Category: Applicable Laws

ISSUE:

Whether Indian courts can overturn a foreign arbitral ruling under the Arbitration and Conciliation Act of 1996?

Whether Part I of the Arbitration and Conciliation Act, 1996, applicable when the arbitration seat is outside of India? Under Section 34, read with Section 9 of the Act, is the aggrieved party entitled to challenge a foreign award made outside India?

RULE:

Part I of the Arbitration and Conciliation Act of 1996 applies to all arbitrations, including international commercial arbitrations, unless the parties expressly or implicitly exclude all or all of its terms by agreement.

Section 48(1)(e) of the Act, read together with Section 48(3) of the Act, states that an action to set aside a foreign award within the meaning of Section 44 of the Act must be brought before the competent authority of the country in which, or under the legislation of which, the award was issued.

ISSUE:

Whether Indian Courts and authorities can exercise jurisdiction over disputes with a foreign arbitration law under Part I of the Arbitration and Conciliation Act 1996?

Whether the petition filed under section 34 of the Arbitration and Conciliation Act, 1996 at the Delhi High Court is maintainable?

RULE:

in Bhatia International v. Bulk Trading S.A. & Anr., (2002) 4 SCC 105, resurrected this doctrine of concurrent jurisdiction by holding, in paragraph 32, that even where arbitrations are held outside India, unless the parties agree to exclude the application of Part-I of the Arbitration Act, 1996, either expressly or by necessary implication, the courts in India will exercise concurrent jurisdiction with the court in the country in which the foreign award was made

ISSUE:

Whether foreign awards be challenged in Indian Courts?

RULE:

Regardless of when the contract was signed, only the foreign court located at the seat of the arbitration can rule on a substantive challenge to a foreign award.

ISSUE:

Whether two companies incorporated in India choose a forum for arbitration outside India?

Whether an award made at such a forum outside India can be enforceable?

RULE:

Part II of the Indian Arbitration and Conciliation Act 1996 (the “Arbitration Act”) applies to the enforcement of foreign awards in India

There are four criteria for an award to be considered a foreign award: (i) the dispute must be considered to be a commercial dispute under the law in force in India, (ii) it must be made under a written arbitration agreement, (iii) the dispute must arise between “persons” (without regard to their nationality, residence, or domicile), and (iv) the arbitration must be conducted in a New York Convention country.

ISSUE:

Whether a clause in the arbitration agreement specifying exclusive jurisdiction be nullified?

RULE:

If the arbitration agreement between the parties contains an exclusive jurisdiction clause that specifies a certain location as having jurisdiction over all issues related to the arbitration agreement, that provision by itself would nullify the jurisdiction of any other court in that matter.

Even if the entire cause of action does not occur at the location given exclusive jurisdiction, this will still be affirmed.

ISSUE:

Whether Indian courts had jurisdiction over issues from international arbitration agreements involving parties who had completed numerous contracts, some before and some after the landmark decision in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (BALCO)?

Whether the language and circumstances of the arbitration agreement impliedly precluded Indian courts from exercising jurisdiction, specifically whether London was designated as the arbitral seat?

RULE:

The decision in this case was primarily based on the interpretation of the arbitration agreement and the applicability of Indian arbitration law. The court reviewed the concepts of "express or implied exclusion" of Part I of the Arbitration and Conciliation Act, 1996, as well as the notion of "presumed intention" and the significance of attaining a "fair result."

ISSUE:

Whether awards passed outside India, be challenged in Indian Courts?

RULE:

The parties expressly agreed that the arbitration will be conducted outside India, Part II of the Arbitration and Conciliation Act, 1996 is excluded and, hence cannot be challenged in Indian Courts.

ISSUE:

Whether Indian courts have the authority to give interim relief in international commercial arbitrations if the seat of arbitration is in a foreign country and the arbitration agreement does not expressly exclude Indian court jurisdiction?

Whether interpreting the Indian Arbitration and Conciliation Act, 1996 allows Indian courts to exercise authority and intervene in foreign-seated arbitrations, and whether such intervention affects the enforceability of arbitration agreements and awards in international commercial contracts involving Indian parties?

RULE:

Indian courts can award temporary relief and intervene in international commercial arbitration matters, provided the parties' arbitration agreement does not expressly or tacitly preclude such jurisdiction. The Bhatia International case allowed Indian courts to exercise jurisdiction in concerns about international commercial arbitration proceedings outside India to provide interim protection measures. In this case, Indian courts modified the circumstances under which they can intervene in disputes involving foreign parties.

ISSUE:

Whether there is concurrent jurisdiction of two Courts, is the Impugned Order correct to hold that as a matter of party autonomy, the parties have made an express choice in conferring jurisdiction on the Courts?

RULE:

A choice of seat is itself an expression of party autonomy and carries with it the legal effect of conferring exclusive jurisdiction on the Courts of the seat.

ISSUE:

Whether Part I of the Arbitration and Conciliation Act 1996 is applicable to arbitration held outside the territory of India?

RULE:

The Jurisdictional Theory of Arbitration or the Territorial Theory in UNCITRAL explains broadly the role of the Courts at the seat of Arbitration having supervisory powers and control over the proceedings taking place within the boundaries of its territory.