main object of the act. The Court
has also clarified that approaching judicial authority under the clause in Section 45 of the Act,
does not make Part I applicable to foreign arbitrations held outside India.

a) What is the enforcement of Foreign Award under Section 48(1) & (2)
though being under Part II construed as falling under Part I of the
Arbitration and Conciliation Act of 1996?
No provisions to nullify foreign award is given in the act, section 36 that deals
with challenge of awards being there in part I, which restricts its scope to
domestic awards, section 48 recognizes that the courts of 2 nations are
competent to suspend or annul any award inclusive of the country where the
award was made and the law under which the award was made. In case the
said award is set aside by courts of either of the countries as stated above then
the enforcement of foreign award India would be refused, the appellant on
their behalf said that the courts of both the countries have the jurisdiction to
annul the said award. The court has further moved on by clarifying that the
expression ‘the law under which the award was made’ refers to procedural law
of the country and thereby has no such reference to the substantive law of the
contract between the parties. The court in contrary to the previous judgments
held that awards passed in arbitration that ae done outside India cannot be
annulled under this acts provisions.
b) What is the applicability of Section 9 to the cases of foreign seated
arbitrations?
With respect to the applicability of the Section 9 which deals with interim
relief the appellants main contention to foreign awards was not to leave either
of the parties without any remedy; the part I’s applicability was therefore only
to extent of granting such interim relief and not any annulment. This section
acts for the arbitration proceeding and give interim relief before or during or
after the award is given but before the awards enforcement under 36; the court
also held that section 36 being applicable only to domestic awards, pertains

16 | P a g e
only to arbitrations with Indian seat, thereby Section 9 cannot be made
applicable to arbitrations held outside India. It was further clarified that if
parties voluntarily chose a foreign seat, it would be implied that consequences
of such choice would be known to them and non-applicability of Section 9
would not leave them without any remedy.
c) Is there any relief for awards passed in Non-Convention Countries?
The awards that are passed in non convention countries are not included in this
act, the court thus stated that non inclusion of it does not not in any manner
amount to launa and also that the intention needs to be understood from
language of the legislation and the aspects that are not included in the same
cannot be open for interpretation like that. Only the parliament has the ability
to remove such defects and in its absence the awards passed under the act and
in contravention countries are only having this acts applicability.
d) What is the maintainability of suits for Interim Relief?
In the code of civil procedure to maintain a suit the existence of cause of
action is the basis. For an interim relief only the mere pendency would not
construe to be a sufficient ground, the court specifically stated on this that “no
suit on the merits of the arbitration would be maintainable as the same would
be subject to Sections 8 and 45 of the Act and relief if any would be purely to
safeguard the property in dispute before the Arbitrator’. No suit will be
maintainable when there is no substantive relief on merit of arbitration and in
the case of valid cause of action. The relief claimed would be subject to future
award that may be passed and to get proper relifs cause of action would not be
sufficient. Also, no provision of this Code or this Act has powers to give
interim relief in suits when there is no substantive suit, in pending arbitrations
held outside India.

17 | P a g e
CONCLUSION

As there is narrow application of the present judgment to arbitration and arbitration


agreements executed post September 6, 2012, the Appellants in the present appeal are
effectively on the losing side as their arbitration agreements were executed prior to the said
period and hence the present judgment is not applicable to them. This judgment has cleared
various legal issues which were harming the image of laws of the Indian arbitration. It has
firstly solved the main issue of the foreign parties that they were facing while arbitrating
against any party from India by ensuring minimum interference when the arbitration is
outside India by the local courts. It also further on cleared that there can be no annulment
proceedings in India against any award which is made outside India as the Indian arbitration
law is at par with the Internationla jurisdiction and it has also removed the difficulity to an
extent which the foreign investors were against the Indian parties facing to enforce foreign
awards in India.

Although this judgment overruled Bhatia International v Bulk trading S.A. and Anr. 5
hereinafter referred as ‘Bhatia International’ in which the court said that the provisions of part
I would apply to International Commercial Arbitration that take place outside India (the
scope of this case was further broadened in the case of Venture Global Engineering v Satyam
Computer Services Ltd.6 by stating that te Part I would apply even for foreign awards for
interim orders, pursuant to which the courts could decide and hear the matter s that were
challengeing the foreign arbitration award under section 34 of the act) but it somewhere
failed to focus on an important thing that was pointed out by the court which was too allow
section 9 applicability to arbitrators seated outside India, in that case the court had observed
the important point to allow section 9’s applicability was that interim orders from foreign
courts and arbitration tribunals are unenforceable in India and such a situation would leave
foreign parties without any remedy, and now it is difficult for foreign parties to seek such
reliefs against the Indian parties seated outside India arbitration. This Judgment also didn’t
address the issue as to can the domestic parties choose a foreign seat by excluding the Part I’s
applicability which has been a debatable issue. Also the court has only used its ruling in the
perspective of the arbitration agreements that are executed post this case which is clearly a
negative part of it as it might lead to even more further confusion in future cases according to

5
(2002) 4 S.C.C. 105
6
(2008) 4 SCC 190

18 | P a g e
me as if the agreement is before this case then the rules laid in Bhatia International and
Global Venture case will be applied which will be two sets of rules running parallel in our
country. According to me to avoid such confusion court could have restricted the
applicability of the case only to the cases that will arise in the future and prohibit the
applicability to the cases that have already been reached the stage of finality thereby applying
the prospective overruling doctrine in the case.

So basically in simpler terms if I see the Bharat International and Venture Global case
overruling lead to some legal consequences which were: firstly, now Indian court should deal
with matters concerning the aid of foreign seated arbitration or applications to set aside
foreign awards as per sec 34; secondly Indian court’s jurisdiction will no longer depend on its
express or implied intentions of the parties, it will accordingly not be necessary for parties to
expressly exclude the application of Part I of the Act in arbitration agreements that provide
for foreign-seated arbitration on or after 6 September 2012 (this is a standard practice where
there is at least one Indian party and there is a foreign seated arbitration clause for the parties
who want minimal intervention from the courts of India); thirdly, it has been made very clear
in the case of BALCO that the Indian courts will further not even have any jurisdiction to
consider an ordinary civil suit filed under the CPC to get an interim relief in aid of foreign-
seated arbitrations; and lastly but mainly that Part I of the 1996 Act will continue to apply to
all arbitrations (i.e. domestic and international) seated in India, in the arbitrations seated in
India, the Indian courts, in their capability, will have vider jurisdiction under Part I of the
1996 Act to supervise and support the arbitral process which shall be including the power to
set aside an award made in such arbitration.

Thus from the aforementioned discussions it can be said that the BALCO decision is just a
good starting by the court in the right direction but not the solution for all the problems that
are associated with an arbitration in India, although this BALCO decision does give hope to
new as well as a promising era for arbitration in our country.

19 | P a g e