Tuesday, July 16, 2013

A Clarification of BALCO v. Kaiser

In an important judgment, the Bombay High Court has clarified that the judgment of the Supreme Court in BALCO is not entirely prospective: not the entire reasoning of the Supreme Court applies prospectively.  In particular, there have been some recent occasions when questions have arisen as to what the proper court for filing of s.9 application is; and what is the effect of the observations in BALCO on the issue. The Division Bench has observed,

In our view, it would not be appropriate, while applying the ratio of the judgment in BALCO to hold that the reasons which are contained in the judgment would operate with prospective effect. What the Supreme Court has essentially ordered, while moulding the reliefs is that the declaration of law to the effect that Part-I shall apply only to those arbitrations where the place of arbitration in India shall take prospective effect after the date of the judgment. But equally, it would be impermissible to hold that the interpretation which has been placed by the Supreme Court on the provisions of Section 2(1)(e) would apply only prospectively. The judgment of the Supreme Court is declaratory of the position of law that the Court having jurisdiction over the place of arbitration can entertain a proceeding in the exercise of its supervisory jurisdiction as indeed the Court where the cause of action arises.…

The judgment, Konkola Copper Mines v. Stewarts & Lloyds of India in Appeal (Lodging) No 199 of 2013, delivered on July 9, 2013, is available here; and offers guidance on the application of BALCO.  

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