India, High Court of Gujarat
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India / 30 July 2018 / India, High Court of Gujarat / Interface Brokerage and Research Ltd. v. DMS Investment Advisory Pvt. Ltd. / First Appeal No. 836 of 2018
Country India Court India, High Court of Gujarat Date 30 July 2018 Parties Interface Brokerage and Research Ltd. v. DMS Investment Advisory Pvt. Ltd. Case number First Appeal No. 836 of 2018 Source http://gujarathighcourt.nic.in (website of the High Court of Gujarat)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5624&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 24 July 2018 Parties IMC Limited v. Deendayal Port Trust Case number Special Civil Application No. 5694 of 2018 Applicable NYC Provisions I Source http://gujarathighcourt.nic.in (website of the High Court of Gujarat)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5623&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 19 September 2017 Parties Akrata Shipping S.A. v. Pipavav Defense and Offshore Engineering Company Limited Case number Special Civil Application No. 15647 of 2015 with Special Civil Application No. 15649 of 2015 with Special Civil Application No. 15650 of 2015 with Special Civil Application No. 15651 of 2015 Source http://gujarathighcourt.nic.in (website of the High Court of Gujarat)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5622&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 05 September 2017 Parties MV Nicolaos A v. Indian Farmers Fertilizers Cooperative Case number Civil Application (OJ) No. 421 of 2014 in Admirality Suit No. 19 of 2014 Source http://gujarathighcourt.nic.in (website of the High Court of Gujarat)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5621&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 08 August 2017 Parties OCI Corporation v. Kandla Export Corporation Case number Petn. under Arbitration Act No. 2 of 2017 to Petn. under Arbitration Act No. 10 of 2017 Applicable NYC Provisions IV | V | V(2) | V(2)(b) Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5587&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 07 February 2005 Parties Swiss Singapore Overseas Enterprises Pvt Ltd v. M/V African Trader Case number Civil Application No. 23 of 2005 Applicable NYC Provisions I | II Source http://gujarathighcourt.nic.in (website of the High Court of Gujarat)
Languages English Summary Swiss Singapore Overseas Enterprises (“Swiss Singapore”, the charterer) entered into a charterparty with M/V African Trader (“African Trader”, the owner), which African Trader alleged provided for arbitration in Durban, South Africa. After a dispute arose, Swiss Singapore launched a legal action before the High Court of Gujarat, Ahmedabad. African Trader applied to the High Court to stay the action commenced by Swiss Singapore, pursuant to Section 45 of the Arbitration and Conciliation Act, 1996 (the “1996 Act”) (mirroring Article II(3) NYC). In its argument, Swiss Singapore relied on Articles I and II(3) NYC. The High Court of Gujarat rejected African Trader’s application, finding that Section 45 of the 1996 Act was inapplicable as the Indian Central Government had not issued a notification that South Africa was a reciprocating state party to the NYC. Consequently, the High Court held, that the award could not be a “foreign award” as the term was defined in Section 44 of the 1996 Act (implementing Articles I and II NYC) and, as a result, Section 45 was inapplicable. According to the High Court, notification by the Central Government is one of the four conditions set out in Section 44 of the 1996 Act: (i) the award is on a difference arising out of legal relationships considered as commercial under the law of India; (ii) the award was made on or after 11 October 1960; (iii) the award was made in pursuance of an agreement in writing for arbitration to which the NYC applied; and, (iv) the award was made in one of the reciprocating contracting States notified by the Central Government. The High Court found the award met the first three conditions but, due to the lack of notification, failed to meet the fourth. In addition, the Court considered that the alleged arbitration agreement was “absolutely vague, ambiguous and self-contradictory”. In the Court’s view, such an agreement was not capable of being performed and therefore fell within an exception of Section 45. Finally, the Court noted that in reaching its decision it also placed weight to the fact that African Trader had moved the application to stay only after Swiss Singapore had commenced legal action, something which – according to the Court – showed that African Trader did not intend to refer the dispute to arbitration. see also :
- II / 2. ANALYSIS (II) / ARTICLE II(3) / B. Enforcement of arbitration agreements under article II(3) / iii. 'Incapable of being performed' / §114
- I / 2. ANALYSIS (I) / ARTICLE I(3) / a. Meaning of “legal relationships considered as commercial under the national law of the State making such declaration” / §86
- I / 2. ANALYSIS (I) / ARTICLE I(3) / a.The territorial criterion and the reciprocity reservation / §73
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1390&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 19 December 2002 Parties Nirma Ltd v. Lurgi Energie und Entsorgung GmbH and ors Case number First Appeal No. 1787 of 2002; Civil Applications No. 6301, 6556 and 8562 of 2002 Source http://gujarathighcourt.nic.in (website of the High Court of Gujarat)
Languages English Summary Nirma Ltd (“Nirma”) entered into a contract with the Lurgi Energie und Entsorgung GmbH (“Lurgi”) for the provision of know-how and supervision over a certain project, which contained a clause for arbitration under the rules of the International Chamber of Commerce (“ICC”) in London. The contract was governed by the “laws of India”. A dispute arose and Lurgi commenced an arbitral proceeding in London. The tribunal issued a First Partial Award on jurisdiction, holding that the dispute between the parties fell within the scope of the arbitration clause in the contract. Nirma applied to District Court in Bhavnagar, India, to set the First Partial Award aside pursuant to Section 34 of the Arbitration and Conciliation Act, 1996 (the “1996 Act”). The District Court dismissed Nirma’s application. Nirma appealed the District Court’s decision to the High Court of Gujarat. The High Court of Gujarat dismissed Nirma’s appeal, upholding the decision of the District Court on the ground that the First Partial Award did not constitute an “award” within the meaning of Section 34 of the 1996 Act and, consequently, could not be set aside. The High Court considered that there was “no doubt about the fact that the arbitration in question is an international commercial arbitration”. However, the High Court stressed, Section 34 of the 1996 Act made no distinction between foreign or domestic awards and, consequently, an Indian court had the power to set aside an award made outside India. The High Court found that even an award made in an arbitration with its seat outside India would be a “domestic award” if the agreement pursuant to which it was made was governed by the law of India. In reaching this conclusion, the Court did not that Section 44 of the 1996 Act (implementing Articles I and II NYC) set out the essential attributes of a foreign award as (i) an award on differences between persons, arising out of legal relationships, whether contractual or not, considered commercial under the law in force in India; (ii) made after or on 11 October 1960 in pursuance of an agreement in writing to which the NYC applies; (iii) made in one of the territories that the Central Government, by notification to the Official Gazette, has declared as a territory to which the NYC applies. The Court also briefly surveyed the content of Sections 46, 48 (mirroring Article V NYC) and 49 of the 1996 Act. On the facts of the case, the High Court considered that Indian law governed the arbitration agreement. However, the High Court concluded, the First Partial Award was not an “award” as understood by Section 24 of the 1996 Act but only an “order or decision” which could only be challenged at a subsequent stage, if the final award itself were to be challenged. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1389&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 19 April 1985 Parties Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd and ors Applicable NYC Provisions III Source AIR 1986 Guj 62; (1986) 1 GLR 77 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Brace Transport Corporation (“Brace”) entered into a contract with the second respondent (“Orri”) for the sale of a vessel, which provided for arbitration in England. Orri nominated the first respondent (“Orient”) to purchase the vessel. A dispute arose and the matter was referred to arbitration, where an award was rendered in favour of Brace. After the award was rendered, Brace found out that the vessel had been sold to the third respondent, a company owned by the Indian Government, although the third respondent had yet to pay Orient and Orri. In the meantime, the third respondent sold the vessel, which was situated in India, to the fourth respondent to break it up. Brace applied to the Bhavnagar Court, in Gujarat, India, to enforce the award against the vessel. Further to its application for enforcement, Brace asked the Bhavnagar Court to restrain the fourth respondent from breaking up the vessel and the third respondent from making the payment to Orient and Orri. The Bhavnagar Court granted the two applications for interim relief sought by Brace. Orient and Orri appealed the decision on the ground that the Bhavnagar Court had no jurisdiction over the subject-matter of the award, as required by Section 5(1) Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”). The High Court of Gujarat allowed the appeal, finding that the Bhavnagar Court had no jurisdiction over the subject-matter of the dispute, as Orient and Orri did not conduct any business in Bhavnagar. According to the Court, the term “jurisdiction” in the phrase “any court having jurisdiction over the subject-matter of the award” referred to the requirements of jurisdiction under the Indian law of civil procedure. The Court rejected Brace’s argument that the above phrase only required the court to look at whether the subject-matter of the award was pecuniary. This was because, the High Court reasoned, Section 2 of the 1961 Act only applied to commercial relationships and, therefore, by definition the subject-matter of an award to which the Act applied would be pecuniary. In addition, the Court held that Section 4 of the 1961 Act, which the Court considered as “corresponding” to Article III NYC, provided that the rules of procedure of the place of enforcement governed the enforcement of an award. Accordingly, the Court noted, the Indian civil procedure rules on jurisdiction had to be considered in deciding whether the Bhavnagar Court had jurisdiction over the subject-matter of the award. reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1377&opac_view=6 Attachment (1)
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Country India Court India, High Court of Gujarat Date 04 May 1982 Parties Union of India and ors v. Lief Hoegh & Co and ors Applicable NYC Provisions I | II | XIV Source AIR 1983 Guj 34; (1983) 1 GLR 292 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Union of India (“Union”) entered into a charterparty with Lief Hoegh (“Lief”), which provided for arbitration under the UK Arbitration Act 1950 in London. A dispute arose and Union launched legal action against Lief before the High Court of Gujarat. Lief applied to have the action stayed in favour of arbitration, pursuant to Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article II(3) NYC). The High Court of Gujarat upheld Lief’s application, ordering a stay of the legal action in favour of arbitration. The High Court held that Section 3 of the 1961 Act applied when four requirements were satisfied: (i) there was an agreement to which Article II NYC applied; (ii) a person who was party to such an agreement had initiated legal action; (iii) the legal action pertained to a matter which fell within the scope of the arbitration agreement; and, (iv) the other party had taken no step in the legal action to indicate that he had submitted to the jurisdiction of the court. The Court reasoned that, once these requirements were satisfied, Section 3 of the 1961 Act mandated that it refer the matter to arbitration, provided that the agreement was not void, inoperative or incapable of being performed. The Court found the four conditions to be met on the facts. It then turned to an alternative argument advanced by Union, namely that the 1961 Act was wholly inapplicable to the present case as the charterparty was not a “commercial relationship” as understood in Section 2 of the 1961 Act (incorporating, in modified language, Articles I and II NYC). The Court rejected that argument too, holding that the term “commercial” is “a word of the largest import and takes in its sweep all the business and trade transactions in any of their forms”. Similarly unconvincing, the Court reasoned, was Union’s reliance on Article XIV NYC. The Court considered that there was no circumstance in which India would be applying the NYC in manner more expansive than that applied by other state parties to the NYC. After referring to Article I NYC, the High Court stressed that “the only limitation [to the application of NYC] is that [the dispute] must arise out of a contract which is commercial in nature”. The High Court concluded that granting a stay of the legal action in the present case would not amount to a denial of the sovereignty of the Indian government. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1376&opac_view=6 Attachment (1)
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