Available documents (212)
India / 18 September 2009 / India, High Court of Delhi / Usha Drager Pvt. Ltd. and another v. Dragerwerk AG and others / FAO No. 111-112/2006
Country India Court India, High Court of Delhi Date 18 September 2009 Parties Usha Drager Pvt. Ltd. and another v. Dragerwerk AG and others Case number FAO No. 111-112/2006 Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5859&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 17 September 2009 / India, High Court of Delhi / Naval Gent Maritime Limited v. Shivnath Rai Harnarain (I) Ltd. / Ex. P. No. 275/2007
Country India Court India, High Court of Delhi Date 17 September 2009 Parties Naval Gent Maritime Limited v. Shivnath Rai Harnarain (I) Ltd. Case number Ex. P. No. 275/2007 Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5857&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 16 July 2009 / India, High Court of Delhi / Max India Limited v. General Binding Corporation / FAO (OS) No. 193/2009
Country India Court India, High Court of Delhi Date 16 July 2009 Parties Max India Limited v. General Binding Corporation Case number FAO (OS) No. 193/2009 Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5856&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 27 January 2009 / India, High Court of Delhi / M/s Sara International Ltd. v. Arab Shipping Co. (P) Ltd / OMP No. 325/2005
Country India Court India, High Court of Delhi Date 27 January 2009 Parties M/s Sara International Ltd. v. Arab Shipping Co. (P) Ltd Case number OMP No. 325/2005 Applicable NYC Provisions V | V(1) | V(1)(d) Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5855&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 16 January 2009 / India, High Court of Delhi / W.P.I.L. v. NTPC Ltd. and others / IA Nos. 2803/2006, 14366/2006 & 14367/2006 in CS (OS) No. 1363/2005
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Original LanguageAdobe Acrobat PDFIndia / 27 November 2008 / India, High Court of Delhi / Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain (India) Co. / CS(OS) 541/1998
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Original LanguageAdobe Acrobat PDFIndia / 29 October 2008 / India, High Court of Madras / Ramasamy Athapan and Nandakumar Athappan v. Secretariat of Court, International Chamber of Commerce / A, No. 2670 of 2008, A. No. 1236 of 2008, O.A. No. 277 of 2008, and A. No. 2671 of 2008
Country India Court India, High Court of Madras Date 29 October 2008 Parties Ramasamy Athapan and Nandakumar Athappan v. Secretariat of Court, International Chamber of Commerce Case number A, No. 2670 of 2008, A. No. 1236 of 2008, O.A. No. 277 of 2008, and A. No. 2671 of 2008 Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Plaintiffs (India) entered into a Joint Venture agreement with several companies located in various countries and agreed to arbitrate any disputes at the ICC in Paris under Indian law. Following a dispute, and after the initiation of criminal and civil proceedings against the plaintiffs and some of the defendants, two of the defendants (6 & 10) sought arbitration in Paris. The plaintiffs and some of the defendants resisted arbitration arguing, among other things, that the arbitration agreement was void, inoperative, and incapable of being performed under Section 45 of India's 1996 Arbitration and Conciliation Act ("Act") (which directly incorporates Article II(3) NYC). The Court enjoined defendants 6 and 10 from submitting the matter to arbitration, on the grounds that their decision to bring numerous civil and criminal suits before Indian courts rendered the arbitration agreement inoperative under Section 45 of the Act. Although the agreement was neither void nor incapable of performance under Indian contract law, the Court found that the defendants were thwarting the purpose of the arbitration clause by filing several suits before submitting the matter to arbitration, and that these actions negated their ability to invoke the clause here. The Court further noted that the plaintiffs had not submitted to the jurisdiction of the arbitral tribunal by requesting a stay of the arbitration, and therefore an injunction was appropriate in this case see also :
- II / 2. ANALYSIS (II) / ARTICLE II(3) / B. Enforcement of arbitration agreements under article II(3) / ii. 'Inoperative' / §109
- II / 2. ANALYSIS (II) / ARTICLE II(3) / B. Enforcement of arbitration agreements under article II(3) / iii. 'Incapable of being performed' / §112
- II / 2. ANALYSIS (II) / ARTICLE II(3) / B. Enforcement of arbitration agreements under article II(3) / i. 'Null and void' / §106
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=880&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country India Court India, Supreme Court Date 11 October 2008 Parties Unissi v. PGI Case number Civil Appeal No. 6039 of 2008 Applicable NYC Provisions II | II(2) Source https://www.sci.gov.in (website of the Supreme Court of India)
Languages English Summary M/S Unissi (India) Pvt Ltd (“Unissi”) made an offer to a tender floated by the Post Graduate Institute of Medical Education and Research (“PGI”) which PGI accepted, placing purchase orders with which Unissi complied by sending the appropriate equipment. PGI, after receiving the equipment and installing them, demanded the execution of an agreement containing an arbitration clause. Unissi signed the agreement and sent it to PGI, but PGI did not revert with its signature to Unissi. Further, no payment was made by the PGI for the equipment received, installed and used by it. Unissi argued that the matter should be referred to arbitration, alleging the existence of a duly executed contract with an arbitration clause. The PGI contended that no arbitration agreement had been entered into by the parties. It also informed Unissi that a Technical Committee of the PGI had not approved the purchase and installation of the equipment, with the result that the equipment was rejected. Unissi applied to the Additional District Court in Chandigarh to have an arbitrator appointed. The Additional District Court held that there was no agreement executed between the parties, rejecting Unissi’s motion to appoint an arbitrator. In the Additional District Court’s view, the conditions of Section 7 of the Arbitration and Conciliation Act 1996 (the “1996 Act”) (incorporating, in modified language, Articles II(1) and (2) NYC) had not been satisfied. Unissi appealed this decision to the Supreme Court. The Supreme Court allowed Unissi’s appeal, reversing the decision of the Additional District Court in Chandigarh and ordering that an arbitrator be appointed. According to the Supreme Court, Section 7 of the 1996 Act “is in pari materia” to Article II(2) NYC. Relying on a previous decision interpreting Article II(2) NYC, the Supreme Court considered that “agreement in writing” could mean: (i) a contract containing an arbitration clause; (ii) an arbitration agreement signed by the parties; (iii) an arbitration clause in a contract contained in an exchange of letters or telegrams; or, (iv) an arbitration agreement contained in an exchange of letters or telegrams. Turning to the facts of the case, the Supreme Court held that Unissi had sent the agreement containing the arbitration clause and had duly signed it; it was PGI who had not returned the agreement with its signature. Further, the Supreme Court noted that PGI had used the machines for about a year before it returned them to Unissi. In the Supreme Court’s view, the tender offer made by Unissi, which contained an arbitration clause, and the supply order placed thereafter by PGI meant that the parties had entered into an arbitration agreement. It was also important, in the Court’s view, that the tender of Unissi was accepted and that Unissi had acted upon it. According to the Court, PGI should not now be allowed to “wriggle out” of the arbitration agreement between the parties. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1402&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 01 October 2008 / India, Supreme Court / M/S Unissi (India) Pvt Ltd v. Post Graduate Institute of Medical Education and Research / Civil Appeal No. 6039 of 2008
Country India Court India, Supreme Court Date 01 October 2008 Parties M/S Unissi (India) Pvt Ltd v. Post Graduate Institute of Medical Education and Research Case number Civil Appeal No. 6039 of 2008 Applicable NYC Provisions II | II(2) Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary M/S Unissi (India) Pvt Ltd (“Unissi”) made an offer to a tender floated by the Post Graduate Institute of Medical Education and Research (“PGI”) which PGI accepted, placing purchase orders with which Unissi complied by sending the appropriate equipment. PGI, after receiving the equipment and installing them, demanded the execution of an agreement containing an arbitration clause. Unissi signed the agreement and sent it to PGI, but PGI did not revert with its signature to Unissi. Further, no payment was made by the PGI for the equipment received, installed and used by it. Unissi argued that the matter should be referred to arbitration, alleging the existence of a duly executed contract with an arbitration clause. The PGI contended that no arbitration agreement had been entered into by the parties. It also informed Unissi that a Technical Committee of the PGI had not approved the purchase and installation of the equipment, with the result that the equipment was rejected. Unissi applied to the Additional District Court in Chandigarh to have an arbitrator appointed. The Additional District Court held that there was no agreement executed between the parties, rejecting Unissi’s motion to appoint an arbitrator. In the Additional District Court’s view, the conditions of Section 7 of the Arbitration and Conciliation Act 1996 (the “1996 Act”) (incorporating, in modified language, Articles II(1) and (2) NYC) had not been satisfied. Unissi appealed this decision to the Supreme Court. The Supreme Court allowed Unissi’s appeal, reversing the decision of the Additional District Court in Chandigarh and ordering that an arbitrator be appointed. According to the Supreme Court, Section 7 of the 1996 Act “is in pari materia” to Article II(2) NYC. Relying on a previous decision interpreting Article II(2) NYC, the Supreme Court considered that “agreement in writing” could mean: (i) a contract containing an arbitration clause; (ii) an arbitration agreement signed by the parties; (iii) an arbitration clause in a contract contained in an exchange of letters or telegrams; or, (iv) an arbitration agreement contained in an exchange of letters or telegrams. Turning to the facts of the case, the Supreme Court held that Unissi had sent the agreement containing the arbitration clause and had duly signed it; it was PGI who had not returned the agreement with its signature. Further, the Supreme Court noted that PGI had used the machines for about a year before it returned them to Unissi. In the Supreme Court’s view, the tender offer made by Unissi, which contained an arbitration clause, and the supply order placed thereafter by PGI meant that the parties had entered into an arbitration agreement. It was also important, in the Court’s view, that the tender of Unissi was accepted and that Unissi had acted upon it. According to the Court, PGI should not now be allowed to “wriggle out” of the arbitration agreement between the parties. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1393&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 25 August 2008 / India, Supreme Court / Great Offshore Ltd v. Iranian Offshore Engineering & Construction Co / Arbitration Petition No. 10 of 2006
Country India Court India, Supreme Court Date 25 August 2008 Parties Great Offshore Ltd v. Iranian Offshore Engineering & Construction Co Case number Arbitration Petition No. 10 of 2006 Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Great Offshore Ltd (“Great Offshore”, the owners) claimed that it entered into a charterparty agreement with Iranian Offshore Engineering (“Iranian Offshore”, the charterers), which provided for arbitration. It was uncontested between the parties that, after a series of negotiations, Great Offshore had faxed the charterparty agreement to Iranian Offshore, which was signed by Great Offshore. It was also accepted that, Iranian Offshore described the agreement as “ready” and represented that “it will be sent” to Great Offshore, although Iranian Offshore never returned the agreement. A dispute arose as to whether the vessel which Great Offshore had offered for charter was suitable for the needs of Iranian Offshore. Great Offshore applied to a single-judge bench of the Supreme Court in order to have an arbitrator appointed. Iranian Offshore contended that the Supreme Court did not have the power to appoint an arbitrator as the parties had not actually entered into the charterparty agreement which contained the arbitration clause. The particular contentions raised by Iranian Offshore were that (i) the agreement sent by Great Offshore to Iranian Offshore was a copy and not the original; (ii) it was stamped by only one and not both parties; (iii) Great Offshore had not signed every page; and, (iv) it was sent via fax. The Supreme Court granted Great Offshore’s application for the appointment of an arbitrator, finding that the parties had entered into the charterparty agreement and, consequently, there was an arbitration agreement in place. Dalveer Bhandari J, the judge forming the single bench of the Supreme Court deciding the issue, held that none of the requirements advanced by Iranian Offshore could be found in Section 7 of the Arbitration and Conciliation Act 1996 (the “1996 Act”) (incorporating, in modified language, Articles II(1) and (2) NYC). The learned judge held that there was no requirement that the arbitration agreement be an original or that parties stamp the agreement. The judge, applying Section 7(4)(b) of the 1996 Act, considered that the arbitration agreement, when sent by fax, constituted an agreement in writing as it was contained in “an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement”. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1392&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 04 June 2008 / India, High Court of Delhi / National Ability S.A. v. Tinna Oil & Chemicals Ltd. and others / Ex. P. No. 74 of 2000 with OMP No. 173 of 1998
Country India Court India, High Court of Delhi Date 04 June 2008 Parties National Ability S.A. v. Tinna Oil & Chemicals Ltd. and others Case number Ex. P. No. 74 of 2000 with OMP No. 173 of 1998 Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5850&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 10 January 2008 / India, Supreme Court / Venture Global Engineering v. Satyam Computer Svcs. Ltd. & Anr. / Civil Appeal No. 309 of 2008
Country India Court India, Supreme Court Date 10 January 2008 Parties Venture Global Engineering v. Satyam Computer Svcs. Ltd. & Anr. Case number Civil Appeal No. 309 of 2008 Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary In October 1999, Venture Global Engineering ("VGE") (a U.S. company) entered into a Joint Venture agreement with Satyam Computer Services (an Indian Company) and agreed to arbitrate any disputes at the London Court of International Arbitration. A subsequent dispute led to an April 2006 award in favuor of Satyam. Satyam obtained leave to enforce the award in Michigan in September 2006, and the Sixth Circuit affirmed this decision in May 2007. Prior to this, however, VGE had commenced proceedings in India seeking an injunction on payment and annulment of the award, and had received a permanent injunction in June, 2006. Satyam appealed, and the High Court granted an interim suspension of the injunction. In February 2007, the High Court also dismissed VGE's appeal from a decision denying annulment, holding that Part II of India's 1996 Arbitration and Conciliation Act ("Act") (implementing the NYC) did not permit Indian courts to set aside a foreign award. The court found that Part I of the Act, which allows Indian courts to set aside awards on grounds of public policy, did not apply to foreign awards. The Supreme Court reversed the judgment of the High Court, holding that unless the parties provide otherwise, foreign awards can be challenged in India under the Act. The Court affirmed its previous holding in the 2002 case Bhatia International, that the general arbitration provisions set forth in Part I of the Act apply to arbitration proceedings that occur abroad, unless this Part is expressly excluded by the parties. It remanded the case to the lower court to determine whether the award violated Indian law, and therefore Indian public policy provisions. It further held that the U.S. proceedings had no effect because the injunction in India was issued prior to the decision of the Michigan District Court. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=878&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFFali Nariman / Application of the New York Convention in India / 25(6) Journal of International Arbitration 893 (2008) - 2008
Author(s) Fali Nariman Source 25(6) Journal of International Arbitration 893 (2008) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India Worldcat Number Worldcat : 775295422 ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3040&opac_view=6 Sujata Manohar / Approach of Indian Courts to Enforcing Foreign Awards / 50th Anniversary of the New York Convention: Challenges for the Judiciary” Conference, Beijing (2008) - 2008
Author(s) Sujata Manohar Source 50th Anniversary of the New York Convention: Challenges for the Judiciary” Conference, Beijing (2008) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3039&opac_view=6 Sumeet Kachwaha / Enforcement of Arbitration Awards in India / 4(1) Asian Journal of International Arbitration 64 (2008) - 2008
Author(s) Sumeet Kachwaha Source 4(1) Asian Journal of International Arbitration 64 (2008) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India Worldcat Number Worldcat : 229838150 ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3038&opac_view=6 Attachment (1)
External ResourceExternal ResourceIndia / 25 January 2007 / India, High Court of Bombay / JS Ocean Liner LLC v. MV Golden Progress; Abhoul Marine LLC / Company Appeal (L) No. 47 of 2012
Country India Court India, High Court of Bombay Date 25 January 2007 Parties JS Ocean Liner LLC v. MV Golden Progress; Abhoul Marine LLC Case number Company Appeal (L) No. 47 of 2012 Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary JS Ocean Liner (“JS”) had entered in a charterparty with Abhoul marine (“Abhoul”) for the charter of MV Golden Progress, a vessel owned by Abhoul. The charterparty provided for arbitration in London. JS initiated arbitration in London, claiming that the vessel did not comply with the terms of the charterparty. JS also brought an action in rem before the High Court of Bombay asking that the vessel be arrested in order to force Abhoul to compensate JS for its losses. Alternatively, JS claimed that the vessel should be arrested as a form of security for the pending arbitration proceedings in London, pursuant to Section 9, concerning interim measures, of the Arbitration and Conciliation Act 1996 (the “1996 Act”). The Single Judge of the High Court found for the defendants; his decision was reversed by the Division Bench, which found for JS. The defendants appealed the decision of the Division Bench to the High Court. The High Court of Bombay dismissed the appeal, holding that the Court could entertain an action in rem for the arrest of a vessel in a situation where the parties have an arbitration agreement. At the same time, the High Court held that the vessel could not be arrested as an interim measure pursuant to Section 9 of the 1996 Act. In deciding that it nonetheless had jurisdiction to entertain the action in rem the High Court cited Section 45 of the 1996 Act (mirroring Article II(3) NYC). Commenting on the effect of Section 45 the High Court stressed that while, in circumstances where the arbitration agreement is not null and void or inoperative or incapable of being performed, a court would have no discretion but to refer the parties to arbitration, the Court also noted that it is for the court itself to decide whether an agreement to arbitrate is null and void, inoperative or incapable of being performed. This, the High Court considered, meant that some jurisdiction remains vested in the court itself. The High Court also noted that Chapter I of Part II of the 1996 Act (Sections 44 to 52 of the 1996 Act) “deals with New York Convention Awards” and that Section 44 defines a foreign award as an arbitral award (i) in pursuance of an agreement in writing for arbitration to which the NYC applies; and (ii) in a territory which also applies the NYC, as indicated by a declaration made by the Central Government of India by way of notification in the Official Gazette. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1384&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 08 August 2006 / India, Supreme Court of India / Harendra H Mehta and ors v. Mukesh H Mehta and ors / Appeal (Civil) 4006 of 1995
Country India Court India, Supreme Court Date 08 August 2006 Parties Harendra H Mehta and ors v. Mukesh H Mehta and ors Case number Appeal (Civil) 4006 of 1995 Applicable NYC Provisions I | II Source 1999 (3) SCR 562 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Harendra Mehta (“Harendra”) entered into an arbitration agreement with his brother, Mukesh Mehta (“Mukesh”) in order to determine how the brothers’ jointly owned businesses and properties in the USA and India would be divided between them, as well as in order to determine their social relationship. The parties had agreed that their older brother should act as arbitrator. The agreement was entered into in New York, which was also where the proceeding was held and the arbitrator reached his decision. The parties then entered into a settlement and asked the arbitrator to record it as an award. Mukesh sought to enforce the award in India. Harendra resisted enforcement on, inter alia, four grounds: (i) that the award was not an arbitral award, as required by Section 2 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (implementing Articles I and II NYC), because the arbitrator had merely rubber-stamped the settlement of the parties; (ii) that the award merely effected a family settlement and therefore was not of commercial nature, as required by Section 2 of the 1961 Act; (iii) that the award was contrary to public policy because it contravened Indian legislation concerning income tax; and, (iv) that because the award had been made into a judgment by an enforcing court in New York, Mukesh had to sue on the back of the judgment in order to enforce the award. The Bombay High Court rejected these arguments, ordering the award’s enforcement. Harendra appealed to the Supreme Court in order to reverse the High Court’s decision. The Supreme Court denied Harendra’s appeal, upholding the judgment of the Bombay High Court and ordering the enforcement of the award. The Supreme Court considered that the 1961 Act was applicable because the award was plainly a “foreign award”: according to the Supreme Court, it was made in New York and, as the USA is a party to the NYC, the requirement in Section 2(b) of the 1961 Act (implementing the reciprocity requirement in Article I(3) NYC) was fulfilled. In the Supreme Court’s view, the term “commercial” in Section 2 is to be construed liberally; hence the difference between the brothers was of commercial nature under the laws of India. In reaching this conclusion, the Supreme Court referred to both Articles I and II NYC, remarking that Article II NYC was in “somewhat similar terms” as the expression as Section 2 of the 1961 Act. Turning to Harendra’s argument that the arbitrator had merely rubber-stamped the settlement of the parties, the Supreme Court considered that this did not change the nature of the order as an award and, further, that the wish of the parties that their settlement be recorded as an award did not revoke the authority of the arbitrator. The Supreme Court held that there was no merit in Harendra’s argument concerning public policy. Finally, the Supreme Court discarded the argument that Mukesh could not enforce the award itself but had to bring a claim for the recognition and enforcement of the New York judgment. According to the Supreme Court, whether a judgment had been obtained on the basis of the award in the country where the award was made was immaterial for enforcement purposes. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1388&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 08 August 2006 / India, Supreme Court / Rashtriya Ispat Nigam Ltd and anor v. MS Verma Transport Company / Appeal (Civil) 3420 of 2006
Country India Court India, Supreme Court Date 08 August 2006 Parties Rashtriya Ispat Nigam Ltd and anor v. MS Verma Transport Company Case number Appeal (Civil) 3420 of 2006 Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Rashtriya Ispat Nigam Ltd (“Rashtriya”) entered into a contract with MS Verma Transport Company (“Verma”) which provided for arbitration. Rashtriya alleged that a partner of Verma had been involved in bribery, including in obtaining agency contracts from Rashtriya. Rashtriya sought to terminate its contract with Verma, something which Verma resisted by filing an application to obtain an injunction restraining Rashtriya from terminating the contract. Rashtriya argued that the subject-matter of the dispute fell within the scope of the parties’ arbitration agreement and, therefore, Verma could not apply for an injunction to the courts. The Single Judge of the High Court of Punjab and Haryana rejected Rashtriya’s application on the ground that Rashtriya had not provided the original arbitration agreement or a duly certified copy of it, as required by Section 8 of the Indian Arbitration and Conciliation Act 1996 (the “1996 Act”). The High Court of Punjab and Haryana rejected Rashtriya’s application of review of the Single Judge’s decision, leading Rashtriya to challenge the Single Judge’s decision before the Supreme Court. The Supreme Court upheld Rashtriya’s challenge, holding that the matter should be referred to arbitration as the existence of an arbitration agreement was admitted and the matters in the legal action filed by Verma fell within the scope of the arbitration agreement. In reaching this conclusion, the Court compared Sections 8 and 16 with Sections 45 (mirroring Article II(3) NYC) and 54 of the 1996 Act. The Court expressly refrained from dealing with the question of whether the arbitrator is entitled to determine his own jurisdiction under Part II of the 1996 Act (which incorporates the NYC), a question which the Court characterised as obiter. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1383&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 09 May 2006 / India, Supreme Court / M/S Centrotrade Minerals & Metal. Inc. v. Hindustan Copper Ltd / Appeal (Civil) 2562 of 2006
Country India Court India, Supreme Court Date 09 May 2006 Parties M/S Centrotrade Minerals & Metal. Inc. v. Hindustan Copper Ltd Case number Appeal (Civil) 2562 of 2006 Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary M/S Centrotrade Minerals & Metal. Inc. (“Centrotrade”) entered into a contract with Hindustan Copper Ltd (“HCL”) for the sale goods which provided for arbitration before the Indian Council of Arbitration (“ICA”) and, if either party was in disagreement with the award rendered by the ICA, to appeal the award in a second arbitration under the rules of the International Chamber of Commerce (“ICC”) in London. A dispute arose between the parties and was referred to the ICA for arbitration leading to an award in favour of HCL. Centrotrade then initiated arbitral proceedings in London, before the ICC, appealing the ICA’s award. HCL maintained that the part of the dispute resolution clause providing for the appeal of an award by the ICA’s to the ICC was contrary to public policy. Initially HCL refrained from submitting argument before the arbitrator appointed by the ICC but eventually did so. The ICC arbitrator rendered an award in favour of Centrotrade, which, inter alia, provided that (i) the dispute resolution clause was neither unlawful nor invalid; and, (ii) the ICA award had been wrongly decided. Centrotrade sought to enforce the award in India and applied to the Court of the District Judge in Alipore. HCL resisted the enforcement application on the basis of Section 48 of the Arbitration and Conciliation Act 1996 (the “1996 Act”). The District Judge found for Centrotrade, a decision which HCL appealed to the High Court. The High Court held that although successive arbitrations were not permissible in India, the two awards cancelled each other out. Both Centrotrade and HCL appealed the High Court’s decision to the Supreme Court. The Supreme Court allowed HCL’s appeal, granting an order to stay the enforcement of the award, as it held that the part of the dispute resolution clause concerning the appeal of the ICA’s award was void ab initio and did not have effect. The Supreme Court held that serious procedural defects in the arbitral proceedings would be contrary to public policy, as the concept is understood in Indian law, and could therefore constitute a ground for refusing an award’s enforcement. Turning to the clause at hand, the Supreme Court stressed that Indian law did not allow the parties to agree on whether an award could be appealed. Such a contractual arrangement, the Court held, would be void as contrary to public policy. The Supreme Court considered that if a court has the power, under Section 45 of the 1996 Act (which mirrors Article II(3) NYC) to determine whether an agreement to arbitrate is valid for the purpose of referring the parties to arbitration, a court should also have the power to arrive at a finding with respect to the validity of an arbitration agreement in the context of enforcement of an award. reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1391&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 12 August 2005 / India, Supreme Court / Shin-Etsu Chemical Co. Ltd (Japan) v. Aksh Optifibre Ltd. & Anr. (Ind) / Appeal (civil) 5048 of 2005
Country India Court India, Supreme Court Date 12 August 2005 Parties Shin-Etsu Chemical Co. Ltd (Japan) v. Aksh Optifibre Ltd. & Anr. (Ind) Case number Appeal (civil) 5048 of 2005 Applicable NYC Provisions II | II(3) Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Shin-Etsu (a Japanese chemical company) entered into an agreement with Aksh Optifibre (an Indian company) and agreed to arbitrate any disputes in Japan under ICC rules. Shin-Etsu terminated the agreement and Aksh filed suit in India, seeking an injunction and/or declaration that the contract was void, inoperable and incapable of performance or effect because it was, among other things, unconscionable and entered into through undue influence. Invoking Section 8, the domestic provision of India's 1996 Arbitration and Conciliation Act ("Act"), Shin-Etsu obtained an order to submit the matter to arbitration before the ICC in Tokyo. On appeal, the High Court ruled that the trial court wrongly applied Section 8 rather than Section 45 (its foreign awards counterpart, which directly incorporates Article II(3) NYC) and remanded the case to the trial court. Shin-Etsu then appealed to the Supreme Court. The issue before the Court was whether, under Section 45 of the Act, a trial judge is required to submit a matter to arbitration upon a prima facie showing that an arbitral agreement is not null and void, inoperative, or incapable of being performed. The Supreme Court, by a 2-1 majority, held that under Section 45 of the Act and Article II(3) NYC, a judge must refer a matter to arbitration upon a prima facie showing that the agreement is not null and void, inoperative, or incapable of being performed. Although nothing in the language of Section 45 itself indicated whether a finding as to the nature of the arbitral agreement has to be ex facie or prima facie, the Court found that requiring only a prima facie showing better served the purpose of the Act (and the NYC), which was to enable expeditious arbitration without avoidable intervention by judicial authorities. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=439&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 07 February 2005 / India, High Court of Gujarat / Swiss Singapore Overseas Enterprises Pvt Ltd v. M/V African Trader / Civil Application No. 23 of 2005
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)
Original LanguageAdobe Acrobat PDFIndia / 19 December 2002 / India, High Court of Gujarat / Nirma Ltd v. Lurgi Energie und Entsorgung GmbH and ors / First Appeal No. 1787 of 2002; Civil Applications No. 6301, 6556 and 8562 of 2002
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)
Original LanguageAdobe Acrobat PDFIndia / 09 September 2002 / India, High Court of Andhra Pradesh / International Investor KCSC v. Sanghi Polyesters Ltd / Civil Revision Petition Nos 331 and 1441 of 2002
Country India Court India, High Court of Andhra Pradesh Date 09 September 2002 Parties International Investor KCSC v. Sanghi Polyesters Ltd Case number Civil Revision Petition Nos 331 and 1441 of 2002 Applicable NYC Provisions II | V | V(1) | V(1)(a) Source 2003 (1) ALT 364; 2003 43 SCL 271 AP | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary International Investor KCSC (“KCSC”) entered into a contract with Sanghi Polyesters Ltd (“SPL”) for the purchase of goods from SPL, which provided for arbitration in London under the auspices of the International Chamber of Commerce (“ICC”). The contract was to be governed by English law, but only to the extent that English law did not conflict with Shari’a law. A dispute arose between the parties and KCSC initiated arbitration in London, obtaining a favourable award. SPL sought, unsuccessfully, to annul the award before the High Court in London. KCSC sought to enforce the award in India and seized the Principal District Judge of the Ranga Reddy District to that effect. The District Judge granted enforcement of the award but found that KCSC would have to file a separate petition for the execution of the award. It denied KCSC’s request to direct SPL to disclose its properties. SPL appealed to the High Court of Andhra Pradesh against the decision. First, it argued that that the award should not be enforced under Section 48(1)(a) Arbitration and Conciliation Act 1996 (the “1996 Act”) (mirroring Article V(1)(a) NYC) because, according to SPL, KCSC was claiming for interest on the basis of an agreement governed by Shari’a law. Second, SPL argued that it had not been afforded an opportunity to present its case. KCSC also appealed against the decision to the High Court of Andhra Pradesh, arguing that a separate step was not needed for the execution of the award, and also that SPL should be ordered to disclose its properties. The High Court of Andhra Pradesh allowed KCSC’s appeal and dismissed SPL’s appeal, ordering the enforcement of the award and finding that KCSC need not take a separate step to execute the award. The High Court rejected both grounds for non-enforcement advanced by SPL. It rejected SPL’s argument that “agreement” in Section 48(1)(a) of the 1996 Act refers to the purchase agreement, holding that the reference to “agreement” in Section 48(1)(a) is to the arbitration agreement entered into by the parties. Further, the High Court considered that SPL had already raised the argument that it had not been afforded an opportunity to present its case before the High Court in London, which had been rejected. Consequently, the High Court of Andhra Pradesh noted that the doctrine of res judicata prevented SPL from relying on the same ground. In reaching these conclusions, the Court remarked that Sections 44 and 48 of the 1996 Act are “substantially a reproduction” of Articles II and V NYC. The Court stated that the arbitral award in question was “a foreign award, governed by the New York Convention”, an expression defined in Section 44 of the 1996 Act, and also placed burden of proof on the party challenging enforcement, as provided by Section 48 of the 1996 Act. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1371&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 13 March 2002 / India, Supreme Court / Bhatia International (Ind) v. Bulk Trading S.A. & Anr / Civil Appeal 6527 of 2001
Country India Court India, Supreme Court Date 13 March 2002 Parties Bhatia International (Ind) v. Bulk Trading S.A. & Anr Case number Civil Appeal 6527 of 2001 Source AIR [2002] SC 1432 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Bhatia International entered into an agreement with Bulk Trading and agreed to arbitrate any disputes in Paris, under ICC rules. Following a dispute, Bulk Trading filed a petition for interim relief, including an injunction, under Section 9 of India's 1996 Arbitration and Conciliation Act ("Act"). Bhatia objected, arguing that Section 9 did not apply to arbitrations occurring outside of India and that only Part II of the Act (which applies to foreign awards and implements the NYC) applied. Because no section of Part II contains a provision for interim relief, Bhatia maintained that none could be granted by the court here. The Supreme Court held that Part I of the Act applied to foreign awards unless the parties affirmatively excluded this Part in their arbitration agreement. It reasoned that this must be the case because if Part I did not apply to foreign awards then there would be no Indian law governing awards rendered in non-NYC countries. Because the plain language of the Act did not conclusively establish otherwise, the Court found that Part I of the Act presumptively applies to both domestic and foreign awards, and the burden is on the parties to modify this by express or implied agreement. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=415&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFP. Ramaswamy / Enforcement of annulled Awards — An Indian Perspective / 19(5) Journal of International Arbitration 461 (2002) - 2002
Author(s) P. Ramaswamy Source 19(5) Journal of International Arbitration 461 (2002) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India Worldcat Number Worldcat : 773319701 ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3037&opac_view=6 India / 31 August 2001 / India, Supreme Court / Smita Conductors Ltd. v. Euro Alloys Ltd. / Civil Appeal No. 12930 of 1996
Country India Court India, Supreme Court Date 31 August 2001 Parties Smita Conductors Ltd. v. Euro Alloys Ltd. Case number Civil Appeal No. 12930 of 1996 Applicable NYC Provisions II | II(1) | II(2) Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary In August 1990, Euro Alloys proposed a contract for the sale of aluminum rods to Smita Conductors. Despite several requests and reminders, Smita neither signed nor returned the contract, which contained an arbitration clause. Smita did, however, open several irrevocable letters of credit, and shipments were made in performance of the contract. A subsequent dispute led to a July 1992 arbitral award in favour of Euro Alloys. Euro Alloys then obtained an order from the Bombay High Court for enforcement of the award, with interest, under the 1961 Foreign Awards (Recognition & Enforcement Act) ("1961 Act"), which implemented the NYC. Smita appealed, arguing that (1) enforcement violated Section 2(a) of the 1961 act and Article II(1)-(2) of the NYC because the agreement containing the arbitration clause was not signed by both parties, and none of the parties' other written exchanges contained an agreement to arbitrate, and (2) it would be contrary to the public policy of India to enforce the award, in violation of Section 7(1)(b)(ii) of the 1961 Act (which directly incorporates Article V(2)(b) NYC). The Supreme Court dismissed the appeal and affirmed the decision of the High Court. It held that Smita’s conduct, particularly the acts of opening the letters of credit in reliance on the contract and invoking the contract’s force majeure clause, demonstrated its acknowledgement and acceptance of the terms of the written contract. Therefore, it would be illogical to let Smita escape its obligations under the contract simply because it failed to sign. The Court also found that because the arbitrator’s conclusions were plausible, enforcing the award would not be contrary to the public policy of India. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=702&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 20 August 2001 / India, Supreme Court / Owners & Parties Interested in the Vessel M.V. Baltic Confidence, et al. v. State Trading Corp. of India, et al. (India) / Special Leave Petition (civil) 17183 of 2001
Country India Court India, Supreme Court Date 20 August 2001 Parties Owners & Parties Interested in the Vessel M.V. Baltic Confidence, et al. v. State Trading Corp. of India, et al. (India) Case number Special Leave Petition (civil) 17183 of 2001 Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary The M.V. Baltic Confidence was chartered on the basis of a Charter containing an arbitration clause that provided for arbitration in London. Five Bills of Lading, held and endorsed by the State Trading Corporation of India (“STCI”), were issued and each incorporated the Charter’s arbitration clause. Following a dispute, STCI filed suit in the High Court at Calcutta, and the Owners and Parties interested in the Vessel M.V. Baltic Confidence (“Baltic’s owners”) requested a stay of the proceedings and referral to arbitration pursuant to Section 45 of the 1996 Arbitration and Conciliation Act ("Act") (which incorporates Article II(3) NYC). The judge denied the Baltic’s owners’ request, holding that the arbitration clause from the Charter did not apply to disputes arising from the Bills of Lading. The Baltic’s owners appealed, arguing that the Bills of Lading fully incorporated the clause and therefore the parties were bound to arbitrate the dispute. The Supreme Court held that the arbitration clause applied to suits arising under the Bills of Lading, so the High Court should have granted the request of the Baltic’s owners to stay the suit and submit the dispute to arbitration. It found that, despite minor linguistic discrepancies in the text of the Bills of Lading, the parties clearly intended the arbitration clause to be incorporated. Because incorporation would not yield absurd or unworkable results, the Court deemed itself bound by the intention of the parties. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=703&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 04 May 2001 / India, Supreme Court / Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. / Civil Appeal No. 3594 of 2001
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Original LanguageAdobe Acrobat PDFIndia / 05 July 2000 / India, High Court of Delhi / Marriott International Inc et al v. Ansal Hotels Ltd et al / F.A.O. (OS) No. 335 of 1999
Country India Court India, High Court of Delhi Date 05 July 2000 Parties Marriott International Inc et al v. Ansal Hotels Ltd et al Case number F.A.O. (OS) No. 335 of 1999 Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Marriott International Inc. (“Marriott”) entered into a contract with Ansal Hotels Ltd (“Ansal”) for the management of a hotel as part of the Marriott chain of hotels, which provided for arbitration in Kuala Lumpur, Malaysia. Ansal terminated the contract, leading Marriott to initiate arbitral proceedings against Ansal in Kuala Lumpur, while also seeking an interim directions from the Single Judge in Delhi, India, pursuant to Section 9 of the Arbitration and Conciliation Act 1996 (the “1996 Act”). Ansal resisted the interim directions sought by Marriott on the ground that Section 9 of the 1996 Act, and all of Part I of the Act does not apply to arbitrations with their seat outside India. The Single Judge decided the issue in favour of Ansal, a decision which Marriott appealed to the High Court of Delhi. The High Court of Delhi dismissed the appeal, holding that Part I of the Act does not apply when the seat of the arbitration is outside India. In reaching this conclusion, the High Court also remarked that Part II of the Act concerns the enforcement of foreign awards made under the NYC or the Geneva Convention. The Court observed that “foreign award” means an arbitral award on a difference considered commercial under Indian law, made in pursuance of an agreement in writing to which the Geneva Convention or the NYC applies and rendered in the territory of a state other than the state where recognition and enforcement is sought. In concluding that the award was a “foreign award”, the Court also considered as indicative the fact that one of the parties to the arbitration agreement was not a national of India. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1370&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country India Court India, High Court of Bombay Date 19 November 1999 Parties Faircot SA v. Tata SSI Ltd Source 2000 (2) BomCR 429; (2000) 1 BOMLR 525; 2000 (2) MhLj 223 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Faircot SA (“Faircot”) entered into a contract with Tata SSI Ltd (“Tata”), which provided for arbitration of disputes under the auspices of the Liverpool Cotton Association (“LCA”). A dispute arose between the parties and Faircot initiated an arbitral proceeding. Tata did not participate in the proceeding save by sending a letter to the arbitral tribunal to inform it that it had not signed the contract and, consequently, that there was no agreement between the parties. The tribunal rendered an award in favour of Faircot, which the latter sought to enforce in India, before the High Court of Bombay. Tata resisted the award’s enforcement on the basis that the arbitrators had no jurisdiction to render the award as Tata had challenged the validity or existence of the contract. The High Court of Bombay agreed with Tata’s argument, rejecting Faircot’s application to enforce the award. The High Court considered that the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) applied to the award. The Court relied on Section 7 of the 1961 Act (mirroring Article V NYC), pointing out the language “deals with the conditions for enforcement of a foreign award”. Specifically, the Court noted that one of the grounds on which the Court can decline to enforce a foreign award is that the award deals with questions not referred or contained decisions on matters beyond the scope of the agreement. Relying on the decision of the Supreme Court of India in Renusagar Power Co Ltd v General Electric Company and anor, the High Court distinguished between instances where the scope of the arbitration agreement is in dispute and instances where the validity of the contract containing the agreement is in dispute. With respect to the former case (i.e. whether a dispute fell within the scope of the agreement to arbitrate), the High Court held that an arbitral tribunal has jurisdiction to make a tentative determination, which is subject to a challenge before a court pursuant to Section 7 of the 1961 Act. In contrast, the Court held, an arbitral tribunal does not have jurisdiction over the issue of the existence or validity of the contract which contains the arbitration agreement. The High Court found that in the present case the arbitral tribunal had lacked jurisdiction to make the award as the validity or existence of the contract containing the agreement to arbitrate had been challenged. Finally, the Court rejected Faircot’s argument that English law (the law of the seat of the arbitration) would be applicable in deciding whether a matter was beyond the arbitral tribunal’s jurisdiction, holding that the question would be resolved by applying Indian law. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1369&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 07 October 1999 / India, Supreme Court / Thyssen Stahlunion GMBH Etc. v. Steel Authority of India Ltd. / Civil Appeal No. 6036/98
Country India Court India, Supreme Court Date 07 October 1999 Parties Thyssen Stahlunion GMBH Etc. v. Steel Authority of India Ltd. Case number Civil Appeal No. 6036/98 Source 1999 AIR 3923; 1999(3) Suppl. SCR 461; 1999 (9) SCC 334; 1999(6) SCALE 441, 1999(8) JT 66 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary In 1999, the Supreme Court of India heard three cases together, each of which related to whether the 1996 Arbitration and Conciliation Act ("Act") or the previous acts—the 1940 Arbitration Act for domestic awards and the 1961 Foreign Awards (Recognition & Enforcement) Act ("1961 Act"), which implemented the NYC—applied to the disputes between the parties. One of these cases, Western Shipbreaking Corp. v. Clareheaven Ltd., involved the enforcement of a foreign arbitral award. Clareheaven entered into an agreement with Western Shipbreaking and agreed to arbitrate any disputes in London under U.K. law. A subsequent dispute led to a February 1996 award. The High Court held that the new Act applied to the award, and Western Shipbreaking appealed to the Supreme Court. The Supreme Court held that the new Act applied to the award. Although the proceedings occurred before the Act entered into force, the award itself was rendered after the commencement of the Act and the act is related to the enforcement of foreign awards not the arbitration proceedings themselves. The Court also noted that even if the 1961 Act applied, there was no material difference between the two acts regarding the substantive right to enforce the awards. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=814&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 23 July 1999 / India, High Court of Delhi / Brawn Laboratories Ltd v. Fittydent International GmbH and ors
Country India Court India, High Court of Delhi Date 23 July 1999 Parties Brawn Laboratories Ltd v. Fittydent International GmbH and ors Source 2000 IVAD Delhi 18; 85 (2000) DLT 204; 2000 (53) DRJ 144 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Fittydent International GmbH (“Fittydent”) entered into a contract with Brawn Laboratories Ltd (“Brawn”) licencing Brawn to manufacture and sell Fittydent’s products in India, which provided for arbitration under the rules of the International Chamber of Commerce (“ICC”). A dispute arose between the parties and Fittydent initiated an arbitration proceeding which culminated in an award in its favour. Fittydent sought to enforce the award in India, a motion which Brawn resisted by arguing that, pursuant to Section 48 of the Arbitration and Conciliation Act 1996 (the “1996 Act”) (mirroring Article V NYC), the enforcement of the award would be contrary to public policy. According to Brawn, enforcement would be contrary to public policy for three reasons: (i) because the contract between the parties on which the award was based was expressed to be subject to the approval(s) by the Government of India and/or the Reserve Bank of India and, such approval(s) not having been obtained, the contract was void and did not give rise to any legal obligations; (ii) because the award ordered damages to be paid to Fittydent reflecting the entire consideration under the contract in circumstances where Fittydent had not performed some of its obligations under the contract; and, finally, (iii) because the damages which had been awarded included a licence fee which had not been triggered on the terms of the contract. Finally, Brawn argued that the 8.5% rate of interest imposed by the arbitrator had been usurious and excessive. The High Court of Delhi refused to stay the enforcement of the award, finding that none of the arguments advanced by Brawn showed that enforcement would be contrary to public policy, but nonetheless adjusted the rate of interest to 2%. The High Court found that it was Brawn’s obligation to obtain the said approval(s) and, on that view, a party in breach could not benefit from its own wrong. The learned judge stressed that the arbitrator had made a finding of fact that Brawn had breached its contractual obligations by failing to secure the necessary approval(s). The Court considered the arbitrator’s view to be plausible, and, moreover, held that an enforcing court was precluded by Section 48 of the 1996 Act from interfering with the arbitrator’s views. Turning to the concept of public policy, the judge remarked that it is to be narrowly construed as representing the fundamental policy of the law of India. An expansive construction of the concept of public policy, the judge opined, would vitiate the NYC’s “basic intent of removing obstacles to enforcement”. The High Court also rejected the second and third of Brawn’s arguments, again finding that the arbitrator had considered the matters raised by Brawn and, according to the arbitrator’s construction of the contract, he had found against Brawn. In the Court’s view these were questions of fact, beyond the scope of the enforcing court when dealing with proceedings filed under Sections 48 and 49 of the 1996 Act. The learned judge did deem it appropriate to adjust the rate of interest to 2% and declared the award to be enforceable with the reduced rate of interest. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1382&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 13 May 1999 / India, Supreme Court / Harendra H. Mehta, et al. v. Mukesh H. Mehta, et. al / Civil Appeal No. 4006 of 1995
Country India Court India, Supreme Court Date 13 May 1999 Parties Harendra H. Mehta, et al. v. Mukesh H. Mehta, et. al Case number Civil Appeal No. 4006 of 1995 Applicable NYC Provisions I | II Source 1999(3) SCR 562 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Harendra Mehta (“Harendra”) entered into an arbitration agreement with his brother, Mukesh Mehta (“Mukesh”) in order to determine how the brothers’ jointly owned businesses and properties in the USA and India would be divided between them, as well as in order to determine their social relationship. The parties had agreed that their older brother should act as arbitrator. The agreement was entered into in New York, which was also where the proceeding was held and the arbitrator reached his decision. The parties then entered into a settlement and asked the arbitrator to record it as an award. Mukesh sought to enforce the award in India. Harendra resisted enforcement on, inter alia, four grounds: (i) that the award was not an arbitral award, as required by Section 2 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (implementing Articles I and II NYC), because the arbitrator had merely rubber-stamped the settlement of the parties; (ii) that the award merely effected a family settlement and therefore was not of commercial nature, as required by Section 2 of the 1961 Act; (iii) that the award was contrary to public policy because it contravened Indian legislation concerning income tax; and, (iv) that because the award had been made into a judgment by an enforcing court in New York, Mukesh had to sue on the back of the judgment in order to enforce the award. The Bombay High Court rejected these arguments, ordering the award’s enforcement. Harendra appealed to the Supreme Court in order to reverse the High Court’s decision. The Supreme Court denied Harendra’s appeal, upholding the judgment of the Bombay High Court and ordering the enforcement of the award. The Supreme Court considered that the 1961 Act was applicable because the award was plainly a “foreign award”: according to the Supreme Court, it was made in New York and, as the USA is a party to the NYC, the requirement in Section 2(b) of the 1961 Act (implementing the reciprocity requirement in Article I(3) NYC) was fulfilled. In the Supreme Court’s view, the term “commercial” in Section 2 is to be construed liberally; hence the difference between the brothers was of commercial nature under the laws of India. In reaching this conclusion, the Supreme Court referred to both Articles I and II NYC, remarking that Article II NYC was in “somewhat similar terms” as the expression as Section 2 of the 1961 Act. Turning to Harendra’s argument that the arbitrator had merely rubber-stamped the settlement of the parties, the Supreme Court considered that this did not change the nature of the order as an award and, further, that the wish of the parties that their settlement be recorded as an award did not revoke the authority of the arbitrator. The Supreme Court held that there was no merit in Harendra’s argument concerning public policy. Finally, the Supreme Court discarded the argument that Mukesh could not enforce the award itself but had to bring a claim for the recognition and enforcement of the New York judgment. According to the Supreme Court, whether a judgment had been obtained on the basis of the award in the country where the award was made was immaterial for enforcement purposes. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=763&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 13 May 1999 / India, Supreme Court / Harendra H Mehta v. Mukesh H Mehta / Appeal (Civil) 4006 of 1995
Country India Court India, Supreme Court Date 13 May 1999 Parties Harendra H Mehta v. Mukesh H Mehta Case number Appeal (Civil) 4006 of 1995 Applicable NYC Provisions I | II Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Harendra Mehta (“Harendra”) entered into an arbitration agreement with his brother, Mukesh Mehta (“Mukesh”) in order to determine how the brothers’ jointly owned businesses and properties in the USA and India would be divided between them, as well as in order to determine their social relationship. The parties had agreed that their older brother should act as arbitrator. The agreement was entered into in New York, which was also where the proceeding was held and the arbitrator reached his decision. The parties then entered into a settlement and asked the arbitrator to record it as an award. Mukesh sought to enforce the award in India. Harendra resisted enforcement on, inter alia, four grounds: (i) that the award was not an arbitral award, as required by Section 2 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (implementing Articles I and II NYC), because the arbitrator had merely rubber-stamped the settlement of the parties; (ii) that the award merely effected a family settlement and therefore was not of commercial nature, as required by Section 2 of the 1961 Act; (iii) that the award was contrary to public policy because it contravened Indian legislation concerning income tax; and, (iv) that because the award had been made into a judgment by an enforcing court in New York, Mukesh had to sue on the back of the judgment in order to enforce the award. The Bombay High Court rejected these arguments, ordering the award’s enforcement. Harendra appealed to the Supreme Court in order to reverse the High Court’s decision. The Supreme Court denied Harendra’s appeal, upholding the judgment of the Bombay High Court and ordering the enforcement of the award. The Supreme Court considered that the 1961 Act was applicable because the award was plainly a “foreign award”: according to the Supreme Court, it was made in New York and, as the USA is a party to the NYC, the requirement in Section 2(b) of the 1961 Act (implementing the reciprocity requirement in Article I(3) NYC) was fulfilled. In the Supreme Court’s view, the term “commercial” in Section 2 is to be construed liberally; hence the difference between the brothers was of commercial nature under the laws of India. In reaching this conclusion, the Supreme Court referred to both Articles I and II NYC, remarking that Article II NYC was in “somewhat similar terms” as the expression as Section 2 of the 1961 Act. Turning to Harendra’s argument that the arbitrator had merely rubber-stamped the settlement of the parties, the Supreme Court considered that this did not change the nature of the order as an award and, further, that the wish of the parties that their settlement be recorded as an award did not revoke the authority of the arbitrator. The Supreme Court held that there was no merit in Harendra’s argument concerning public policy. Finally, the Supreme Court discarded the argument that Mukesh could not enforce the award itself but had to bring a claim for the recognition and enforcement of the New York judgment. According to the Supreme Court, whether a judgment had been obtained on the basis of the award in the country where the award was made was immaterial for enforcement purposes. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1401&opac_view=6 Attachment (1)
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Original LanguageAdobe Acrobat PDFIndia / 14 January 1998 / India, Supreme Court / Transocean Shipping Agency P Ltd v. Black Sea Shipping & another
Country India Court India, Supreme Court Date 14 January 1998 Parties Transocean Shipping Agency P Ltd v. Black Sea Shipping & another Applicable NYC Provisions V | V(1) | V(1)(d) Source http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Transocean Shipping Agency (“Transocean”) entered into a contract with the Black Sea Shipping (“Black Sea”; a company incorporated in Ukraine) under which Transocean would operate as Black Sea’s Shipping agent. The contract provided for arbitration “where [Black Sea] are registered”. A dispute arose and Black Sea referred the matter to arbitration in Odessa, Ukraine. The second respondent, who was an official of Black Sea and appointed as arbitrator by an order of the government of Ukraine, made an award in favour of Black Sea. Black Sea sought to enforce the award in India, a motion which Transocean resisted on three grounds: (i) that the award made in Ukraine was not a foreign award as defined in Section 2 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (implementing Articles I and II NYC), because Ukraine had not been notified to be a party to the NYC after the dissolution of the Union of Soviet Socialist Republics (“USSR”); (ii) that the arbitration had not been conducted in accordance with the law of Ukraine as envisaged by Section 7(1)(a)(iv) of the 1961 Act (mirroring Article V(1)(d) NYC); and, finally, (iii) that enforcement of the award would be contrary to public policy, as envisaged by Section 7(1)(b)(ii) of the 1961 Act (mirroring Article V(2)(b) NYC), because the arbitrator was an official of Black Sea. The High Court rejected the arguments advanced by Transocean and ordered the enforcement of the award. Transocean appealed the High Court’s decision to the Supreme Court. The Supreme Court dismissed the appeal, ordering the enforcement of the award and rejecting Transcocean’s arguments. The Supreme Court held that the award was a “foreign award” for purposes of Section 2 of the 1961 Act, holding further that the 1961 Act was enacted in order to give effect to the NYC. In the view of the Supreme Court, it was not necessary that the Indian authorities send a notification to the effect that the states emerging from the dissolution of the USSR continued to be parties to the NYC, therefore satisfying the requirement of reciprocity. With respect to Transocean’s argument that the arbitration was invalid according to the law of Ukraine, the Supreme Court noted that Transocean had not presented any evidence as to why this was the case. According to the Supreme Court, Transocean bore the burden of proving why the award should not be enforced; a burden which it had been unable to satisfy. In making this point, the Supreme Court remarked that Section 7 of the 1961 Act “is in conformity with” Article V NYC. Finally, the Supreme Court rejected the contention that the enforcement would be contrary to public policy due to the arbitrator being an official of Black Sea, stressing that the award rendered was valid under the law of Ukraine and, consequently, there was no violation of public policy in enforcing the award in India. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1400&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFTony Khindria / Enforcement of Arbitration Awards in India / 23 International Business Lawyer 11 (1995) - 1995
Author(s) Tony Khindria Source 23 International Business Lawyer 11 (1995) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India Worldcat Number Worldcat : 197430637 ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3036&opac_view=6 India / 10 February 1994 / India, Supreme Court / R.M. Investments Trading Co. Pvt. Ltd. v. Boeing Co.
Country India Court India, Supreme Court Date 10 February 1994 Parties R.M. Investments Trading Co. Pvt. Ltd. v. Boeing Co. Source 1994 AIR 1136 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary In 1986, RMI (an Indian company) entered into an agreement with Boeing (a U.S. company) to provide consultancy services for promoting the sale of Boeing aircrafts in India, and agreed to arbitrate any disputes under AAA rules. A dispute arose, and RMI brought suit in the Calcutta High Court. Boeing moved for stay of the suit on the ground that its subject matter was covered by the arbitration clause in the contract. The High Court dismissed Boeing’s application to stay the suit in April 1993, holding that the agreement in question was not a “commercial” agreement under India’s 1961 Foreign Awards (Recognition and Enforcement) Act ("1961 Act"), which implemented the NYC, and that therefore the 1961 Act did not apply. The Division Bench of the High Court, however, dismissed this decision in October 1993. RMI appealed to the Supreme Court of India, arguing that the consultancy agreement was not a commercial agreement under Section 2 the 1961 Act. The Supreme Court held that the agreement fell within the definition of “commercial” under Section 2 of the 1961 Act (which incorporated Articles I(1) and II(1) NYC but expressly required a "commercial" relationship), and therefore that the stay could be granted under the Act. The Court emphasized that the purpose of the 1961 Act was to facilitate international trade by providing for dispute settlement through arbitration. It accordingly read the term “commercial” broadly, finding that it encompassed the promotion of commercial activity, in order to further the goals of the 1961 Act. RMI played an active role in promoting the sale of Boeing’s aircraft and provided managerial assistance in the process; therefore, the transaction was commercial in nature. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=777&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 24 January 1994 / India, Supreme Court / Svenska Handelsbanken et al. v. Indian Charge Chrome et al.
Country India Court India, Supreme Court Date 24 January 1994 Parties Svenska Handelsbanken et al. v. Indian Charge Chrome et al. Source 1994 SCR (1) 261; 1994 SCC (2) 155; JT 1994 (1) 240; 1994 SCALE (1)156 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Indian Chrome entered into several agreements for the construction of a power plant, including agreements with suppliers and credit agreements with Svenska Handelsbanken (a Swedish consortium of banks) and others. In its agreements with the suppliers it agreed to arbitrate any disputes in Paris under Indian law and ICC rules and in its agreements with the lenders it agreed to arbitrate in Sweden under Swedish law and ICC rules. Following a dispute, Indian Chrome brought suit in Cuttack against all of the suppliers and lenders (thirteen in total) and obtained interim injunctions. Svenska filed an application for stay of the court proceedings and referral of the dispute to arbitration in Stockholm, invoking Section 3 of India’s 1961 Foreign Awards (Recognition & Enforcement) Act ("1961 Act")(which directly incorporated Article II(3) NYC). Svenska had appointed local counsel, and had repeatedly requested that local counsel refrain from doing anything that would amount to a written statement or a further step in the litigation, which would cause them to lose their power to obtain a stay. Despite this, the local counsel filed applications in the interim injunctions proceedings, assuring them that this would not amount to a further step in the litigation, and the High Court ruled that a stay could not be granted. The Supreme Court reversed and granted stay of proceedings under the 1961 Act, holding that local counsel had acted against his clients' express instructions and that therefore the applications filed in the interim injunctions proceedings did not preclude the issuance of a stay. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=810&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 15 October 1993 / India, High Court of Delhi / Gas Authority of India Ltd v. SPIE-CAPAG SA and ors / Suit No. 1440; IA No. 5206
Country India Court India, High Court of Delhi Date 15 October 1993 Parties Gas Authority of India Ltd v. SPIE-CAPAG SA and ors Case number Suit No. 1440; IA No. 5206 Applicable NYC Provisions I | II | II(3) | V | V(1) | V(1)(a) Source AIR 1994 Delhi 75; 1993 (27) DRJ 562; ILR 1994 Delhi 131 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Gas Authority of India Ltd (“GAIL”) entered into a contract with the respondents for the construction of a gas pipeline, which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”) in New Delhi, India. A dispute arose and the respondents initiated arbitral proceedings, seeking a declaration that GAIL was not entitled to liquidated damages as provided by the contract. GAIL launched a legal action before the High Court of Delhi, arguing that the commencement of the arbitration was invalid and violated the contract between the parties, and that the matter was not referable to arbitration. The respondents argued that Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article II(3) NYC) was applicable in the present case, requiring the Indian courts to stay the suit filed by GAIL. The High Court of Delhi found for the respondents, ordering a stay of the suit filed before it in favour of the arbitral proceeding. According to the Court, Section 3 of the 1961 Act was applicable to the present dispute even though the arbitration agreement was one for arbitration in India. In the Court’s view, nothing in the wording of Section 3 – which the Court expressly considered to reflect Article II(3) NYC – mandated that a stay should only be granted if the arbitration agreement was for arbitration outside India. The Court stressed that the limited situations where a court could refuse to refer a matter to arbitration, such as the invalidity of the arbitration agreement, were exhaustively enumerated in Section 3 of the 1961 Act. The High Court considered that Section 3 would apply to any arbitration agreement “with a foreign element or flavour involving international trade and commerce even though such an agreement does not lead to a foreign award”. In this case, the Court pointed out, the respondents who were parties to the arbitration agreement had their places of business outside India, a fact which meant that the 1961 Act and the NYC “undoubtedly […] apply to the arbitration agreement”. In arriving at this conclusion, the High Court remarked that “the object of the [1961 Act] was to give legislative recognition to the New York Convention” and stressed that it had no discretion, once it decided that Section 3 of the 1961 Act was applicable, but to refer the dispute to arbitration. The Court also noted that Section 7 of the 1961 Act mirrors Article V NYC and, in particular, that Sections 7(1)(a)(i) and 7(i)(b) of the 1961 Act mirror Articles V(1)(a) and V(2)(b) NYC. According to the Court, Sections 3 and 7 demonstrate that questions of existence, validity and scope of an arbitration agreement fall to be decided by the court and, with respect to Section 7, even after the award is made and filed but before it is made enforceable. see also :
- 1. INTRODUCTION (II) / §6
- 1. INTRODUCTION (I) / §2
- I / 2. ANALYSIS (I) / ARTICLE I(3) / a.The territorial criterion and the reciprocity reservation / §72
- I / 2. ANALYSIS (I) / ARTICLE I(3) / a.The territorial criterion and the reciprocity reservation / §73
- I / 2. ANALYSIS (I) / ARTICLE I(3) / b. Meaning of “whether contractual or not” / §90
- II / 2. ANALYSIS (II) / ARTICLE II(3) / b. Courts' review of the existence and validity of an 'agreement in writing' / §101
- II / 2. ANALYSIS (II) / B. Meaning of 'agreement' / §21
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1367&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 12 October 1993 / India, Supreme Court / Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd and ors / Civil Appeals Nos 5438-39 of 1993
Country India Court India, Supreme Court Date 12 October 1993 Parties Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd and ors Case number Civil Appeals Nos 5438-39 of 1993 Applicable NYC Provisions I | II | III | IV | V Source http://www.spotlaw.in (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. 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 to the fourth respondent to break it up: the vessel was situated in India. Brace applied to the Bhavnagar Court, in Gujarat, India, to enforce the award against the vessel, beached in India. The Bhavnagar Court found for Brace but its decision was overturned on appeal to the High Court of Gujarat. Brace appealed the decision of the High Court of Gujarat before the Supreme Court of India. The Supreme Court allowed the appeal, holding that the award could be enforced against the proceeds of sale which had not yet been paid by the third respondent to Orri and Orient. However, the Supreme Court made clear that the Bhavnagar Court had no jurisdiction to enforce a maritime lien, even if such a lien existed, as the vessel was no longer an asset of either Orri or Orient. In reaching this conclusion, the Supreme Court referred to the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”), stating that the 1961 Act was “placed on the statute book to enable effect to be given to the [NYC]”. Commenting on Section 2 (incorporating, in modified language, Articles I and II NYC), the Court held that a condition for an award to fall within the auspices of the 1961 Act as a “foreign award” is that the award is made in a territory which Central Government of India has notified in the Official Gazette to be a territory applying the NYC. The Court also reviewed the other provisions of the NYC, noting that Section 3 refers to Article II NYC which provides for the stay of a legal action in favour of arbitration. After reviewing the content of Articles I(1), II, III, IV and V NYC, the Court noted that the NYC speaks of “recognition and enforcement” of an award. According to the Court, an award may be recognised but not enforced, enforcement involving the use of “legal sanctions to ensure that [the award] is carried out”. reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1381&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 12 October 1993 / India, Supreme Court / Brace Transport Corporation Of Monrovia (Liberia) v Orient Middle - East Lines Ld. (Saudi Arabia) / AIR 1994 SC 1715
Country India Court India, Supreme Court Date 12 October 1993 Parties Brace Transport Corporation Of Monrovia (Liberia) v Orient Middle - East Lines Ld. (Saudi Arabia) Case number AIR 1994 SC 1715 Applicable NYC Provisions I | II | III | IV | V Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=440&opac_view=6 Attachment (1)
Q13_-_Brace_Transport_of_Monrovia_v_Oriental_Middle_-_east_lines.pdfAdobe Acrobat PDFIndia / 07 October 1993 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor.
Country India Court India, Supreme Court Date 07 October 1993 Parties Renusagar Power Co Ltd v. General Electric Company and anor. Applicable NYC Provisions V | V(2) | V(2)(b) Source (1994) 2 Arb LR 405: AIR 1994 SC 860, 885, 888: 1994 Supp (1) SCC 644 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Renusagar Power Co Ltd (“Renusagar”) entered into a contract General Electric Company (“General Electric”), which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”) in Paris. A dispute arose and General Electric referred the matter to arbitration. Renusagar argued that the dispute did not fall within the scope of the arbitration agreement but the Supreme Court of India ruled against it. An award was rendered in favour of General Electric which it sought to enforce before the High Court of Bombay. The High Court enforced the award and Renusagar appealed to the Supreme Court, arguing that (i) the arbitral tribunal had failed to inform it of the potential effects of certain of the Tribunal's decisions, thereby rendering it unable to present its case in violation of Section 7(1)(a)(ii) of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article V(1)(b) NYC); and, (ii) the terms of the award were grossly unfair, so enforcement would be contrary to public policy, in violation of Section 7(b)(ii) of the 1961 Act (mirroring Article V(2)(b) NYC). The Supreme Court dismissed Renusagar’s appeal and affirmed the lower court's decision. The Court rejected Renusagar’s contention that it had been unable to present its case in violation of Section 7(1)(a)(ii) of the 1961 Act because Renusagar voluntarily refused to appear before the arbitral tribunal. Therefore, it could not complain of the alleged effects this had on presentation of its case at this stage in the proceedings. The Court also rejected Renusagar’s public policy argument. First, it held that the term “public policy” in Section 7(1)(b)(ii) of the 1961 Act referred to the public policy of India and not the public policy of New York. It based this conclusion on Article V(2)(b) NYC, which it found to clearly refer to the public policy of the country enforcing the award. Second, it held that the award was not contrary to the public policy of India. The Court determined that under Section 7(1)(b)(ii) of the 1961 Act, the enforcement an award violates the public policy of India if enforcement would be contrary to (i) a fundamental policy of Indian law; (ii) the interests of India; or, (iii) justice or morality. The Court found that no aspect of the award or interest was excessive or unjust, and therefore enforcing the award would not be contrary to India's public policy. see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. International – transnational public policy / §14
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §11
- India / 11 August 1987 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor. / Civil Appeal No. 2319 of 1986
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. International – transnational public policy / §13
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §5
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=411&opac_view=6 Attachment (1)
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Country India Court India, Supreme Court Date 07 May 1992 Parties National Thermal Power Corp v. Singer Company and ors Source 1993 AIR 998; 1992 SCR (3) 106; 1992 SCC (3) 551; JT 1992 (3) 198; 1992 SCALE (1) 1034 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary National Thermal Power Corporation (“National”) entered in two contracts with the respondent Singer Company (“Singer”) for the supply of equipment and commissioning of certain works in India, the General Terms and Conditions of which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”). The General Terms and Conditions expressly stated that the contract was governed by Indian law. A dispute arose which was referred to arbitration under the ICC Rules. As the parties had not agreed to a seat for the arbitral tribunal, the ICC Court decided that the arbitration would have its seat in London. An interim award was rendered which National sought to set aside in India, relying on Sections 14, 30 and 33 of the Indian Arbitration Act 1940 (the “1940 Act”), a statute which applied to domestic awards. The Supreme Court allowed the appeal, holding that the award was a domestic award and therefore Indian courts had jurisdiction to set it aside. The Court found that Section 9 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) clearly indicated that an award rendered in the territory of a foreign State could be enforced as a domestic award if the law of the enforcing state governed the arbitration agreement. Here, the parties intended for Indian law to govern the agreement and mere fact that the award was handed down in London was not enough to supersede the overriding jurisdiction and control of Indian courts. In reaching this conclusion, the Court remarked that the 1961 Act implemented the NYC. In particular, the Court noted that Section 7 of the 1961 Act is “in consonance” with Article V NYC, an Article specifying the conditions under which a foreign award will be recognised and enforced. reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=811&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 07 May 1992 / India, Supreme Court / National Thermal Power Corp v. Singer Company and others
Country India Court India, Supreme Court Date 07 May 1992 Parties National Thermal Power Corp v. Singer Company and others Applicable NYC Provisions V Source http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary National Thermal Power Corporation (“National”) entered in two contracts with the respondent Singer Company (“Singer”) for the supply of equipment and commissioning of certain works in India, each contract providing that any dispute shall be resolved as set out in the General Terms and Conditions. The General Terms and Conditions provided that Austrian law governed the contracts and that any dispute between the parties be resolved under the auspices of the International Chamber of Commerce (“ICC”). A dispute arose which was referred to arbitration under the ICC Rules. As the parties had not agreed to a seat for the arbitral tribunal, the ICC Court decided that the arbitration would have its seat in London. An interim award was rendered which National sought to set aside in India. The High Court in Delhi rejected National’s application on the basis that the award was a foreign award to which the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) applied and, consequently, the Indian courts had no jurisdiction to set aside the award. National appealed the High Court’s decision to the Supreme Court. The Supreme Court allowed the appeal, reversing the decision of the High Court and ordering the High Court to consider National’s application on the merits. The Supreme Court held that Indian law governed the arbitration agreement, with the consequence that the Act was inapplicable. According to the Supreme Court, a “foreign award” to which the Act applies must meet the requirements of Section 2 of the 1961 Act (implementing Articles I and II NYC), as well as the requirements of Section 9 of the 1961 Act. According to Section 9 the 1961 Act does not apply to awards made pursuant to arbitration agreements governed by Indian law. In this case the Supreme Court’s conclusion was that Indian law governed the arbitration agreement. As such, the 1961 Act was inapplicable, with the result that Arbitration Act 1940, applied, under which the High Court did have the power to set the award aside. In reaching this conclusion, the Supreme Court remarked that Section 7 of the 1961 Act is “in consonance with” Article V NYC, with the result that a “foreign award” would be enforced in India as if it were an award made on a matter referred to arbitration in India, considering that. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1396&opac_view=6 Attachment (2)
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Original LanguageAdobe Acrobat PDFJan Paulsson / The New York Convention’s misadventures in India / 7(6) Mealey's International Arbitration Report 18 (1992) - 1992
Author(s) Jan Paulsson Source 7(6) Mealey's International Arbitration Report 18 (1992) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions India Worldcat Number Worldcat : 34947790 ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3035&opac_view=6 India / 23 May 1990 / India, High Court of Delhi / National Thermal Power Corp v. Singer Company and ors
Country India Court India, High Court of Delhi Date 23 May 1990 Parties National Thermal Power Corp v. Singer Company and ors Applicable NYC Provisions I | II | II(3) Source 1990 (2) ARBLR 1 Delhi; 42 (1990) DLT 152 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary National Thermal Power Corporation (“National”) entered in two contracts with the respondent Singer Company (“Singer”) for the supply of equipment and commissioning of certain works in India, the General Terms and Conditions of which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”). The General Terms and Conditions expressly stated that the contract was governed by Indian law. A dispute arose which was referred to arbitration under the ICC Rules. As the parties had not agreed to a seat for the arbitral tribunal, the ICC Court decided that the arbitration would have its seat in London. An interim award was rendered which National sought to set aside in India, relying on Sections 14, 30 and 33 of the Indian Arbitration Act 1940 (the “1940 Act”), a statute which applied to domestic awards. The High Court of Delhi rejected National’s argument, holding that the law governing the arbitration agreement was the law of the seat of the arbitral tribunal and, consequently, that no challenge could be mounted against the award on the basis of the 1940 Act. In reaching this conclusion, the High Court considered that the award was not a domestic award. Pointing to Section 2 of the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”), which the Court expressly considered as incorporating Articles I and II NYC, the Court noted that an award will be a “foreign award” when made (i) pursuant to an agreement in writing to which the NYC applies; and, (ii) in a territory having reciprocal provisions. Turning to the application of those conditions, the High Court considered them both to be satisfied on the facts. In particular, the Court stressed that “agreement in writing” in Article II NYC includes an arbitral clause in a contract or an arbitration agreement signed by the parties. Further, as the Court determined that the parties had agreed for arbitration to take place in London, it found that “[n]ot much argument is, therefore, needed to show that the award in the present case is a foreign award and would be governed by the Foreign Awards Act”. According to the High Court, the fact that the parties had agreed to London as the seat of the arbitration meant that the Indian Arbitration Act was inapplicable and the arbitration agreement was governed by English law. The Court also noted that Article I NYC applies to the recognition and enforcement of arbitral awards made in a foreign country. Finally, the High Court stated that Section 3 of the 1961 Act is “equivalent” to Article II(3) NYC, noting that pursuant to Section 3 any party to legal proceedings may, at any time after putting appearance and before filing written statement or taking any other step in the legal proceedings, apply to the court to stay the proceedings. reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1380&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 12 October 1989 / India, High Court of Bombay / Renusagar Power Company v. General Electric Company
Country India Court India, High Court of Bombay Date 12 October 1989 Parties Renusagar Power Company v. General Electric Company Source 1990 (1) BomCR 561; (1990) 92 BOMLR 70 | http://www.indiankanoon.org (website of decisions of the Supreme Court as well as several High Courts)
Languages English Summary Renusagar Power Co Ltd (“Renusagar”) entered into a contract General Electric Company (“General Electric”), which provided for arbitration under the rules of the International Chamber of Commerce (“ICC”) in Paris. A dispute arose and General Electric referred the matter to arbitration. An award was rendered in General Electric’s favour, which General Electric sought to enforce in India. The Single Judge of the High Court of Bombay granted enforcement of the award, a decision which Renusagar appealed to the High Court of Bombay. The High Court of Bombay dismissed Renusagar’s appeal, ordering that the award be enforced. The High Court emphasised that the Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) had been drawn up to give effect to the NYC. The Court rejected all three arguments advanced by Renusagar. The first of Renusagar’s arguments was that enforcement of the award would be contrary to public policy because the award ordered Renusagar to pay compound interest which was unlawful under Indian law. In rejecting this argument, the Court applied Section 7(1)(b)(ii) Foreign Awards (Recognition and Enforcement) Act 1961 (the “1961 Act”) (mirroring Article V(2)(b) NYC). In particular, the High Court noted that the arbitrators had considered the payment of compound interest to be in consonance with the public policy of New York, whose law governed the contract. In the High Court’s view, this determination by the arbitrators was not dispositive of the issue at hand. The High Court reasoned that it is for the enforcing court itself, not the arbitrators, to determine whether enforcement would be contrary to the public policy of India, not the public policy of the place of the law governing the contract. Applying this test, the Court found that enforcement would not be contrary to the public policy of India, even though the ordering of compound interest is unlawful in India. The Court reasoned that “there is a basic distinction between what is contrary to public policy and what is contrary to our laws”. In the Court’s view, “[i]t is only when a law embodies public policy that its violation will lead to an action which is contrary to public policy”. The Indian statute prohibiting compound interest was not such a law. The second argument which the High Court rejected was that the award should not be enforced because, Renusagar argued, the award had not become “final”, as required by Section 7(1)(a)(v) of the 1961 Act (mirroring Article V(1)(e) NYC). The High Court noted that the scheme of Section 7 of the 1961 Act is biased towards enforcement, and therefore it is for the party resisting enforcement to show that one of the grounds is made out and that, in any event, the court has discretion to enforce the award. It then rejected Renusagar’s argument, stressing that the NYC departed from the Geneva Convention by only requiring that the award be “binding” and not necessarily “final”. In the High Court’s view, an award is “binding” – as the term is used in the NYC – when “no probability exists for an appeal from the award either to a court or to an arbitral tribunal”. In contrast, the Court considered an award to be “final” when “all steps for setting aside the award have either been taken and rejected or the time has expired for having the award set aside”. Turning to the award in the present case, the Court noted that there was no possible appeal against the award according to French law (the law of the seat of the arbitration) so the award was “binding”, even though – according to French law – it would still have been possible to set the award aside. The third argument which the Court rejected was that the petition filed before the Single Judge did not have a duly authenticated copy of the original award, as required by Section 8 (mirroring Article IV NYC). Although the High Court considered that the copy filed had not been duly authenticated as required by the law of the country in which the award was made, the High Court pointed out that there was no dispute that the copy of the award filed was a true copy of the original award. Further, the Court noted, a duly authenticated copy had been filed after General Electric first lodged its application. The Court concluded that any irregularity had been remedied and, consequently, that it “did not see any reason [to] intervene on account of this technical objection”. see also :
- India / 11 August 1987 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor. / Civil Appeal No. 2319 of 1986
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / A. The requirement that the applicant provide the 'award' / ii. Dissenting opinions / §40
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / a. Governing law - (IV) / §48
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1379&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 11 August 1987 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor. / Civil Appeal No. 2319 of 1986
Country India Court India, Supreme Court Date 11 August 1987 Parties Renusagar Power Co Ltd v. General Electric Company and anor. Case number Civil Appeal No. 2319 of 1986 Source 1987 SCR (3) 858 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary Renusagar Power Co Ltd (“Renusagar”) entered into a contract General Electric Company (“General Electric”), which provided for arbitration under the auspices of the International Chamber of Commerce (“ICC”) in Paris. A dispute arose and General Electric referred the matter to arbitration. Renusagar applied to the High Court of Bombay, arguing that the dispute fell outside the scope of its arbitration agreement with General Electric. The High Court of Bombay found for General Electric, a decision upheld by the Supreme Court. Meanwhile, in August 1982, General Electric had filed a suit in the High Court of Calcutta seeking to enforce a bank guarantee issued in favour of Renusagar. Renusagar, in turn initiated court proceedings before the Court of Civil Judge at Mirzapur in November 1982 requesting a declaration that the bank guarantee was unenforceable. General Electric objected on the grounds that, among other things, the Supreme Court’s decision established that the matter should be stayed pending arbitration of the disputes. General Electric also filed an application with the High Court of Allahabad to quash the legal action before the Court at Mirzapur. Both the Mirzapur Court and the High Court of Allahabad found that General Electric had abandoned these objections when it answered the complaint and took other actions that demonstrated intent to proceed with the suit. General Electric appealed to the Supreme Court of India. The Supreme Court allowed the appeal, reversing the lower courts' judgments and staying the proceedings pending arbitration. Under the Section 3 of the 1961 Act (mirroring Article II(3) NYC), if a party requests that a dispute arising under an arbitration agreement be referred to an arbitral tribunal, the court must do so unless the requesting party disentitled itself from making the request, either by filing a written statement or by taking a further step in the proceedings. The Court found that an act will not deprive a party of the right to request arbitration unless it expressly or implicitly manifests an unequivocal intention to abandon the right under the arbitration agreement and litigate the merits in court. Here, the substance of General Electric’s actions indicated it requested a stay before filing a written statement or taking further steps in the proceedings which would obviated its request; therefore, it had not abandoned its right to have the suit stayed. see also :
- India / 12 October 1989 / India, High Court of Bombay / Renusagar Power Company v. General Electric Company
- India / 16 August 1984 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and another
- India / 07 October 1993 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor.
- India / 16 August 1984 / India, Supreme Court / Renusagar Power Co Ltd v. General Electric Company and anor.
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=771&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFIndia / 16 January 1987 / India, Supreme Court / Oil & Natural Gas Commission (ONGC) v. Western Company of North America
Country India Court India, Supreme Court Date 16 January 1987 Parties Oil & Natural Gas Commission (ONGC) v. Western Company of North America Applicable NYC Provisions V | V(1) | V(1)(e) Source 1987 AIR 674; 1987 SCR (1) 1024; 1987 SCC (1) 496; JT 1987 (1) 160; 1987 SCALE (1) 67 | http://www.judis.nic.in (website of the decisions of the Supreme Court as well as several High Courts)
Languages English Summary The Indian Oil and Natural Gas Commission (“ONGC”) entered into a drilling agreement with Western Company of North America (a U.S. company) and agreed to arbitrate any disputes in London in accordance with the provisions of India’s domestic arbitration statute. A subsequent dispute led to an October 1985 award in favor of Western, which then filed suit in a U.S. district court to confirm the award and obtain a judgment against ONGC. ONGC, in turn, petitioned the High Court of Bombay to set aside the award and issue an order enjoining Western from proceeding with its suit in the U.S. court. The High Court held that Western was entitled to bring suit in the U.S. court to enforce the award as a foreign award, that the pending application in the High Court to set aside the award did not affect this right, and that, therefore, an injunction was inappropriate. ONGC then appealed to the Supreme Court of India. The Supreme Court reversed the judgment of the High Court, holding that under India's domestic arbitration law the award did not bind the parties until it was confirmed by an Indian court and that, therefore, under Article (V)(1)(e) NYC the award was unenforceable in the U.S. as it did not yet bind the parties. Consequently, an injunction was appropriate in this case. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=812&opac_view=6 Attachment (1)
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