TaxTMI Login
Just a moment...
Press 'Enter' to add multiple search terms. Rules for Better Search
of 
of 
No Folders have been created
Are you sure you want to delete "My most important" ?
NOTE:
of of 
All Case Laws
of of All Case Laws
Note
Bookmark
Share
Don't have an account? Register Here
of <h1>Interim relief for foreign-seated international arbitration: Part I applies unless excluded; s.9 limited to specified measures only</h1> Part I of the Arbitration and Conciliation Act, 1996 applies to international commercial arbitrations seated outside India unless the parties, by express ... Arbitration and Conciliation Act, 1996 to International Commercial Arbitrations Held Outside India - Part I apply to an arbitration which takes place outside India - Statutory provision - fair and efficient settlement of disputes arising in international commercial arbitration - Whether the language of the Act is so plain and unambiguous as to admit of only the interpretation suggested by Mr. Sen? Held that:- The ‘foreign awards’ which are enforceable in India are deemed to be decrees. A domestic award has to be enforced under the provisions of Code of Civil Procedure, 1908. All that section 36 provides is that an enforcement of a domestic award is to take place after the time to make an application to set aside the award has expired or such an application has been refused. Section 9 does suggest that once an award is made an application for interim measure can only be made if the award is a ‘domestic award’ as defined in section 2(7). Thus, where the Legislature wanted to restrict the applicability of section 9 it has done so specifically. Section 5 provides that no judicial authority shall intervene except where so provided. Section 9 does not permit any or all applications. It only permits applications for interim measures mentioned in clauses (i) and (ii) thereof. Thus, there cannot be applications under section 9 for stay of arbitral proceedings or to challenge the existence or validity of arbitration agreements or the jurisdiction of the Arbitral Tribunal. All such challenges would have to be made before the Arbitral Tribunal under the Act. If a party cannot secure, before or during the pendency of the arbitral proceedings, an interim order in respect of items provided in section 9(i) and (ii) the result may be that the arbitration proceedings may themselves get frustrated, e.g., by non appointment of a guardian for a minor or person of unsound mind or the subject matter of the arbitration agreement not being preserved. This could never have been the intention of the Legislature. The provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply. Issues: Whether Part I of the Arbitration and Conciliation Act, 1996 applies to international commercial arbitrations held outside India or is limited to arbitrations whose place of arbitration is in India.Analysis: A reading of the Act's language and structure shows Part I is applicable to arbitrations held in India and to international commercial arbitrations generally. Section 2(2) states Part I applies where the place of arbitration is in India but does not state Part I will apply only in that situation; omission of the word 'only' (contrasting with UNCITRAL article 1(2)) is significant. Definitions in section 2(1) (including 2(1)(f)) do not distinguish international commercial arbitrations by place. Sub-sections 4 and 5 of section 2 use wide language referring to 'every arbitration' and 'all arbitrations and all proceedings relating thereto' without being made subject to section 2(2). Section 1's extent clause and the proviso regarding Jammu and Kashmir further indicate Part I's broader applicability. Section 2(7) classifies awards made under Part I as domestic awards, which supports coverage of awards from arbitrations in non-convention countries. Sections 5 and 8 use the term 'judicial authority,' reflecting applicability beyond national courts. Section 9 permits applications for interim measures before, during, or after arbitral proceedings but prior to enforcement under section 36, and the text permits such applications irrespective of the place of arbitration. Part II contains special provisions for enforcement of foreign awards under the Conventions and begins some sections with 'notwithstanding anything contained in Part I,' indicating Part I generally applies unless Part II expressly provides otherwise. The Act permits parties by express or implied agreement to exclude provisions of Part I in respect of arbitrations held outside India, and institutional rules (for example ICC Article 23) allow recourse to courts for interim measures where parties so provide.Conclusion: Part I of the Arbitration and Conciliation Act, 1996 applies to international commercial arbitrations held outside India unless the parties, by express or implied agreement, exclude all or any of its provisions; accordingly, courts in India may grant interim measures under section 9 in relation to such arbitrations unless excluded by agreement or applicable rules chosen by the parties.
TaxTMI 
TaxTMI 
