EMERGENCY ARBITRATION: THE FUTURE OF INTERIM RELIEFS

Introduction
Arbitration is a form of dispute resolution that emerged, inter alia, to provide for a legal mechanism that saves time and resources for the parties. To achieve this, an upcoming concept of Emergency Arbitration(EA)emerged. Emergency Arbitration, as the name suggests, provides emergency relief to those who wish to approach the arbitration institution before the arbitral tribunal is constituted to obtain interim relief. There are two legal principles that form the genesis of Emergency Arbitration. The first being Fumus boni iuris meaning the reasonable possibility that the claimant would succeed on merits. The second is periculum in mora which means that the claimant would suffer irreparable harm if the measure is not granted immediately.1
An Emergency Arbitrator is able to grant interim measures only for a definite period of time and after passing the interim award, becomes functus officio. This means that once the Emergency Arbitrator has rendered a decision, he lacks any power to re-examine that decision.

EMERGENCY ARBITRATION IN THE INTERNATIONAL PERSPECTIVE
The UNCITRAL Model Law does not contain any provisions for Emergency Arbitration. However, the amendment to the UNICTRAL Model Law in 2006 introduced Articles 17 which lays down the power of the arbitral tribunals to grant interim reliefs to parties.2 After this amendment, several arbitration institutions like the Singapore International Arbitration Centre (SIAC)3, The Stockholm Chamber of Commerce (SCC)4, The Mexico City National Chamber of Commerce (CANACO)5, The London Court of International Arbitration (LCIA)6, The Hong Kong International Arbitration Centre (HKIAC)7, and The International Chamber of Commerce (ICC)8 have also sought to amend their rules to provide for Emergency Arbitration.

SCOPE OF EMERGENCY ARBITRATION IN INDIA
In India, Section 9 of the Arbitration and Conciliation Act, 1996 entails that parties may apply for interim reliefs to the concerned court at any time before the enforcement of the arbitral award. Obtaining interim relief through Emergency Arbitration is not included within the ambit of Section 9.
In order to rectify this lacuna, in 2014, the Law Commission’s 246th Report recommended an amendment to the definition of an “arbitral tribunal” to provide for an Emergency Arbitrator. However, this recommendation did not transpire when the Arbitration and Conciliation (Amendment) Act, 2015 came into force. Regardless, the Delhi (Arbitration Proceedings) Rules 2018 in its Section 14, the Mumbai Centre for International Arbitration (Rules) 2016, under Section 3 and The Madras High Court Arbitration Centre Rules, 2014, under Section 20 are some institutions that provide for Emergency Arbitration in their rules.

INDIAN CASE LAWS
While Emergency Arbitration is not recognized by the Act of 1996, the Indian Courts have deliberated upon this issue. The first case that dealt with Emergency Arbitration was HSBC PI Holdings (Mauritius) Ltd. v. Avital Post Studioz Ltd &Ors.9 The case involved an arbitration agreement by which the parties reserved their right to seek interim reliefs before the national courts of India. The parties resorted to Emergency Arbitration in Singapore and sought to enforce the same in India. The Bombay High Court vide its order in 2014 upheld the award of the Emergency Arbitrator and while granting interim relief observed that the “Petitioner has not bypassed any mandatory conditions of enforcing ability since it was not trying to obtain direct enforcement of the interim award”. It is appropriate to point out that this judgment was passed before the Supreme Court passed its judgment in Bharat Aluminum Co. (BALCO) v. Kaiser Aluminum Technical Service Inc.10 In the BALCO case, it was stated that Part I of the Arbitration Act, 1996 would not apply to international commercial arbitration. Since the HSBC judgment dealt with a pre-BALCO agreement, the Bombay High Court gave effect to the award passed by the Emergency Arbitrator by granting similar reliefs to the petitioner under Section 9 of the Arbitration Act.

Another case came up before the Delhi High Court in Raffles Design International India Private Limited &Ors. v. Educomp Professional Education Limited &Ors.11 This case involved an arbitration agreement that was governed by the laws of Singapore. The parties resorted to an Emergency Arbitrator in Singapore, wherein an interim order was passed, which was later enforced in the High Court of Singapore. The party who obtained the favorable order later filed an application under the amended Section 9 seeking interim reliefs. The Delhi High Court, while allowing the maintainability of such petitions, highlighted the relevancy of the amended Section 2(2) of the Act and the widened powers vested in the Court to grant interim reliefs. The court mentioned that Section 9 now applies to international commercial arbitrations, even if the place of arbitration is outside India.

The legal status of Emergency Arbitration has recently been brought to the forefront by the Delhi High Court in the case of Future Retail Ltd. v. Amazon. Com NV Investment Holdings LLC and Ors.12

FACTS OF THE DISPUTE: In this case, Amazon adduced the arbitration clause in the Shareholders Agreement between Amazon and Future Coupons Pvt. Ltd. along with the promotors of Future Retail Ltd. (FRL) after learning about the acquisition of the assets of FRL by Reliance Retail Ventures Ltd. The arbitration clause was invoked which stated that-
(i) Any dispute would be referred to arbitration in accordance with the arbitration rules of the SIAC,
(ii) The seat and venue of the arbitration would be New Delhi, and
(iii) The choice of jurisdiction and venue shall not prevent either Party from seeking injunctive reliefs in any appropriate jurisdictions.

After the arbitration was invoked, Amazon made an application to SIAC for conducting Emergency Arbitration and it obtained an injunction against FRL from going forward with its acquisition. Relying on this order of the Emergency Arbitrator, Amazon made representations to various statutory and regulatory bodies in India and attempted to thwart the approval procedures in India that are necessary for the transaction of acquisition. FRL filed a suit and an interim application therein, to seek a permanent and temporary injunction against Amazon.
The primary contentions made by FRL were that –
(i) The Emergency Arbitration is outside the scope of the Arbitration Act, and therefore, the award passed by the Emergency Arbitrator is in nullity,
(ii) The SIAC Rules take away the right of the parties to approach the Courts in India, and
(iii) The Emergency Arbitrator is not an arbitral tribunal under Section 2(1)(d) of the Arbitration Act as the Parliament did not amend the definition of ‘arbitral tribunal’ despite the recommendation made by the Law Commission in that regard.

HELD: A single-judge bench of Justice J.R.Midharejected the contentions of FRL and held that –
i. Party autonomy is the backbone of arbitration. Therefore, as the parties to the agreement had chosen the curial law being the SIAC Rules, the arbitration arising out of that agreement would be governed by the procedure as prescribed under those rules, subject to the public policy of India and the mandatory provisions of the Arbitration Act. Further, the Arbitration Act, under Section 2(8), allows parties to choose a procedural law different from the proper law of contract, and therefore, there is nothing in the Arbitration Act that prohibits the contracting parties from obtaining emergency relief from an emergency arbitrator;
ii. The SIAC Rules, under Rule 30.3, make provisions for a party to approach a judicial authority for a grant of interim relief. Therefore, the said rules themselves recognize and uphold the right of a party to avail interim relief under Section 9 of the Arbitration Act. Thus, the SIAC Rules do not take away the substantive right of the parties to approach the Courts in India for interim relief;
iii. Emergency Arbitration is not outside the scope of Section 2(1)(d) of the Arbitration Act, because the Parliament did not accept the Law Commission’s recommendation to include an EA in the definition of an “arbitral tribunal”. The development of the law cannot be thwarted merely because a certain provision recommended by Law Commission is not enacted by the Parliament. Therefore, it cannot be held that an Emergency Arbitration is outside the scope of Section 2(1)(d).
iv. Due to the aforesaid reasons, the Emergency Arbitration is not a ‘Coram non-judice’, and the consequential Emergency Arbitration order is not invalid.
CONCLUSION

Emergency Arbitration is thus an upcoming provision receiving much traction. This is because the process promotes party autonomy as Emergency Arbitration is agreed to by the parties themselves. It is also consistent with the parties’ intention to avoid the hassles of litigation. The Arbitration and Conciliation (Amendment) Act, 2019, has promoted institutional arbitration by including separate provisions for arbitral institutions. The Judiciary has also endeavored to provide for relevant precedents to remain in consonance with international standards. This validation received by Emergency Arbitration makes it clear that this field is bound to grow in India.

1Yadav, Dr Vikrant, Emergency Arbitration under Institutional Arbitration Rules: A Comparative Study, International Journal of Law, Volume 3; Issue 3; May 2017 (Available at https://ssrn.com/abstract=3621191)
2UNCITRAL Model Law on International Commercial Arbitration, 2006 available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf
3SIAC Rules (2016), Schedule 1.
4SCC Rules (2010), Expedited Rules and Appendix II.
5CANACO Rules (2008), Articles 36 and 50.
6LCIA Rules (2014), Article 9.
7HKIAC Rules (2018), Article 38.
8ICC Rules (2017), Article 29(1) and Appendix II.
92014 SCC OnLine Bom 102.
10(2012) 9 SCC 552.
112016 (234) DLT 349.
122021 SCC OnLine Del 412.

APPEALS IN ARIBITRAL APPOINTMENTS – A NEED FOR REVALUATION

Section 8, 11 and 37 of the Arbitration and Conciliation Act, 19961(The Act), are provisions relating to ‘reference to arbitration’, ‘appointment of arbitrators’ and the ‘scope of appealable orders’ respectively. The Hon’ble Supreme Court in a recent judgement delivered in the case of Pravin Electricals Pvt. Ltd. v. Galaxy Infra and Engineering Pvt. Ltd.,2 noted that the Parliament may need to have a re-look at Section 11 and Section 37 of the Arbitration and Conciliation Act, 1996 so that orders passed under Section 8 and 11 are brought at par with respect to their appealability. This case arose out of a petition filed under Section 11(6) of the Act, for appointment of a Sole Arbitrator.

FACTS

The Respondent, Galaxy Infra and Engineering Pvt. Ltd. (Galaxy Infra), is a company incorporated in Distt. Vaishali, Bihar and is in the business of providing consultancy services. The Appellant, Pravin Electricals Pvt. Ltd. (Pravin Electricals), provides services for electrical supplies. Pravin Electricals was awarded the work by South Bihar Power Distribution Company Ltd. (SBPDCL). Galaxy Infra allege that it had made substantial efforts under a Consultancy Agreement (Agreement) to facilitate Pravin Electricals in getting the contract for which it was entitled to commission. Pravin Electricals denied any such agreement. Galaxy Infra invoked Article 14 of the agreement, in which they nominated a Sole Arbitrator. Pravin Electricals denied execution of the same.

Galaxy Infra filed a petition under Section 11(6) of the Act for appointment of a Sole Arbitrator on the basis of the alleged agreement. The learned Single Judge of the Delhi High Court passed the impugned judgement on 12th May,2020 and held that the Agreement was indeed executed. The Court rejected Pravin Electricals’ assertion that the agreement was not signed by both the parties. The Hon’ble High Court, while relying upon Caravel Shipping Services Pvt. Ltd. v. Premier Sea Foods 3 and Jugal Kishore Rameshwardas v. Goolbai Hormusji4 , stated that it is not mandatory for an arbitration agreement to be signed by the parties. Consequently, the Court appointed Justice G.S. Sistani, a former Judge of the Delhi High Court, as the Sole Arbitrator to adjudicate the dispute. Pravin Electricals appealed before the Supreme Court.

HELD

The Apex Court, allowing the appeal, stated that there is indeed some documentary evidence pointing towards the fact that there exists “some dealing between the Appellant and the Respondent qua a tender floated by SBPDCL, but that is not sufficient to conclude that there is a concluded contract between the parties, which contains an arbitration clause.” The Court, relying upon Vidya Drolia v. Durga Trading Corporation5 (Vidya Darolia), held that the prima facie review can lead to only one conclusion on the facts of this case, “that a deeper consideration of whether an arbitration agreement exists between the parties must be left to an Arbitrator who is to examine the documentary evidence produced before him in detail after witnesses are cross-examined on the same.”

The Hon’ble Supreme Court set aside the order of Delhi High Court as far as it held that that there exists an arbitration agreement but not appointment of an arbitrator. The Court doubted the validity and existence of the arbitration agreement on factual terms but it refused to draw any conclusion regarding the same. Applying the precedents related to prima-facie review6 and parameters of review,7 the Court left to the discretion of the arbitrator to decide whether such an agreement exists or not. It further clarified that all issues must be decided without being influenced by the observations made by the Court.

SC ON REFERENCE TO ARBITRAL TRIBUNALS

Section 8 discusses power of a judicial authority to refer parties to arbitration where there is an arbitration agreement. Section 11(6) talks about appointment of an arbitrator where individuals responsible for appointment fail to do so. Section 11(6A) talks about examination of the existence of an arbitration agreement while Section 11(7) makes such appointments non-appealable. Sub-sections 6A and 7 of Section 11were omitted by The Arbitration and Conciliation (Amendment) Act, 2019 (Act 33).8

Sections 8 and 11 were amended following the 246th Law Commission Report. The Supreme Court in Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman9 (Mayawati Trading) reflected changes made by the 2015 amendment. This case delineated three kinds of issues when the Court is approached for appointment and mirrored the approach followed in National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd. (Bhoghara).10

In the first category, the Court will have to decide on issues determining whether the approached High Court is the forum conveniens or not and whether the party who has applied is a party to the arbitration agreement or not. The Court may choose to decide the second category of issues or it can leave them to the decision of the Arbitral Tribunal. These issues are related to determining whether the claim is a long-barred claim or not and whether the parties have concluded the contract/transaction. In the third category, the Court must leave the issues exclusively to the Arbitral Tribunal. These are issues related to jurisdiction of arbitral tribunal and the merits of the claims involved.

“PRIMA FACIE” TEST

In Vidya Drolia,11 the Court laid down similar parameters of review to what was followed in Boghara12 and Mayavati Trading.13 Furthermore, the Court followed that if it becomes too reluctant to intervene, it may undermine effectiveness of both the arbitration and the Court. However, it must not undertake a detailed full review or a long-drawn review at the referral stage as it would obstruct and cause delay undermining the integrity and efficacy of arbitration as a dispute resolution mechanism. The Court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis.

When it appears that prima facie review would be inconclusive, or on consideration inadequate as it requires detailed examination, the matter should be left for final determination by the Arbitral Tribunal.14 The prima facie review at the reference stage is to cut the weed off in straightforward cases. It is not full review but a primary first review. As held in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd.,15 the Court should not get lost in thickets and decide debatable questions of facts. Referral proceedings are preliminary and summary, not a mini trial. Similarly, in Vimal Kishor Shah v. Jayesh Dinesh Shah,16 the test applied at the pre-arbitration stage was whether there is a “good arguable case” for the existence of an arbitration agreement.

IMBALANCE IN APPEALS

Section 8, 11 and 37 are provisions relating to ‘reference to arbitration’ and ‘appointment of arbitrators’ and the ‘scope of appealable orders’ respectively. Section 11(6A) was inserted following the 2014 report by Law Commission of India whereby the scope of examination in Section 11 was to be restricted to the ‘examination of existence of the arbitration agreement’. However, Act 3317 omitted Clause 6(A) along with Clause 7 of Section 11 which prohibited appeals against orders passed under Section 11. A party can only appeal under Section 37 against an order passed by a Court. Section 37 restricts the scope of filing an appeal to orders passed under Sections 8, 9, 34, 16 and 17. Regarding appeals against orders referring parties to arbitration, there was already an imbalance. A party could appeal against an order passed under Section 8 of the Act but a similar order under Section 11 was explicitly non-appealable by way of Section11(7). The 2019 amendment, instead of sorting out the imbalance, created a further uncertainty after the omission of Section 11(7). There exists no statutory provision to bar or to allow appeals against orders made under Section 11. The Hon’ble Supreme Court, in the case at hand, observed that Section 8 and Section 11 need to be at par with respect to appealability; and thereby advised the Parliament to have a relook at Sections 37 and 11(7).

SUMMARY

The decision of Hon’ble Supreme Court in the present case is reflective of the judiciary’s pro-arbitration approach. Additionally, such a decision affirming a prima-facie interference is also in consonance with international arbitration jurisprudence which generally asked courts not to review the merits of disputes that are meant to be arbitrated.18 An application under Section 8 of the Act is subject to a prima facie determination of the validity of the arbitration agreement. A prima facie determination of the validity of the arbitration agreement would entail a consideration of the factors laid down in Vidya Drolia.19 The omission of Section 11(6A) was with the intent to empower an arbitral tribunal with the authority to independently determine issues related to arbitration agreement without interference of courts. However, a limited prima facie review does not, in any way, interfere with the principle of competenz-competenz.20 The intention behind omission of Section 11(7) might have been to make orders under section 11 appealable. However, when the legislature chose not to explicitly mention the same, it created an air of confusion around appealability of orders passed under Section 11. The Parliament must seek for an amendment in the Act with respect to the relevant provisions so that orders made under Sections 8 and 11 are brought on par qua appealability.

1The Arbitration and Conciliation Act, 1996.
22021 SCC OnLine SC 190.
3(2019) 11 SCC 461.
4AIR 1955 SC 812.
5(2021) 2 SCC 1.
6Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. (2005) 7 SCC 234 [hereinafter “Shin-Etsu”]; Vimal Kishor Shah v. Jayesh Dinesh Shah (2016) 8 SCC [hereinafter “Vimal Kishor”].
7National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd. (2009) 1 SCC 267 [hereinafter “Bhoghara”]; Vidya Drolia, Supra
8Act 33 of 2019.
9(2019) 8 SCC 714.
10Bhoghara, Supra 7.
11Vidya Drolia, Supra 5.
12Bhoghara, Supra 7.
13Mayavati Trading, Supra 9.
14 Vidya Drolia, Supra 5.
15 Shin-Etsu, Supra 6.
16Vimal Kishor, Supra 6.
17 Supra 8.
18Stephen M Schwebel, International Arbitration: Three Salient Problems (Grotius Publications 1987), 3-6.
19Vidya Drolia, Supra 5.
20Vimal Kishor, Supra 6.

JUDICIAL INTERVENTION IN ARBITRAL AWARDS: MORE GUIDANCE LESS GATEKEEPING

“Expeditious disposal, finality of arbitral awards, limited judicial intervention and limited review of awards can be defined as four pillars on which the edifice of law governing “Alternate Dispute Resolution Mechanism” is built. These four pillars are not exhaustive, but can be described as essential pillars”.1

INTRODUCTION

The independence from the sluggish and overburdened judicial system has made arbitration the preferred option for parties to resolve their high-stake and technically unique disputes discreetly, amicably and relatively expeditiously. The intention behind the Arbitration and Conciliation Act, 19962 (‘the Act’) wasto enable parties to independently deal with their disputes by giving them the tools to choose their own forum and arbitrators depending on what suits their needs the best. Role of the Court has been therefore purposefully confined to that of a supervisory authority. It is primarily to support the arbitral process and expedite it as much as possible and intervene in the process as little as possible. This does not mean that Courts do not have an important role to play. Whether court intervention is viewed as supporting or as interfering with the arbitral process depends upon a range of factors including the timing, manner and degree of such intervention. Much will also depend upon the relative importance of the competing concepts of party autonomy and due process. As a consequence the question of whether intervention supports or interferes with the arbitral process has been often hotly debated.

International Position

Consolidated in the New York Convention, 19583 , the international position has consistently been to encourage a pro-arbitration and pro-enforcement stand. The same has been reflected in the UNCITRAL Model Law4 as well which is in consonance with the New York Convention. It consists of a number of provisions which empower courts to assist and, if thought necessary, to intervene in aspects of the arbitral process. Article 5 of the Model Law expressly prohibits any court intervention beyond its provisions. It sets out the boundaries of judicial intervention, which inter alia includes Article 34 and 36 of the Model Law. This provision is a proof of the intention to have minimal intervention and has been interpreted strictly. There is no provision in the Model Law for any form of appeal from an arbitral award, on the law or on the facts, or for any judicial review of the award on its merits. If the tribunal has jurisdiction, the correct procedures are followed and the correct formalities are observed, the award whether good, bad or indifferent, is final and binding on the parties.5

Even https://www.cialispascherfr24.com/vente-cialis-en-belgique/ before the English legislation of Arbitration and Conciliation Act, 1996 (‘UK Act’) came into force, Section 66 to Section 71 of which deal with Powers of the court in relation to award, the English Courts had already set precedents establishing boundaries for themselves beyond which they could not interfere with arbitral Awards. In the landmark case of Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd6, the Court was of the view that as a matter of general approach the courts should strive to uphold arbitration awards. The approach is to read an arbitral award in a reasonable and commercial way expecting, as is usually the case, that there will be no substantial fault that can be found in it. Once the UK Act came into force, the Courts only further defined the role they are to play with arbitral Awards, specifically confining the scope of ‘substantial injustice’ under Section 68 of the UK Act7 . It wasestablished that it is not normally appropriate for the court to try the material issue in order to ascertain whether substantial injustice has been caused. To do so would be an entirely inappropriate inroad into the autonomy of the arbitral process8. It is wrong for the Court to allow a party to use Section 68 of the UK Act to challenge the decision on a question of facts and should exercise great care and circumspection to identify cases which genuinely give rise to a serious irregularity9. Section 68, which specifically deals withapplications to the court to challenge an award in the proceedings on the ground of serious irregularity, is concerned with due process and not with whether the tribunal has made the right finding of fact, nor is it concerned with whether the tribunal has made the right decision in law. It is pertinent for the Court to keep in mind that the assessment and evaluation of evidence is a matter exclusively for the tribunal and the Court therefore has no rights in that regard.10

Singapore which has emerged as a popular choice for Arbitration is an apostle of the minimal curial intervention policy and has only had a handful of decisions in which Courts have set aside arbitral Awards. The Model Law has force in Singapore and along with the International Arbitration Act, 1994 (‘IAA’)11 has led the Courts to take a very strong pro-arbitration position with respect to challenges against and enforcement of international awards as is evident insignificant decisions such as Astro Nusantara International BV v PT Ayunda Prima Mitra12 and PT Pukuafu Indah v Newmont Indonesia Ltd13 in which the Courts have strengthened the principle of avoiding curial interference of arbitral Awards.

The Court of appeal of Singapore in its judgment of Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd14 laid down two primary considerations to minimal curial intervention. First is to recognise the autonomy of the arbitral process by encouraging finality so that its advantage as an efficient alternative dispute resolution process is not undermined. Second is that by virtue of opting arbitration it must be acknowledged that parties have accepted to bound themselves to a very limited number of options before Court. It would be then unfair and inappropriate for a dissatisfied party to have Court intervene in the guise of appellate function except for in very specific situation provided for in the statute. The Court stated that,

“… It must always be borne in mind that it is not the function of the court to assiduously comb an arbitral award microscopically in attempting to determine if there was any blame or fault in the arbitral process; rather, an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied.”

It must always be borne in mind that it is not the function of the court to assiduously comb an arbitral award microscopically in attempting to determine if there was any blame or fault in the arbitral process; rather, an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied15. The High Court of Singapore in 2014 further narrowed down the scope of meddling with arbitral Awards in the judgment of BLC and others v BLB and another16. It held,

“…the review should not involve a re-argument or re-trial of the arbitration. I must emphasise that it is not the role of the court to rake through the award and the record fastidiously with the view to finding fault with the arbitral process. Instead, “an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied”

U.K. and Singapore are not the only nation-states that have taken steps to ensure a pro-arbitration ecosystem with a pro-enforcement bias for both domestic Awards as well as foreign Awards. States such as United States of America17, France18, Australia, New Zealand19 and even China have taken various steps to remove the various roadblocks that one may face when trying to get their Award enforced. India too has had a learning curve with respect to enforcement of Awards, domestic as well as foreign with recent Supreme Court judgments paving the way.

SECTION 34& 48: A BALANCING ACT

Section 3420 of the Act provides for recourse to a Court against an arbitral Award by making an application to set aside such Award.The Courts mayset aside domestic Awards if any of the five grounds in Section 34(2) (a) whichinclude if any party was under some incapacity, or agreement is not valid under the law it was subjected to, or if no notice was given the party making such an application, or if the dispute dealt in the Award was beyond the scope of the agreement or if the tribunal was not composed according to the agreement. There are two additional grounds as contained in section 34(2) (b) of the Act- Subject matter not capable of settlement by arbitration under the law or if the Award is in conflict with Public Policy of India.Section 48 on the other hand enables a party to make a request to the Court to refuse enforcement of a foreign Award. It provides that the Court ‘may’ refuse to enforce a foreign arbitral award in India. Compared to Section 34,Section 48 is a similarly worded provision, both sections being variations of Article 34 and Article 36of UNCITRAL Model Law respectively. Even though some of the grounds laid down may be similar to those laid down in Section 34, a successful proceeding under Section 48 does not amount to setting aside of the Award. It only means that enforcement of foreign Award may not take place within Indian Territory through process of Indian Courts.21

In the past few years, Indian Courts have taken a stand to narrow down the scope of their interference when it comes to setting aside or refusing an Award. In two recent landmark judgments, Ssangyong Engineering & Construction Co. Ltd. v National Highway Authority of India22 (‘Ssangyong’) and as Vijay Karia v Prysmian Cavi E. Sistemi Srl and others23 (‘Vijay Karia’), the Hon’ble Supreme Court of India has further defined and narrowed down the scope of intervention in Section 34 and Section 48 of the Act respectively. In the Ssangyong case, the Apex Court clarified the contours of Section 34 (2)(b)(ii) of the Act, which empowers the Courts to set aside an arbitral Award in conflict with the public policy of India. The Court elucidated that the phrase ‘to be in conflict with public policy of India’ means to substantially or procedurally, breach some fundamental principle of justice which shocks the conscience of the Court. It further laid out that,

“Under no circumstance can any Court interfere with an arbitral Award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which is contrary to the ethos of Section 34 of the 1996 Act.”

In case of Vijay Karia, the two judge bench judgment, authored by Justice R.F. Nariman, explained the grounds under Section 48. The judgment categorised the grounds into 3 categories namely-

  • Category I- Conditions that affect jurisdiction, such as invalidity or illegality of the arbitral agreement.
  • Category II- Grounds that affect party interest alone such as inability of a party to present its case.
  • Category III- Grounds that deal with public policy of India.

The Court interpreted that the term ‘may’ is to be read as shall i.e. as a mandatory provision in case of Category I and Category III. This means that the Court must refuse the enforcement of the foreign Award when such grounds are established before the Court. As for Category II, the Vijay Karia judgmentallows the Courts to enforce a foreign award even when the party requesting the refusal of the enforcement of the foreign award successfully establishes the conditions enshrined in Category II, provided that the Court is satisfied that no prejudice has been caused to such party. The Apex Court also stated that,

“The Policy of the legislature is that there ought to be only one bite at the cherry in a case where objections are made to the foreign award in the extremely narrow grounds of Section 48.”

The Court has upheld the pro-enforcement principle by narrowing down the window in which the section applies and reaffirming the discretionary powers enshrined with the Courts to not refuse recognition.

CONCLUSION

It is often the most common opinion that Court intervention in matters of Arbitration is unwarranted interference. That this interference causes unnecessary delays and gives unfair opportunities to Award- Debtor to defer from performing the obligations or making payments as set out in the awards. But as Lord Mustill Observed, it is only a Court with coercive power that could rescue an arbitration which is in danger of foundering24. The fact of the matter is that it is through Courts’ support that expeditious arbitral proceedings are possible which culminate in Awards that are final and binding. As is evident, Courts through their various decisions have shepherded the arbitral system into becoming more self-reliant and dependable. The Courts have also started to appreciate the fact that the parties choose Arbitration being cognizant of the fact that the method they have chosen is a way to amicably and expeditiously resolve disputes between them which may not necessarily mean receiving an award which passes the litmus test of being a well written judgment. All that such an Award needs to pass is the narrow set of standards laid down in the legislation. What remains to be seen is whether this trend of pro-enforcement bias continues or not.

1GM Railways v Veeyar Engineers & Contractors, 2019(3) RAJ 664 (Mad)
2Arbitration and Conciliation Act, 1996
3Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
4UNCITRAL Model Law on International Commercial Arbitration (United Nations document Al40117, annex I), 1985
5Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration (Sweet & Maxwell, 4th Ed, 2004)
6[1985] 2 EGLR 14
7Section 68, Arbitration and Conciliation Act, 1996, U.K.
8Vee Networks v. Econet Wireless International Limited,Para 90, [2004] EWHC 2909 (COMM)
9Schwebel v Schwebel, Para 23,[2011] 2 AER (Comm) 1048
10UMS Holding Limited, Energy Standard Fund Limited, Energy Standard Industries Limited v Great Station Properties S.A., Inter Growth Investments Limited, Stremvol Holdings Limited, [2017] EWHC 2398 (Comm)
11International Arbitration Act, Chapter 143A
12Astro Nusantara International BV and Others v PT Ayunda Prima Mitra and Others [2012] SGHC 212 (Belinda Ang Saw Ean J).
13PT Pukuafu Indah v Newmont Indonesia Ltd [2012] SGHC 187 (Lee Seiu Kin J).
14[2007] 3 SLR(R) 86
15Supra
16[2014] SGCA 40
17524 F. Supp. 2d 332 (SDNY 2007).
18B Hanotiau and O Caprasse, ‘Arbitrability, Due Process and Public Policy Under Article V of the New York Convention’, Journal of International Arbitration, (2008) Vol. 25(6) 712 at 735.
19UNCITRAL-MOJ-KCAB Joint Conference: Arbitration Reform in the Asia Pacific Region: Opportunities and Challenges, 11-12 November 2013, Seoul, Republic of Korea.
20Section 34, Arbitration and Conciliation Act, 1996
21HPCL v Videocon Industries Ltd, 2012 (3) Arb LR 194 (Del)
22Civil Appeal No. 4779 of 2019, Supreme Court of India, 08.05.2019
23(2020) SCC OnLine SC 177
24John Lurie, “Court Intervention in Arbitration: Support or Interference” (2010) 76(3) The International Journal of Arbitration, Mediation and Dispute Management 447.

LIMITATION AS A PRELIMINARY ISSUE

INTRODUCTION

Period of limitation is a timeframe prescribed by law within which a suit, appeal or an application has to be made, beyond which it will be liable to be dismissed. Section 31 of the Limitation Act, 1963, lays down that every suit instituted, appeal preferred, and application made after the prescribed period i.e. the period of limitation shall be dismissed, even when limitation has not been set up as a defence. The Civil Procedure Code, 1908 (hereinafter referred to as Code) provides in Rule 11 (d) of its Order VII2 that a suit which appears from the statement in the plaint to be barred by any law, as the case may be under Section 3 of the Limitation Act, shall be rejected.

A preliminary issue can be described as a distinct element of a dispute that has the potential to decisively conclude the claim, or a substantial part of the claim, or otherwise substantially cut down on the scope and costs of the litigation. Rule 2 of Order XIV of the Code3 deals with the framing of preliminary issues. It States that the Court is to pronounce judgment on all issues:-

  • (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues.
  • (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
    • (a) the jurisdiction of the Court, or
    • (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

This blog aims to look at the nature of question regarding limitation and whether a question of limitation can be tried as a preliminary issue.

CAN MIXED QUESTIONS OF LAW AND FACTS BE DECIDED AS PRELIMINARY ISSUE?

Rule 2 of the Order XIV of the Code was substituted by Section 64 of the Code of Civil Procedure Code (Amendment) Act, 19764. Prior to the amendment, the rule read as follows-

Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.

In 1964, the provisions of this rule came before the Apex Court for consideration in the case of Major S.S. Khanna vs. Brig. F.J. Dillon6 (hereinafter referred to as Major SS Khanna Case) where it was held that only where the court is of the opinion that the whole suit may be disposed of on the issues of law alone that the jurisdiction to try issues of law apart from the issues of fact may be exercised, but it is pertinent to note that the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact preliminarily. It further held that normally all the issues in a suit are to be tried by the Court and it shall not do so in situation where the issues, even of law, depend upon issues of fact, would result in lopsided trial of the suit.

The substituted Rule came in force on 1st of February, 1977. The Rule was substituted to provide that although a suit can be disposed of on a preliminary issue, the Court shall ordinarily pronounce judgement on all issues; but where any issue relates to the jurisdiction of the Court or a bar created by any law for the time being in force, the Court may postpone settlement of the other issues until the preliminary issue with regard to the jurisdiction of the Court or such bar has been determined and the Court may deal with the suit in accordance with the determination of such preliminary issue.

Though there has been a slight amendment in the language of Order XIV, Rule2 Code of Civil Procedure by the amending Act, 1976 but the principleenunciated in decision in Major SS Khanna Case still holds good with respect to the principle that the Code confers no jurisdiction upon thecourt to try a suit on mixed issues of law and fact as a preliminary issue andwhere the decision on issue of law depends upon decision of fact, it cannotbe tried as a preliminary issue.

In Ramdayal Umraomal vs. Pannalal Jagannathji7 , a Full Bench of Madhya Pradesh High Court has observed that under Order XIV, Rule 2, mixed questions of law and fact requiring recording of evidence cannot be tried as a preliminary issue.

The Apex Court in the matter of Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehtaand Ors.8 (hereinafter referred to as Ramesh Desai Case) held that in the case of a disputed question of fact, the question of limitation cannot be decided as apreliminary issue without a decision on facts based on the evidence that has to beadduced by the parties. The Court has no jurisdiction Under Order XIV, Rule 2 of the Code todecide a mixed question of law and fact as a preliminary issue.

CAN LIMITATION BE DECIDED AS A PRELIMINARY ISSUE?

In the case of Nusli Neville Wadia vs. Ivory Properties and Ors.9 (hereinafter referred to as Nusli Neville Wadia Case) the Apex Court is of the opinion that it is permissible for a Court to reject a plaint barred by limitation under Order VII, Rule 11(d) of the Codewhere the plaint averment itself indicates the cause of action to be barred by limitation and no further evidence is required to adjudicate the issue.

The Apex court had held in the case of Narne Rama Murthy vs. Ravula Somasundaram and Ors.10 that even if it is apparent from the plaint averment only, that suit is barred by limitation, it can still be tried as a preliminary issue even in the absence of plea of limitation raised by the Defendants.

It was observed in Ramesh Desai Case11 that the starting point of limitation has to be ascertained on facts in each case. A plea of limitation cannot be decided as an abstract principle of lawdivorced from the facts for rejection of the plaint Under Order VII, Rule 11(d) of the Code. As mentioned above, a mixed question of law and facts cannot be decided as a preliminary issue; therefore such questions of limitation are not to be determined preliminarily. The same has been reaffirmed by the Apex Court in the case of Satti Paradesi Samadhi and Pillayar Temple vs. M. Sankuntala (Dead) through Legal Representatives and Ors.12, where it has observed that issue of limitation requiring an inquiry into the facts, cannot be tried as a preliminary issue and has restated that the mixed questions of law and facts cannot be decided as a preliminary issue.

Thereforewith respect to question regarding limitation the court is open to decide it as a preliminary issue if it is purely a question of law and not a mixed question of law and fact by recording evidence.

Notes

1Section 3, Limitation Act, 1963
2Rule 11(d), Order VII, Civil Procedure Code, 1908
3Rule 2, order XIV, Civil Procedure Code, 1908
4Section 64, Civil Procedure Code (Amendment) Act, 1976
5Rule 2, Order XIV, Civil procedure Code, 1908 ( Prior to 1976 Amendment)
6AIR 1964 SC 497
71979 M.P.L.J. 736
8Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta and Ors., (2006) 5 SCC 638
9AIR 2019 SC 5125
10(2005) 6 SCC 614
11Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta and Ors (Supra)
12(2015) 5 SCC 674

THE JUDICIAL INTERPRETATION OF SAROD RULES

In a recent decision rendered by the Hon’ble Delhi High Court in IRB Ahmedabad Vadodara super express Toll way Private Limited vs. National Highways Authority of India, the Hon’ble High court interpreted arbitration rules of the Society for affordable redressal of disputes (herein after referred to as “SAROD”) pertaining to a dispute between two nominated arbitrators regarding appointment of the presiding arbitrator. The Hon’ble court also returned findings as to when a petition under Section 11(6)(b) of the Act1 be filed in the High Court.

FACTS OF THE CASE

IRB Ahmedabad Vadodara super express Toll way Private Limited (herein after referred to as the “Petitioner”)entered into an agreement with the National Highways Authority of India(herein after referred to as the “Respondent”) for conversion of NH-8 between Ahmedabad and Vadodara into a six-lane highway. In the initial agreement, it was agreed upon between the parties that any dispute arising between them shall be resolved by way of arbitration, which was to be governed by rules of arbitration framed by International Centre for Alternative Disputes Resolution. On 14.07.2014, both the parties entered into a supplementary agreement, whereby, it was agreed upon that in case of any dispute, the arbitration shall be governed by the arbitration rules framed by SAROD and the appointment of presiding arbitrator shall be governed by Rule 11.2 of the SAROD rules2 , and thus the earlier provisions in the main agreement were modified accordingly. In 2019, when disputes arose between the parties, the Petitioner invoked arbitration and both parties nominated one arbitrator each. However, when both the nominated arbitrators failed to appoint the presiding arbitrator, the Petitioner filed the petition under Section 11(6) (b) of the Actby urging that the procedure agreed upon between the parties for appointment of the presiding arbitrator had failed.

ARGUMENTS ADVANCED

The contentions raised by the Petitioner were three-fold; first, that since the supplementary agreement specifically provides for the appointment of the presiding arbitrator in accordance with Rule 11.23, the Respondent cannot resort to any other rule, to enable the Governing Body to make such an appointment, secondly, that since the procedure assented to by both the parties for the appointment of the presiding arbitrator had failed, there was no other alternative, than to invoke Section 11(6) (b) of the Act4 , thirdly, that since the procedure consented to, for appointment of the presiding arbitrator has stalled, the presiding arbitrator need not be from the SAROD panel, as the Governing Body has key officials as employees of the Respondent and the earlier panel having 177 names from all fields has been curtailed now to just 33, out of which just 4 arbitrators were legally trained.

Per contra, the Respondent argued that the rules should be construed harmoniously and Rule 11.25 cannot be read in isolation from the other rules and since the procedure prescribed in Rule 11.26 had yielded no result, it was appropriate to invoke Rule 11.57 that provides for the Governing Body to appoint the presiding arbitrator and since the Governing Body was yet to do so, the procedure agreed upon for the appointment of the presiding arbitrator had not yet failed and thus, the petition was premature and warranted dismissal. The Respondent assured the court that the procedure that is in place to enable the Governing Body to make the appointment is free from any partiality and is done by way of draw of lots and moreover, the apprehensions of bias raised by the Petitioner were baseless, since, the reduction in the number of arbitrators on the panel was on account of their terms of empanelment coming to an end on 30.05.2020 and not in any manner intentional.

FINDINGS

The Hon’ble High Court agreed with the argument raised by the Respondent, to hold that in general, the Rules had to be read conjointly, meaning thereby, that Rule 11.28 had to be read in coherence with Rule 11.59 and the two cannot be said to be independent of each other. However, the court further held that each petition would have to be decided in its own facts and circumstances, and since in the instant case, in the supplementary agreement, the parties specifically and explicitly confined the procedure of appointment of the presiding arbitrator exclusively to Rule 11.210 , no resort could be made to Rule 11.511 and thus, the Governing Body12 could not make the appointment. Furthermore, the court also held that since only Rule 11.2 was applicable in the instant case, and the procedure prescribed therein had admittedly flunked, the petition could not be said to be premature and filing of the said petition was the only resort available to the petitioner. In holding this, the Hon’ble High Court placed reliance upon the judgments of the Hon’ble apex court in Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Limited13, National Highways Authority of India vs. Bumihiway D.D.B Ltd14 and Central Organisation for Railway Electrification vs. ECI-SPIC-SMO MCML15. Lastly, the Hon’ble High court held that since the procedure agreed upon for the appointment of the presiding arbitrator had failed, there is no reason to restrict the appointment to an arbitrator from the present panel maintained by SAROD. The court held that since the number of arbitrators on the panel had been drastically reduced from 177 to 33, that too with only four members having legal training, the choice for the appointment of the presiding arbitrator cannot be restricted to the 33 members on the panel and thus, the appointment be made of a person from legal background from the erstwhile panel of 177 arbitrators maintained by SAROD. In holding this, the court emphatically placed reliance upon the decision of a coordinate bench of the Delhi High Court in Bernard Ingenieure ZT-GMBH vs. IRCON International Ltd16 and a judgment of the Supreme Court in Perkins Eastman Architects DPC & Another vs. HSCC(India) Limited17.

ANALYSIS OF THE FINDINGS

The Judgment of the Hon’ble Delhi High Court in the instant case is ambiguous to say the least. On one hand the court accepts the arguments advanced by the Respondent, to go on to hold that Rule 11.218 and Rule 11.519 have to be read concertedly, leading to the inference that once the nominated arbitrators fail to reach a consensus on the appointment of the presiding arbitrator, the Governing Body shall have the authority to make such appointment by virtue of Rule 11.520, despite the absence of such direct stipulation in the said rule. However, on the other hand, on an application of the said principle to the instant case, the court holds that since the parties had categorically agreed to make only Rule 11.221 applicable to the appointment of the presiding arbitrator, Rule 11.522 shall have no application at all. These findings, are not only self-contradictory, but also lay down a bad precedent that says that even if otherwise, a set of rules or a particular statute is to be read as a whole in order for its application, if two parties agree to make just one rule/section applicable to their agreement,they can exclude the other provisions at their whim. This is not only against the settled position of law, but also does not fare well with the logic of a prudent man. Furthermore, the Hon’ble court went on to hold that the appointment of the presiding arbitrator should be done from the panel earlier maintained by the SAROD having 177 members and not from the present panel. This finding by the court only leads to the conclusion that the agreement between the parties, whereby they agreed to appoint the presiding arbitrator from amongst the panel maintained by SAROD has been rendered meaningless and the Hon’ble High Court chose the presiding arbitrator from amongst members whose terms of empanelment had already expired, thus eventually changing the terms of appointment unilaterally and against the decision rendered by the Supreme Court in Perkins Eastman23. On a bare perusal of the said findings, it becomes apparent that the Hon’ble court was in the throes of a legal conflict, torn between deciding on principles and eventually bowing to the exigencies as depicted by the Petitioner.

CONCLUSION

The judgment rendered by the Hon’ble High court in the instant case would sooner or later need reconsideration, as the precedent that it sets would lead to a chaotic end to many more cases. The case law referred to by the Hon’ble court has not been properly appreciated and the interpretation of the SAROD rules is vague and delusionary. At a time when the field of arbitration is craving more than ever for seminal judgments to enhance its scope, the judgment in the instant case can be safely termed as obscure.

Notes

1Section 11(6) (b) of the Arbitration and Conciliation Act, 1996,
Where, under an appointment procedure agreed upon by the parties:-

  • (a) A party fails to act as required under that procedure; or
  • (b) The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
  • (c) A person, including an institution, fails to perform any function entrusted to him or it under that procedure,

A party request [the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court] to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
2Rule 11.2 of SAROD- In all cases of disputes claimed for more than Rs. 3 Crores, the tribunal shall consist of add number of Arbitrators to be nominated by the parties. The presiding Arbitrator shall be appointed by the Arbitrators nominated by the parties from amongst the panel maintained by SAROD. For deciding the Presiding Arbitrator, a draw of lots can be carried out from amongst the names suggested by the Arbitrators nominated by the parties. The eligibility criteria for empanelment of Arbitrators will be decided by the Governing Body.
3Ibid
4The Arbitration and Conciliation Act, 1996.
5Supra 2.
6Ibid.
7Rule 11.5 of SAROD- In the event of any party failing to appoint Arbitrator within 30 days of receipt the notice of Arbitration, the Governing Body shall appoint the Arbitrator or Presiding Arbitrator as the case may be by draw of lots.
8Supra 2.
9Supra 7.
10Supra 2.
11Supra 7.
12“Governing Body” means Governing Body of SAROD as defined in Article 9 of Memorandum of Association.
13Voestalpine Schienen GMBH vs Delhi Metro Rail Corporation Limited, (2017) 4 SCC 665.
14National Highways Authority of India vs Bumihiway D.D.B Ltd, (2006) 10 SCC 763
15Central Organisation for Railway Electrification vs ECI-SPIC-SMO MCML, 2019 SCC Online SC 1635
16>Bernard Ingenieure ZT-GMBH vs IRCON International Ltd., 2018 SCC Online Delhi 7941.
17Perkins Eastman Architects DPC & Another vs HSCC (India) Limited, 2019 SCC Online 1517.
18Supra 2.
19Supra 7.
20Supra 7.
21Supra 2.
22Supra 7.
23Perkins Eastman Architects DPC & Another vs HSCC (India) Limited, 2019 SCC Online 1517.