tag:blogger.com,1999:blog-3202774368551476669.post8764820718312554856..comments2023-09-15T16:21:31.980+05:30Comments on INDIAN CORPORATE LAW: The Supreme Court Declines an Invitation to Extend Bhatia InternationalUmakanth Varottilhttp://www.blogger.com/profile/12438677982004444359noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-3202774368551476669.post-71792279217146945032011-05-24T20:42:29.659+05:302011-05-24T20:42:29.659+05:30Thanks a lot. This really helps. Though it is intr...Thanks a lot. This really helps. Though it is intriguing why the decision of the Delhin HC which was appealed is not available on the court's site.Sumit Raihttp://bookcrazy.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-47789417828976597342011-05-24T05:12:47.664+05:302011-05-24T05:12:47.664+05:30Thank you. The information is available in the Del...Thank you. The information is available in the Delhi High Court's judgment in OMP 283/2009, which more fully extracts the PSC the Government of India entered into on 28 October 1994 (the same PSC in issue in Videocon, between the same parties). I have been unable to find a copy of the order of the Delhi High Court - although some connected matters came up in the OMP above.V. Niranjanhttps://www.blogger.com/profile/08357572960266796641noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-14569640708654684092011-05-22T17:37:15.295+05:302011-05-22T17:37:15.295+05:30If you don't mind, could I ask you where you g...If you don't mind, could I ask you where you get the information regarding stuff that's not in the judgment? Also, is the Delhi HC order reported anywhere? <br /><br />Thanks for the information though, it really helps understand what the SC has tried to do. The judgment does not speak for itself.Sumit Raihttp://bookcrazy.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-79341553434509428782011-05-17T01:09:08.667+05:302011-05-17T01:09:08.667+05:30I agree - it does not follow that the law governin...I agree - it does not follow that the law governing the arbitration agreement is the curial law. In fact, Art. 34.9 of the PSC (not extracted in the judgment of the Supreme Court) provides that the "arbitration proceedings shall be conducted in accordance with..." the UNCITRAL Model Law (subject to Art 34.12 in the event of conflict). I also agree that there is a difference between Hardy Oil and Videocon because Clause 9.5(4) in Hardy Oil designated law governing the arbitration, and not the law governing the arbitration agreement. In that event, the Court would have had to examine whether the designation of a foreign seat of arbitration accompanied by a foreign law governing the arbitration agreement is sufficient to constitute implied exclusion, notwithstanding Indian substantive law. If counsel's contentions have been recorded correctly, it is also worth noticing (para 9, 10) that both parties assumed that the law governing arbitration is English law. <br /><br />On the second point, the Court does not indicate on what it founds its jurisdiction to decide whether the seat of arbitration changed. It may be that it did so as a preliminary issue - and it may not be obiter since the seat of arbitration is a relevant factor under Indian law in ascertaining whether the Indian courts have jurisdiction under Part I. But it is not clear on what basis the Court differed with the Tribunal's finding.V. Niranjanhttps://www.blogger.com/profile/08357572960266796641noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-75471925609028175442011-05-15T22:30:12.560+05:302011-05-15T22:30:12.560+05:30There is an error in your reading of the judgment....There is an error in your reading of the judgment. The contract did not provide 'English law as the law governing arbitration'. The law provided that the arbitration agreement would be governed by English law. Curial law and law governing arbitration agreement are very different things.<br /><br />This distinction and its effect was well understood by the Delhi HC. However, the SC has in its reasoning forgotten the difference and remarked at places that the law of arbitration is English Law. However, in the last paragraph, the Supreme Court notes that the arbitration agreement is to be governed by English Law and then concurring with Hardy Oil (Gujarat High Court) holds that there is a necessary implication that Part I is concluded. This is erroneous on the face of it as Hardy Oil deals with exclusion based on choice of curial law and not the law governing the arbitration agreement. <br /><br />Another thing that the Court never answers is if it has no jurisdiction under Section 9, under what powers has it declared the change of seat by an order of the tribunal recording consent to be invalid? That part of the judgment can at best be regarded as an obiter, founded on no jurisdictional basis.Sumit Raihttp://bookcrazy.wordpress.comnoreply@blogger.com