(The following guest post is contributed by Gunjan Chhabraand RV Prabhat)
The much debated issue of whether two Indian parties can opt for a foreign seat of arbitration finally, came up before the Supreme Court in Sasan Power Limited v. North American Coal Corporation. However, the Supreme Court dodged the bullet and chose to decide whether the parties were in fact two Indian parties or not.
Very recently, a Division Bench of the Madhya Pradesh High Court had ventured into the unknown and broken new boundaries by holding that two Indian parties could have a foreign seat of Arbitration in its Judgment of Sasan Power Limited v. North American Coal Corporation India Pvt. Ltd. The Appeal has arisen under Section 96 of the Code of Civil Procedure, 1908 challenging an Order passed by District Judge, in a Suit filed by Sasan Power. The North American Coal Corporation India Pvt. Ltd. (NACC-India) had filed an application under Order VII Rule 11, objecting under Section 45 of the Arbitration and Conciliation Act, 1996 (Hereinafter called the Act), which had been accepted by the District Judge, resulting in the impugned order which was a subject matter of the challenge.
The original agreement (Agreement I) had been entered into between North American Coal Corporation (NACC-US) and Sasan Power. Thereafter vide a separate agreement, the NACC-US had assigned all its rights and obligations under Agreement I to NACC-India and Sasan Power was also a party to this Agreement (Agreement-II). Agreement I specifically provided for the seat of Arbitration to be London. Thereafter Arbitration was invoked under Agreement I as per ICC rules.
Subsequently, Sasan Power filed a suit in District Court Sangrur seeking a stay on the Arbitration. One of the prayers in the suit was also to declare the arbitration clause and the accompanying request for arbitration as being void and unenforceable. The NACC-India thereafter filed its objections under Section 45 of the Act, which were allowed by the District Judge, against which the Appeal lay to the High Court.
The Sasan Power HC judgment categorically notes the submission of Senior Counsel on behalf of Sasan Power, that once NACC-India has stepped into the shoes of NACC-US, the contract in question becomes one between two Indian Parties, ie. NACC-India and Sasan Power and it was on that basis that the objections of NACC-India under Section 45 were opposed. The Sasan Power HC Judgment particularly notes Sasan Power’s submission, that section 45 would not be applicable in as much as the arbitration could not be a foreign seated arbitration owing to the two Indian parties involved, ie. NACC-India and Sasan Power. As a result of these submissions, the judgment then goes on to discuss whether two Indian Parties can have a foreign seat of Arbitration or not and gives a verdict in the affirmative.
The Madhya Pradesh High Court discusses two different approaches under the scheme of Act:-
- Party-Centric Approach – Where the Nationality of the Party is relevant. This would help to determine whether the Arbitration is International Commercial Arbitration or a domestic Arbitration and is only relevant to determine the procedure of appointment to be adopted under Section 11 of the Act. This approach cannot help to determine whether Part I or Part II of the Act applies.
- Seat-Centric Approach – Where the seat opted by the parties is relevant. This is the approach relevant under the Scheme of the Act for determining whether Part I or Part II of the Act applies. In other words, the determination whether the award is a foreign award or a domestic award can be determined only by the Seat and not the Nationality of the Parties.
On the basis of the above analysis, the Madhya Pradesh High Court had arrived at the conclusion that the scheme of the Act very much provided for a Foreign Seat to be opted without having regard to the nationality of the Parties which meant that it was permissible under the Act for two Indian Parties to opt for a Foreign Seat of Arbitration.
Prior to the Sasan Power HC judgment, this issue was touched upon in TDM Infrastructure, where the Supreme Court had held that it would not be open to two Indian Parties to derogate from the laws of India as being against Public Policy. The High Court however, distinguished TDM Infrastructure as being limited in its application to only issues relating to appointment of arbitrator. TDM infrastructure, it said, had only to see whether the arbitration in issue was an international commercial arbitration or not and thus to see whether 11(6) would apply or not. This court did not succinctly rule upon the issue of whether two Indian parties could opt for a foreign seat or not and thus TDM Infrastructure was said to be inapplicable. The Madhya Pradesh High Court further used the interpretation of Atlas Exports and BALCO to hold that as long as two Indian parties do not exclude the substantive law of the contract by agreement, they are very much free to opt for a foreign Seat.
The Sasan Power HC Judgment was the subject matter of Appeal before the Supreme Court which was finally decided on 24.08.2016. However, surprisingly, the issue of two Indian Parties electing for a Foreign Seat of Arbitration was expressly given up and as a matter of fact the Supreme Court even noted that such a submission was infact never made before the High Court and “Question no. 1 insofar as it pertains to” place of arbitration” found its way into the written submission(before the Supreme Court) by oversight”.
After having expressly refused to deal with the issue of Two Indian Parties electing for a Foreign Seat, the Supreme Court confined itself to the question of whether Two Indian Parties can enter into an agreement with a stipulation that their Agreement be governed by and construed in accordance with laws of UK.
The Supreme Court then went on to discuss, how the disputes and the agreement were in fact never between two Indian Parties but between three parties, ie. NACC-US, NACC-India as well as Sasan Power, because NACC-US, even though it had assigned its rights and obligations could not have assigned its liabilities under Agreement-I. The Supreme Court finally went on to observe that in order to settle disputes under Agreement II, Agreement I will have to be looked into and thus the question of Two Indian Parties” does not arise at all in as much as the foreign element of NACC-US is also present, thereby falling within the gamut of Section 2(1)(f) of the Act.
In view of the above discussion, the Supreme Court concludes that the conclusion arrived at by the High Court, deserves no interference and upholds the order of the High Court.
Does the Madhya Pradesh High Court’s verdict hold good?
A doubt may arise, as to whether MP High Court’s observations in the Sasan Power HC Judgment regarding permissibility of two Indian Parties to opt for a foreign seat still holds good or not. This is because the Supreme Court has not dealt with this particular finding of the Madhya Pradesh High Court (neither rejects it nor accepts it), simply saying that the question never arose in the first place.
In this respect, the ‘Doctrine of Merger’ would squarely apply. The Apex Court, in a catena of decisions has defined the ‘Doctrine of Merger’, to mean that when a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it, either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below.
Applying the ‘Doctrine of Merger’ to the present scenario, only the Supreme Court’s judgment survives. This implies that the Sasan Power HC judgment cannot be relied upon as a precedent on the issue of whether two Indian parties can agree for a foreign seated arbitration as the question is left unresolved by the Apex Court..
Bombay High Court’s decision – the unchallenged champion?
Another judgment of the single judge of Bombay High Court in Addhar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt. Ltd. , relying on the judgment of TDM Infrastructure, had ruled that since both parties are Indian, they cannot derogate from the Indian Law and a seat of Arbitration outside India would not be permitted. A valid question which arises now is since the Addhar Mercantile judgment has not been challenged, does it have any precedential value.
Unfortunately, the Addhar Mercantile judgment suffers from the same vice as that of TDM Infrastructure and that is of being a judgment pronounced under an Application under Section 11 of the Act. Even though a simultaneous petition under Section 9 was also being considered by the Court, the Bombay High Court specifically notes that no views were being expressed on the Section 9 Petition and the same would simply be converted into a Petition under Section 17 to be heard by the Arbitrator.
Under the unamended Act, since the authority of the “Chief Justice or his designate” under Section 11 is not considered a Court of Record, the decisions given by the Court are of no precedential value. In view of the same, even the Addhar Mercantile judgment cannot provide a solution.
It appears as of now, there is no stand of Indian Courts on the issue of whether two Indian Parties can elect for a foreign Seat of Arbitration. Even the Supreme Court, when faced with the issue has chosen to deflect from the subject. As of today, the question still remains shrouded as a conundrum left to be resolved for another day.
 Gunjan Chhabra is an Advocate practicing in various Courts in Delhi. She is currently working with Singhania and Partners, LLP and can be reached at email@example.com
 RV Prabhat is an Advocate practicing in various Courts in Delhi. He is currently working with Singhania and Partners, LLP and can be reached at firstname.lastname@example.org
 Civil Appeal no. 8299 of 2016, Supreme Court of India, decided on 24.08.2016 (Hereinafter referred as “Sasan Power SC Judgment)
 First Appeal No. 310 of 2015, MP High Court, decided on 11.09.2015 (Hereinafter referred as “Sasan Power HC Judgment”
 TDM Infrastructure (P) Ltd. vs. UE Development India (P) Limited (2008) 14 SCC 271
 Bharat Aluminum and Co. vs. Kaiser Aluminium and Co. (2012) 9 SCC 552
 Prior to the Arbitration and Conciliation (Amendment) Act, 2015, the function of Appointment of Arbitrator was entrusted to the Chief Justice of Supreme Court/High Court or his designate. The Amendment has now inserted the words “Supreme Court of India” in place of “Chief Justice of India” and the “High Court” instead of “Chief Justice of the High Court”.
 State of West Bengal & Ors v. Associated Contractors (Civil Appeal No. 6691 of 2005 and 4808 of 2013), Supreme Court of India, decided on 10.09.2014