TaxTMI 
TaxTMI 
TaxTMI 
2008 (8) TMI 803
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....11.2002 unilaterally withdrew the joint bid submitted to RITES without any reference to the applicant. According to the applicant, some of the other terms of the Memorandum dated 11.6.2002 were also breached by the respondent which impelled the applicant to address a letter to the respondent on 23.6.2003 calling upon it to explain the various defaults committed by it. A request was also made to the respondent to enter into a dialogue to work out the fair level of compensation for the losses suffered by the applicant on account of such breach. The allegations contained in the letter were denied by the respondent by its reply dated 20.8.2003. Several letters were thereafter exchanged between the parties culminating in a legal notice being sent on behalf of the applicant to the respondent to compensate the applicant for the losses incurred by it on account of the unlawful acts of the respondent. The response of the respondent to the legal notice was one of denial and assertion that the respondent had acted fairly and properly in the matter. 3. Since all attempts made by the applicant, including resolution of the dispute through an alternate dispute resolution process and mediation, p....
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....matter. It was contended that since in the instant case an application had been made under Section 11 of the Arbitration and Conciliation Act, 1996, it is the said law which has to be treated as the relevant Indian Municipal Law applicable to the instant case. 6. Mr. Gupta urged that a three-Judge Bench of this Court had in Bhatia International vs. Bulk Trading S.A, [2002 (4) SCC 105] held that Part-I of the Arbitration and Conciliation Act, 1996, applies both to domestic and international arbitrations, irrespective of whether the seat of arbitration is in India or not. It was urged that while the present Memorandum was undoubtedly an International Commercial Arbitration, Part-I of the aforesaid Act would still apply thereto and this Court would have jurisdiction to entertain the application made under Section 11 of the aforesaid Act. 7. It was also urged that, although, the parties had decided that the law relating to the working or an understanding of the Agreement was to be the law of England and Wales, there is nothing in the Memorandum to warrant a conclusion that the seat of arbitration is to be outside India in the Courts of England and Wales or that the parties had mutual....
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....ourt. The Judgment and Orders, both of the learned Additional District Judge, Indore, and the Madhya Pradesh High Court, Indore Bench, were challenged before this Court by Bhatia International and it was submitted on its behalf that Part-I of the Arbitration and Conciliation Act, 1996, applies only to arbitrations where the place of arbitration is in India, as has been clearly indicated in Sub-section (2) of Section 2 of the said Act. In the said case, it was also urged on behalf of Bhatia International that Section 2(i)(f) of the Arbitration and Conciliation Act, 1996, defines "International Commercial Arbitration" and that such arbitration could take place either in India or outside India. The submissions made on behalf of Bhatia International were accepted by this Court upon a finding that, although, Section 2 (2) of the Arbitration and Conciliation Act, 1996, provides that Part-I of the Act would apply where the place of arbitration is in India, it did not provide that Part-I would not apply where the place of arbitration is not in India. It was also held that it was nowhere provided that Part-I of the aforesaid Act would not apply to arbitrations taking place outside India. Ac....
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....greement. The procedural power and duties of the Arbitrator are regulated in accordance with the rules chosen by the parties to the extent that those rules are applicable and sufficient and are not repugnant to the procedural law and practice of the seat of arbitration. It was further observed that the concept of party autonomy in international contracts is respected by all systems of law so far as it is not incompatible with the proper law of the contract or the mandatory procedural rules of the place where the arbitration is agreed to be conducted or any overriding public policy. 11. It was submitted that since in the instant case the seat of arbitration would have to be determined by the Arbitrator, once he was appointed, the question as to which law would govern the conduct of the arbitration proceedings should not be decided at this stage. 12. On behalf of the appellant it was lastly urged that clauses 13.2 and 13.3 of the Memorandum of Understanding clearly indicates that the intention of the parties to the said Memorandum of Understanding was to have their disputes resolved by arbitration although the expression used in the said clauses is "adjudication". According to Mr. ....
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....y the courts of the seat of arbitration is merely concurrent and not exclusive and strictly limited to the matter of procedure. 15. Mr. Tripathy submitted that the decision in the aforesaid case supports the proposition that when the parties to the contract, do not express any choice with regard to the law governing the contract or the arbitration agreement in particular, a presumption has to be drawn that the parties intended that the proper law of the contract as well as the law governing the arbitration agreement would be the same as the law of the country which is the seat of arbitration. But when the parties expressly choose the proper law of the contract, as in the instant case, in the absence of a clear intention such law must govern the arbitration agreement also though it is collateral and ancillary to the main contract. 16. Mr. Tripathi urged that similarly where the seat of arbitration is indicated, then, unless there is an indication to the contrary, it will be deemed that the place where the proper law governing the arbitration proceedings is in force is the place chosen by the parties to be the seat of arbitration as well. Learned counsel referred to the decision of....
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....d down certain tests to decide as to what would constitute an arbitration agreement, namely, (i) that the intention of the parties to enter into an arbitration agreement would have to be gathered from the terms of the Agreement; (ii) that even if the words "arbitration" and "arbitrator" are not used in a clause relating to settlement of disputes with reference to the process of such agreement or with reference to the private tribunal which is to adjudicate upon the disputes, it does not detract from the clause being an arbitration agreement if it has the attributes and elements of an arbitration agreement. Conversely, the mere use of the words `arbitration' or `arbitrator" in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. 20. Mr.Tripathy submitted that any ambiguity and vagueness in the arbitration clause would render the same invalid as had been held by the Calcutta High Court in (i) ITC Classic Finance Ltd. vs. Grapco Mining and Co. Ltd, [AIR 1997 Cal. 397] and (ii) Teamco Private Ltd. vs. T.M.S. Mani, [AIR 1967 Cal. 168]. Mr. Tripathy urged that both clauses 13.2 and 13.3....