Bhatia International v. Bulk Trading S.A. & Anr

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12Model Law provides that the law, except Articles 8, 9, 35 and 36 ofthe Model Law, would apply only if the Arbitration takes place in theterritory of the State. Mr. Sen submits that Article 9 of the UNCITRALModel Law permits a party to request a Court for interim measureeven if the arbitration is not in the territory of the State. He submitsthat whilst framing the said Act the Legislature has purposely notadopted Article 1(2) of the UNCITRAL Model Law. He submits that thisclearly shows the intention of the Legislature that they did not wantPart I to apply to arbitrations which take place outside India.5. Mr. Sen points out that Section 2(f) of the said Act defines an"international commercial arbitration". Mr. Sen submits that aninternational commercial arbitration could take place either in India oroutside India. He submits that if the international commercialarbitration takes place out of India then Part I of the said Act wouldnot apply. He submits that Part II of the said Act applies to foreignawards.6. Mr. Sen fairly draws the attention of this Court to sub-sections(3), (4) and (5) of Section 2, which read as follows:"2(3) This Part shall not affect any other law for the timebeing in force by virtue of which certain disputes may notbe submitted to arbitration.(4) This Part except sub-section (1) of section 40, sections41 and 43 shall apply to every arbitration under any otherenactment for the time being in force, as if the arbitrationwere pursuant to an arbitration agreement and as if thatother enactment were an arbitration agreement except inso far as the provisions of this Part are inconsistent withthat other enactment or with any rules made thereunder.(5) Subject to the provisions of sub-section (4), and savein so far as is otherwise provided by any law for the timebeing in force or in any agreement in force between Indiaand any other country or countries, this Part shall apply toall arbitrations and to all proceedings relating thereto."Mr. Sen submits that sub-sections (3), (4) and (5) of Section 2 wouldnecessarily only apply to arbitration which take place in India. Hesubmits that, therefore, even though the sub-section (4) of Section 2uses the words "every arbitration" and sub-section (5) of Section 2uses the words "all arbitrations and to all proceedings relatingthereto", they must necessarily refer only to arbitrations which takeplace in India. He submits that otherwise there would be a conflictbetween sub section (2) on one hand and sub sections (4) and/or (5)on the other. Mr. Sen submits that if it is held that Part I applies to allarbitrations i.e. even to arbitrations whose place of arbitration is not inIndia, then Sub section (2) of Section 2 would become redundantand/or otiose.7. Mr. Sen submits that in this matter arbitration is being held inParis i.e. out of India. He submits that to such arbitrations Part I doesnot apply. He submits that Sections 9 and 17 fall in Part I. He submitsthat Sections 9 and 17 would not apply and cannot be used in caseswhere the place of arbitration is not in India.8. Mr. Sen submits out that Part II deals with enforcement offoreign awards and makes elaborate provisions in respect thereof. Hepoints out that in Part II there is no provision similar to Sections 9 and17. He submits that the Legislature, whilst providing for foreignawards, has purposely omitted to make any provision for interimmeasures either by the Court or by arbitral tribunal. He submits thatthe reason for this is obvious. He submits that in cases, wherearbitrations take place outside India they would be governed by the