AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 692
X X X X Extracts X X X X
X X X X Extracts X X X X
....before us is whether the petition under Section 34 of the Arbitration Act is maintainable before a court in India, and in this case, the Bombay High Court. 5. On 28.09.2000, the appellant entered into an agreement with the respondent for a supply of large format projection systems for cinema theatres to be installed in theatres all across India. Clause 14 of the agreement contained an arbitration clause which reads as follows: "This Agreement shall be governed by and construed according to the laws of Singapore, and the parties attorn to the jurisdiction of the courts of Singapore. Any dispute arising out of this master agreement or concerning the rights, duties or liabilities of E-City or Imax hereunder shall be finally settled by arbitration pursuant to the ICC Rules of Arbitration." 6. On 16.06.2004, the appellant filed a request for arbitration with the ICC, and claimed damages. On 08.10.2004, the ICC i.e. the chosen arbitral forum fixed London as the place of arbitration i.e. the juridical seat of arbitration, after consulting the parties. FIRST PARTIAL FINAL AWARD 7. On 11.02.2006, the first partial final award was made in favour of the appellant declarin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ceived by the respondent on 01.04.2008. The final award on the issues of interest and costs was amalgamated with the earlier awards, both of which were incorporated by reference into itself. The third final award also stated that the place of arbitration is London. PETITION UNDER SECTION 34 BEFORE THE BOMBAY HIGH COURT 13. On 21.07.2008, the respondent challenged the aforesaid awards under Section 34 of the Arbitration Act before the Bombay High Court in India after a period of more than two years from the first partial award, more than one year from the second partial award and a period of 3 months, 24 days from the final award. 14. The learned Single Judge allowed the notice of motion on the condonation of delay and held that the petition under Section 34 was maintainable before the Bombay High Court. Hence, this appeal. 15. The only question that arises for consideration before us is whether the challenge to the award made by the respondent under Section 34 of the Arbitration Act is maintainable before a court in India. Clearly, if the answer is in the negative it is not necessary to decide the question of delay. Thus, we make it clear that we are not deciding ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he court in Singapore. Secondly, this clause provides that any dispute arising out of this agreement or concerning the rights, duties or liabilities of the parties shall be settled by arbitration. The arbitration shall be pursuant to the ICC Rules of Arbitration. In other words, the parties shall invoke the ICC Rules of Arbitration in case a dispute arises between them concerning their rights, duties or liabilities. The intention is to have the dispute settled by and in accordance with the ICC Rules of Arbitration. In this sense, the ICC Rules of Arbitration must be construed as being read into this clause. THE ICC RULES 19. The ICC Rules provide for the entire conduct of arbitration from its commencement to the passing of an award. They provide that the arbitration shall be conducted by the court i.e. the International Court of Arbitration, appointed by the council of the ICC. A party wishing to have recourse to arbitration under the rules is required to submit a Request for Arbitration to the Secretariat of the ICC along with the information prescribed and in particular comments as to the place of arbitration. The ICC Rules clearly stipulate that the seat of arbitration ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rn and Hunter on International Arbitration, Fifth Edition. Quoting the Supreme Court of Sweden it is stated that:- "...no particular provision concerning the applicable law for the arbitration agreement itself was indicated [by the parties]. In such circumstances the issue of the validity of the arbitration clause should be determined in accordance with the law of the state which the arbitration proceedings have taken place, that is to say, Swedish Law." In the present case, the arbitration clause contemplates an award made in pursuance to the ICC rules without specifying the applicable law for the arbitration agreement. It would therefore be appropriate to hold that the question of validity of the award should be determined in accordance with the law of the state in which the arbitration proceedings have taken place i.e. the English Law. Though for the purposes of this decision we would only hold that the conduct of the parties exclude the applicability of Part-I. In other words, where the parties have not expressly chosen the law governing the contract as a whole or the arbitration agreement in particular, the law of the country where the arbitration is agreed to b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... seat of arbitration may be outside India. In any case, the parties having agreed to have the seat decided by the ICC and the ICC having chosen London after consulting the parties and the parties having abided by the decision, it must be held that upon the decision of the ICC to hold the arbitration in London, the parties agreed that the seat shall be in London for all practical purposes. Therefore, there is an agreement that the arbitration shall be held in London and thus Part-I of the Act should be excluded. 26. The construction that the parties agreed to exclude the applicability of Part-I of the Act and generally to have the entire agreement governed not according to Indian law is also apparent from the express provision that: "This agreement shall be governed by and construed according to laws of Singapore and parties attorn to jurisdiction of the Courts of Singapore". In para 25 of National Thermal Power Corporation vs. Singer Company (1992) 3 SCC 551, this Court held: "On the other hand, where the proper law of the contract is expressly chosen by the parties, as in the present case, such law must, in the absence of an unmistakable intention to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....choose a venue for arbitration outside India. That in our view is sufficient to infer that the parties agreed to exclude Part-I. The ICC could well have chosen a venue in India. The possibility that ICC could have chosen India is not a counter indication of this inference. It could also be said that the decision to exclude the applicability of Part-I was taken when the ICC chose London after consulting the parties. Either way Part-I was excluded. 29. The view that it is the law of the country where arbitration is held that will govern the arbitration and matters related thereto such as a challenge to the award is well entrenched. In Dozco India (P) Ltd. (supra), this Court observed:- "In the absence of express agreement, there is a strong prima facie presumption that the parties intend the curial law to be the law of the 'seat' of the arbitration i.e. the place at which the arbitration is to be conducted, on the ground that that is the country most closely connected with the proceedings. So in order to determine the curial law in the absence of an express choice by the parties it is first necessary to determine the seat of the arbitration, by construing the agreement to....