Sulamérica's Case And The Three-Stage Inquiry To Determine The Law Of Arbitration: Recent Developments & The Divergent Indian Approach (Part I)
4 years, 11 months ago

Sulamérica's Case And The Three-Stage Inquiry To Determine The Law Of Arbitration: Recent Developments & The Divergent Indian Approach (Part I)

Live Law  

Introduction The Indian jurisprudence on the choice of the law of arbitration has evolved through various judicial pronouncements of the Supreme Court of India. The Supreme Court of India has cited approvingly in BALCO's Case and several later judgments, the judgments delivered by Lord Justice Longmore in C v. D and Mr. Justice Cooke in Sulamérica Cia Nacional de Seguros SA v. Enesa Engelharia SA, to affirm the view that where there is no express choice of the law for the arbitration agreement, the law with which the agreement to arbitrate has its closest and most real connection is the law of the seat of arbitration. It is noteworthy that in the appeal arising out of the judgment of Mr. Justice Cooke, the English Court of Appeal in Sulamérica's Case had revisited the earlier judgments including Longmore LJ's judgment in C v. D and struck a divergent chord and laid down a different approach to determine the law of arbitration. Mr. Justice Cooke's Judgment In the case before the High Court of Justice, Queen's Bench Division, Commercial Court in Sulamérica Cia Nacional de Seguros SA and Anr v Enesa Engenharia SA and Ors, Mr Justice Cooke relied on Court of Appeal's Judgment in C v. D and his own judgment in Shashoua v Sharma and held that choice of the seat of arbitration determines the curial law and the supervisory jurisdiction of the courts of the country where the seat is located. Court of Appeal Lord Justice Moore Bick, who authored the leading judgment of the English Court of Appeal in Sulamérica's Case, traces the shift in the legal position in English Law and expressed his reservations about the reasoning behind Longmore LJ's above observations in C v. D. Moore Bick LJ observed that it was unnecessary for the court in C v D to reach a decision on the proper law of the arbitration agreement.

Law England Justice Arbitration Court Indian Case Agreement Choice Ica Bick Part I Sulamérica Three Stage Enquiry Justice Cooke Moore Bick Moore Bick Lj Proper Law C V D  inquiry  case  indian  bick  arbitration  developments  sulaméricas  v  threestage  justice  recent  determine  law  lj  divergent  court  choice  agreement

History of this topic

International Commercial Arbitration | How To Determine Law Governing Arbitration Agreement? Supreme Court Discusses Tests
2 weeks ago

International Commercial Arbitration | How To Determine Law Governing Arbitration Agreement? Supreme Court Discusses Tests

Live Law  

In a significant judgment relating to International Commercial Arbitration, the Supreme Court today ruled that in the absence of an express law governing the arbitration agreement, the applicable law should be determined based on the parties' intentions, with a strong presumption in favor of the law governing the main contract. After a dispute arose between the parties, the Petitioner sought …

[Seat vs. Venue] Designated “Seat” Of Arbitration Has Exclusive Jurisdiction: Calcutta High Court Reiterates
2 months, 2 weeks ago

[Seat vs. Venue] Designated “Seat” Of Arbitration Has Exclusive Jurisdiction: Calcutta High Court Reiterates

Live Law  

The Calcutta High Court bench of Justice Soumen Sen and Justice Biswaroop Chowdhury has held that once the “seat” of arbitration is designated in an agreement, it is to be treated as the exclusive jurisdiction for all arbitration proceedings. The Court held that Mumbai would be both the seat and the venue of arbitration, and that Bombay High Court or …

Delhi HC Allows Invocation Of Arbitration Clause After 10 Yrs, Says That Scope Of S.11(6) Plea Is Limited To Ascertaining Existence Of Agreement
Trending News
3 months, 4 weeks ago

Delhi HC Allows Invocation Of Arbitration Clause After 10 Yrs, Says That Scope Of S.11(6) Plea Is Limited To Ascertaining Existence Of Agreement

Live Law  

The Delhi High Court Bench of Justice Sachin Datta has held that the scope of the present proceedings is confined to ascertaining the existence of the arbitration agreement. Observation of the court: The court held that the scope of the present proceedings is confined to ascertaining the existence of the arbitration agreement. Then, the court held that since the existence …

Arbitration Weekly Round-Up [25th November To 1st December, 2024]
3 months, 4 weeks ago

Arbitration Weekly Round-Up [25th November To 1st December, 2024]

Live Law  

Supreme Court S.29A Arbitration | 'Sufficient Cause' To Extend Time For Award Should Be Interpreted To Facilitate Effective Dispute Resolution : Supreme Court Case Title: M/S AJAY PROTECH PVT. 34078 of 2023 The Bombay High Court bench of Justice Arif S. Doctor has held that Section 9 of the A&C Act is not the correct mechanism to obtain relief against …

Arbitration Weekly Round-Up: 4th November To 10th November 2024
4 months, 3 weeks ago

Arbitration Weekly Round-Up: 4th November To 10th November 2024

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Supreme Court Government Entity Can't Be Given Differential Treatment While Staying Operation Of Arbitral Award : Supreme Court Case Title: International Seaport Dredging Pvt Ltd Versus Kamarajar Port Limited, Case Number- Civil Appeal No 12097 of 2024 Recently, the Supreme Court disapproved of a High Court's decision to exempt a government entity from depositing other amounts in addition to the …

Determining 'Seat' In International Arbitration : Supreme Court Takes Shift From 'Closest Connection Test', Says Express Designation Of Place Matters
4 months, 3 weeks ago

Determining 'Seat' In International Arbitration : Supreme Court Takes Shift From 'Closest Connection Test', Says Express Designation Of Place Matters

Live Law  

In a key ruling on International Commercial Arbitration, the Supreme Court held that when an arbitration agreement grants non-exclusive jurisdiction to a foreign court, that court is considered the "seat of arbitration." Taking a shift from the 'Close Connection Test' to determine the seat of the arbitration, the Court observed that “the more appropriate criterion for determining the seat of …

Arbitration now preferred method for commercial justice: CJI Chandrachud
9 months, 3 weeks ago

Arbitration now preferred method for commercial justice: CJI Chandrachud

Hindustan Times  

Chief Justice of India Dhananjaya Y Chandrachud has underscored the pivotal role of arbitration in the realm of commercial justice, asserting that it is no longer an alternative but a preferred method of dispute resolution. Delivering his address at the Supreme Court of the United Kingdom on Thursday evening, the CJI highlighted the evolution of arbitration from a supplementary dispute …

Seat Of Arbitration Inferred By Contractual Clauses & Conduct Of Parties, Venue Is Considered Seat In Absence Of Other Indications: Delhi High Court
1 year, 1 month ago

Seat Of Arbitration Inferred By Contractual Clauses & Conduct Of Parties, Venue Is Considered Seat In Absence Of Other Indications: Delhi High Court

Live Law  

The Delhi High Court single bench of Justice Anup Jairam Bhambhani held that mere expression of "place of arbitration" does not automatically indicate the seat and the determination of the seat should be inferred from other clauses in the agreement and the conduct of the parties. Ltd filed an application under Section 11 of the Arbitration & Conciliation Act 1996 …

Right Of A Party To Nominate 2/3rd Of The Arbitral Tribunal Violates Counter-Balancing: Delhi High Court Reiterates
1 year, 3 months ago

Right Of A Party To Nominate 2/3rd Of The Arbitral Tribunal Violates Counter-Balancing: Delhi High Court Reiterates

Live Law  

The High Court of Delhi has held that an arbitration clause that confers on a party the right to nominate 2/3rd of arbitral tribunal violates the principles of 'counter-balancing' as sought to be achieved by the Supreme Court in the landmark judgment in Perkins. That the Supreme Court in CORE has upheld the validity of a similarly worded arbitration clause …

Top 10 Arbitration Judgments [January To September 2023]
1 year, 5 months ago

Top 10 Arbitration Judgments [January To September 2023]

Live Law  

In recent times, several noteworthy judgments have been rendered by the Indian Courts in matters relating to the law of arbitration in India. Prior to the 2019 amendment, Section 34 of the Arbitration Act read that "an arbitral award could be set aside by the Court only if the the party making the application furnishes proof…". In conclusion, the Supreme …

Judiciary must step in to ensure an effective arbitration ecosystem: CJI
2 years, 1 month ago

Judiciary must step in to ensure an effective arbitration ecosystem: CJI

Hindustan Times  

The judiciary has to play an important role in ensuring an effective arbitration ecosystem by stepping in to protect the independence and impartiality of arbitral proceedings, Chief Justice of India DY Chandrachud said on Thursday, while also stressing on the need for a “gender-diverse arbitral pool” to bring experiential learning to the entire process. Not least of those interventions is …

Arbitration Cases Weekly Round-Up: 25 December To 31 December, 2022
2 years, 3 months ago

Arbitration Cases Weekly Round-Up: 25 December To 31 December, 2022

Live Law  

Bombay High Court: Correspondence Between Parties Cannot Overrule Clear Intention Under Agreement Providing For Optional Arbitration: Bombay High Court Case Title: GTL Infrastructure Ltd. versus Vodafone India Ltd. Arbitration Can Be Invoked Against Party Deleted From Section 9 Application: Bombay High Court Case Title: Deccan Paper Mills Co. Ltd. versus M/s. Calcutta High Court: Disclosure Of Impartiality By Arbitrator Appointed …

Arbitration Cases Weekly Round-Up: 27 November To 3 December, 2022
2 years, 3 months ago

Arbitration Cases Weekly Round-Up: 27 November To 3 December, 2022

Live Law  

Bombay High Court: Participation In Arbitral Proceedings, Does Not Disentitle Party To Challenge Award On Ground Of Unilateral Appointment Of Arbitrator: Bombay High Court Case Title: Naresh Kanayalal Rajwani & Ors. The Bombay High Court has ruled that merely because a party participated in the arbitration proceedings, it is not disentitled from challenging the arbitral award on the ground that …

Arbitration Cases Weekly Round-Up: 30 October To 5 November, 2022
2 years, 4 months ago

Arbitration Cases Weekly Round-Up: 30 October To 5 November, 2022

Live Law  

Supreme Court: Issue Of Arbitrability Should Be Left To Arbitrator Unless On The Face It Is Found That Dispute Is Non- Arbitrable: Supreme Court Case Title: VGP Marine Kingdom Pvt Ltd versus Kay Ellen Arnold The Supreme Court reiterated that while considering application under Section 11 of the Arbitration and Conciliation Act, the dispute with respect to the arbitrability should …

There Cannot Be Two Arbitration Proceedings With Respect To Same Contract/Transaction: Supreme Court
2 years, 8 months ago

There Cannot Be Two Arbitration Proceedings With Respect To Same Contract/Transaction: Supreme Court

Live Law  

Observing that it is of the "firm opinion that there cannot be two arbitration proceedings with respect to the same contract/transaction", the Supreme Court stated that when a dispute has earlier been referred to arbitration and an award was passed on the claims made, then it is "rightful" to refuse to refer to arbitration- in exercise of Section 11 of …

Supreme Court Quarterly Digest 2022- ARBITRATION (Jan - Mar)
2 years, 10 months ago

Supreme Court Quarterly Digest 2022- ARBITRATION (Jan - Mar)

Live Law  

Arbitration Act, 1940; Section 30, 33 - Scope of interference by courts - A Court does not sit in appeal over an Award passed by an Arbitrator and the only grounds on which it can be challenged are those that have been specified in Sections 30 and 33 of the Arbitration Act, namely, when there is an error on the …

Difference Between 'Seat' & 'Venue' Of Arbitration: Allahabad High Court Explains
3 years, 1 month ago

Difference Between 'Seat' & 'Venue' Of Arbitration: Allahabad High Court Explains

Live Law  

The Allahabad High Court while adjudicating upon a petition filed under Article 227 of the Constitution of India discussed the difference between 'Seat' and 'Venue' of Arbitration in the light of several judicial precedents.Justice Siddharth clarified,"The term "seat" is of utmost importance as it connotes the situs of arbitration. Thus, in the absence of the specified "Seat of Arbitration" in …

Arbitration Court Reckoner : March 2021
3 years, 10 months ago

Arbitration Court Reckoner : March 2021

Live Law  

By way of the present column, an attempt is made to briefly review the salutary judgments pronounced by the Courts in the month of March 2021 under the Arbitration & Conciliation Act, 1996. Ltd., Supreme Court held that period of limitation for filing an application under S. 11 would be governed by Article 137 of the First Schedule of the …

Arbitration Court Reckoner : January 2021
4 years, 1 month ago

Arbitration Court Reckoner : January 2021

Live Law  

By way of the present column, an attempt is made to briefly review the salutary judgments pronounced by the Courts in the month of January 2021 under the Arbitration & Conciliation Act, 1996. Merely because the Section 9 proceedings entails disputed facts does not lead to dismissal of a Section 9 application/petition In Luxe Passion Private Limited v Freedom Roost, …

Arbitration Court Reckoner : November & December 2020
4 years, 2 months ago

Arbitration Court Reckoner : November & December 2020

Live Law  

Section 2 & Section 2 Concept of emergency arbitration is not outside the scope or contrary to Part-1 of the Act In Future Retail Ltd. v Amazon.com Investment Holdings LLC & Ors., High Court of Delhi was dealing with a case where the international commercial arbitration was seated in India but was to be conducted in accordance with SIAC Rules …

Arbitration Court Reckoner: September 2020
4 years, 5 months ago

Arbitration Court Reckoner: September 2020

Live Law  

By way of the present column, an attempt is made to briefly review the salutary judgments pronounced by the Courts in the month of September 2020 under the Arbitration & Conciliation Act, 1996. Chaitanya Construction Company v Delhi Jal Board High Court of Delhi took note of the fact that S. 7 of the Act itself provides that the arbitration …

Arbitration Court Reckoner : August 2020
4 years, 6 months ago

Arbitration Court Reckoner : August 2020

Live Law  

By way of the present column, an attempt is made to briefly review the salutary judgments pronounced by the Courts in the month of August 2020 under the Arbitration & Conciliation Act, 1996. Test of Emergent Necessity for grant of relief under S. 9 In Avantha Holdings Ltd. v Vistra ITC India Ltd. High Court of Delhi held that the …

Arbitration: Court Reckoner - July 2020
4 years, 7 months ago

Arbitration: Court Reckoner - July 2020

Live Law  

By way of the present column, an attempt is made to briefly review the salutary judgments pronounced by the Courts in the month of July 2020 under the Arbitration & Conciliation Act, 1996. v Bajaj Finance Ltd., High Court of Delhi while dealing with a petition seeking restraint on sale of pledged shares on the ground that the fall in …

Arbitration: Court Reckoner [June 2020]
4 years, 8 months ago

Arbitration: Court Reckoner [June 2020]

Live Law  

By way of the present column, an attempt is made to briefly review the salutary judgments pronounced by the Courts in the month of June 2020 under the Arbitration & Conciliation Act, 1996. In Rashmi Cement Ltd. v World Metals & Alloys & Anr., High Court of Delhi while dealing with a S. 9 Petition seeking certain interim measures in …

Sulamérica's Case And The Three-Stage Inquiry To Determine The Law Of Arbitration: Recent Developments & The Divergent Indian Approach (Part II)
4 years, 11 months ago

Sulamérica's Case And The Three-Stage Inquiry To Determine The Law Of Arbitration: Recent Developments & The Divergent Indian Approach (Part II)

Live Law  

This part is in continuation of Part I, where the author discussed the Court of Appeal's judgment in Sulamérica's Case and analysed the two distinct approaches of Mr. Justice Cooke and the Court of Appeal to determine the law of arbitration. Other Cases following Sulamérica's Case U.K. Cases Following the Court of Appeal's Judgment in Sul América's Case, in Arsanovia's …

Courts Cannot Recast The Terms Of Arbitration Agreement, Reiterates Delhi HC [Read Judgment]
5 years, 8 months ago

Courts Cannot Recast The Terms Of Arbitration Agreement, Reiterates Delhi HC [Read Judgment]

Live Law  

The Delhi High Court has reiterated that court cannot recast the terms of an arbitration agreement entered into between parties and should rather make efforts to ensure that the parties adhere to the choice of the Arbitrator or to the mechanism for constituting the Arbitral Tribunal as envisaged by the Arbitration Agreement. Justice Sanjeev Narula observed, "The Court while exercising …

Court Can Appoint Independent Arbitrator Only After Resorting To The Procedure In Arbitration Agreement: SC [Read Judgment]
6 years ago

Court Can Appoint Independent Arbitrator Only After Resorting To The Procedure In Arbitration Agreement: SC [Read Judgment]

Live Law  

The Supreme Court has observed that the High Court, while dealing with an application under Section 11 of the Arbitration and Conciliation Act, seeking appointment of an 'independent Arbitrator', should first resort to the mechanism in appointment of an arbitrator as per the terms of contract as agreed by the parties. One of the issue in a batch of appeals …

SC Larger Bench To Decide Basis And Principle To Decide the Place Of ‘Seat’ of Arbitration [Read Judgment]
6 years, 10 months ago

SC Larger Bench To Decide Basis And Principle To Decide the Place Of ‘Seat’ of Arbitration [Read Judgment]

Live Law  

The Supreme Court, in Union of India vs. Hardy Exploration and Production, has referred the question as to when the arbitration agreement specifies the “venue” for holding the arbitration sittings by the arbitrators but does not specify the “seat”, then on what basis and by which principle, the parties have to decide the place of “seat” which has a material …

How Not So Carefully Drafted One-Side Clause Can Backfire! Delhi HC Makes 2015 Amendments To Arbitration Act Applicable To Proceedings Initiated Under The 1996 Act
7 years, 11 months ago

How Not So Carefully Drafted One-Side Clause Can Backfire! Delhi HC Makes 2015 Amendments To Arbitration Act Applicable To Proceedings Initiated Under The 1996 Act

Live Law  

Yesterday on 11th April 2017, Justice S. Muralidhar in Ratna Infrastructure Projects Pvt. The Court interpreted the words “unless the parties otherwise agree” as used in the Section 26 of the Amendment Act in light of the standard agreement terms and held that the amendment act shall be applicable to the arbitral proceedings initiated before 23 October 2015, since the …

Chief Justice Can Appoint Independent Arbitrator Though An Arbitrator Is Named In Agreement: SC [Read Judgment]
8 years ago

Chief Justice Can Appoint Independent Arbitrator Though An Arbitrator Is Named In Agreement: SC [Read Judgment]

Live Law  

The Supreme Court, in Union of India vs. Besco Ltd, has held that even if an arbitrator is specified in the agreement for arbitration, the chief justice or the designated judge is free to appoint an independent arbitrator, having due regard to the qualification, if circumstances so warrant.A bench comprising Justice Kurian Joseph and Justice R Banumathi upheld a high …

Chief Justice Can Appoint Independent Arbitrator Though An Arbitrator Is Named In Agreement: SC [Read Judgment]
8 years ago

Chief Justice Can Appoint Independent Arbitrator Though An Arbitrator Is Named In Agreement: SC [Read Judgment]

Live Law  

The Supreme Court, in Union of India vs. Besco Ltd, has held that even if an arbitrator is specified in the agreement for arbitration, the chief justice or the designated judge is free to appoint an independent arbitrator, having due regard to the qualification, if circumstances so warrant.A bench comprising Justice Kurian Joseph and Justice R Banumathi upheld a high …

India Gearing Up For A Healthy And Conducive Arbitration Environment
8 years, 1 month ago

India Gearing Up For A Healthy And Conducive Arbitration Environment

Live Law  

Supreme Court Upholds "Neutrality Of Arbitrator" In Public Sector Contracts In the recent judgment of M/s. Voestalpine Schienen Gmbh vs. Delhi Metro Rail Corporation Ltd., the Supreme Court of India while upholding the concept of 'neutrality of arbitrators' envisaged under the amended Section 12 of the Arbitration and Conciliation Act 1996, has given. Voestalpine Schienen Gmbh vs. Delhi Metro Rail …

India Gearing Up For A Healthy And Conducive Arbitration Environment
8 years, 1 month ago

India Gearing Up For A Healthy And Conducive Arbitration Environment

Live Law  

Supreme Court Upholds "Neutrality Of Arbitrator" In Public Sector Contracts In the recent judgment of M/s. Voestalpine Schienen Gmbh vs. Delhi Metro Rail Corporation Ltd., the Supreme Court of India while upholding the concept of 'neutrality of arbitrators' envisaged under the amended Section 12 of the Arbitration and Conciliation Act 1996, has given. Voestalpine Schienen Gmbh vs. Delhi Metro Rail …

Mere choosing of the juridical seat of Arbitration attracts the law applicable to such location: Supreme Court [Read Judgment]
8 years, 10 months ago

Mere choosing of the juridical seat of Arbitration attracts the law applicable to such location: Supreme Court [Read Judgment]

Live Law  

Where the parties choose a juridical seat of Arbitration outside India and provide that the law which governs Arbitration will be a law other than Indian law, Part I of the Act would not have any application and, therefore, the award debtor would not be entitled to challenge the award by raising objections under Section 34 before a Court in …

Contract to be interpreted in the way parties wanted and intended it to be : Supreme Court [Read Judgment]
9 years, 2 months ago

Contract to be interpreted in the way parties wanted and intended it to be : Supreme Court [Read Judgment]

Live Law  

Supreme Court has observed that the terms of the contract, especially Arbitration agreements will have to be understood in the way the parties wanted and intended them to be. Apex Court Bench comprising of Justices Anil R. Dave, Kurian Joseph and Amitava Roy made this observation in Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc.In Bharat Aluminium Company v. …

Amendment of Indian Arbitration Act: A Sigh of Relief for the Indian Arbitration Professionals and Clients!
9 years, 5 months ago

Amendment of Indian Arbitration Act: A Sigh of Relief for the Indian Arbitration Professionals and Clients!

Live Law  

The Indian arbitration scenario had always been abysmal. If the way in which arbitration proceedings were conducted under the 1940 Arbitration Act had made lawyers laugh and legal philosophers weep in view of unending prolixity, at every stage providing a legal trap to the unwary, the attempt to correct it under the 1996 Arbitration Act also failed. With a view …

Amendment of Indian Arbitration Act: A Sigh of Relief for the Indian Arbitration Professionals and Clients!
9 years, 5 months ago

Amendment of Indian Arbitration Act: A Sigh of Relief for the Indian Arbitration Professionals and Clients!

Live Law  

The Indian arbitration scenario had always been abysmal. If the way in which arbitration proceedings were conducted under the 1940 Arbitration Act had made lawyers laugh and legal philosophers weep in view of unending prolixity, at every stage providing a legal trap to the unwary, the attempt to correct it under the 1996 Arbitration Act also failed. With a view …

Though overruled, Bhatia International held to be applicable to pre BALCO arbitration agreements : SC
10 years ago

Though overruled, Bhatia International held to be applicable to pre BALCO arbitration agreements : SC

Live Law  

Before, reading this coverage, an important question needs to be pondered upon. Can a bench apply an overruled decision to a matter before it in absence of the overruling decision banning its retrospective non-application?A two judge bench of the Supreme Court comprising of Justices Dipak. A two judge bench of the Supreme Court comprising of Justices Dipak Misra & P.C.Pant …

Though overruled, Bhatia International held to be applicable to pre BALCO arbitration agreements : SC
10 years ago

Though overruled, Bhatia International held to be applicable to pre BALCO arbitration agreements : SC

Live Law  

Before, reading this coverage, an important question needs to be pondered upon. Can a bench apply an overruled decision to a matter before it in absence of the overruling decision banning its retrospective non-application?A two judge bench of the Supreme Court comprising of Justices Dipak. A two judge bench of the Supreme Court comprising of Justices Dipak Misra & P.C.Pant …

Supreme Court upholds Plea by Reliance and BG Group; Allows Arbitration in London
10 years, 10 months ago

Supreme Court upholds Plea by Reliance and BG Group; Allows Arbitration in London

Live Law  

A Supreme Court Bench of Justice S.S. Nijjar and Justice A.K. Sikri today, set aside the Delhi High Court order and allowed Reliance Industries Ltd. to go ahead with the arbitration in London over the row with the Centre on the Panna, Mukta and Tapti oil and gas fields. The dispute exists over reimbursement of royalties and taxes in the …

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