2025 INSC 352

Arb.Pet. No.48/2023 Page 1 of 26

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION PETITION NO.48 OF 2023

DISORTHO S.A.S. ..... PETITIONER(S)

VERSUS

MERIL LIFE SCIENCES PRIVATE LIMITED ..... RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, CJI.

Disortho S.A.S,

1

the petitioner before us, is a company

incorporated in Bogota, Colombia. The respondent, Meril Life Science

Private Limited,

2

is a company incorporated in Gujarat, India. Disortho

and Meril executed an International Exclusive Distributor Agreement,

3

dated 16

th

May 2016, for distribution of medical products in Colombia.

Later, disputes emerged between the parties.

2. Disortho has filed this petition under Section 11(6) of the Arbitration and

Conciliation Act, 1996

4

, for appointment of an arbitral panel in terms of

1

Hereinafter referred to as, “Disortho”.

2

Hereinafter referred to as, “Meril”.

3

Hereinafter referred to as, “Distributor Agreement”.

4

Hereinafter referred to as, “A&C Act”.

Arb.Pet. No.48/2023 Page 2 of 26

Clauses 16.5 and 18 of the Distributor Agreement. Meril has opposed

the petition on jurisdictional grounds, contending that these clauses do

not grant Indian Courts jurisdiction to appoint arbitrators. The clauses

16.5 and 18 read:

“16. Miscellaneous

16.5. This Agreement shall be governed by and construed in

accordance with the laws of lndia and all matter pertaining to this

agreement or the matters arising as a consequence of this

agreement with be subject to the jurisdiction of courts in Gujarat,

India.

18. Direct Settlement of Disputes

The Parties mutually agree and pact that any dispute,

controversy or claim arising during this Agreement related to

subscription, execution, termination, breach, as well as non-

contractual relationships, related to the clauses mentioned

above; They may be submitted to conciliation in accordance with

the Rules of Arbitration and Conciliation of the Chamber of

Commerce of Bogota DC., or instead. of this city, where the

Director of the Centre so determine.

Similarly, the Parties mutually agree and pact that if the dispute

or difference has not been settled in conciliation, or to the extent

that has not been resolved; it will be committed to Arbitration by

either party for final settlement in accordance with the Arbitration

and Conciliation Center of the Chamber of Bogota DC. The

Arbitral Tribunal shall consist of one (1) arbitrator in cases of

minor or no value E according to the Rules of Conciliation and

Arbitration Center of the Chamber of Commerce of Bogota DC.

Also, in the event of greater amount, the Court of conformity shall

comply with the Regulations of the Center for Conciliation and

Arbitration of the Chamber of Commerce of Bogota DC., With

three (3) arbitrators appointed by the Centre and by drawing lots.

The arbitration will take place in Bogota DC. On the premises of

Center for Conciliation and Arbitration of the Chamber of

Commerce of Bogota DC., or at the place where the Director of

the Centre as determined in this city. The award shall be in law

and standard will be applicable Colombian law governing the

mailer, Expenditure in the conciliation and arbitration proceedings

shall be borne equally.”

Arb.Pet. No.48/2023 Page 3 of 26

3. What initially appeared to be a straightforward question has, in fact,

become a vexed one, primarily for two salient reasons. First, there exists

a divergence of opinion, both internationally and domestically, on the

appropriate test to determine jurisdiction in a case of trans-border

arbitration. This divergence stems from the interaction between three

distinct legal systems which come into play when a dispute occurs: (i)

lex-contractus, the law governing the substantive contractual issues; (ii)

lex arbitri, the law governing the arbitration agreement and the

performance of this agreement; and (iii) lex-fori, the law governing the

procedural aspects of arbitration. These legal systems may either differ

or align, depending on the parties’ choices. Furthermore, there may be

internal splits within these legal systems, such as for lex arbitri.

5

Secondly, when contractual clauses conflict, as is the case here, the

resolution becomes legalistic and complicated.

4. In the interest of avoiding prolixity, we deem it unnecessary to separately

address each argument raised or delve into the extensive body of

jurisprudence surrounding the issue. It suffices to note that a similar,

though not in pari materia, question was examined by this Court in M/s.

Arif Azim Co. Ltd. v. M/s. Micromax Informatics Fze.

6

This judgment

5

Lex arbitri might be split into two components if the parties so desire – (i) law governing the

agreement to arbitrate or the proper law of arbitration and (ii) the law governing the arbitration. While

the former relates to validity, scope and interpretation of the arbitration agreement, the later refers to

the supervisory jurisdiction exercised by the courts. We will refer to this split later in this judgment.

6

(2024) INSC 850.

Arb.Pet. No.48/2023 Page 4 of 26

references earlier precedents of this Court on the subject, and we will

discuss these judgments subsequently.

5. We begin by referring to Redfern and Hunter’s Commentary on

International Arbitration.

7

Chapter 7, titled “Agreement to Arbitrate”,

emphasizes the cardinal importance of parties’ chosen law. It is stated

that the law governing the arbitration agreement sets the rules and

norms that determine the validity, scope, and interpretation of the

agreement. This chosen law assumes paramount significance when

disputes arise concerning the tribunal’s jurisdiction. For instance,

disputes related to actions in rem may not be arbitrable in India but

arbitrable in another jurisdiction. Additionally, it determines whether the

arbitration agreement extends to third parties, such as parent or sister

concerns.

8

Equally, it plays a key role in determining the validity of the

arbitration agreement itself—some national laws may render the

agreement void or unenforceable, thereby affecting the arbitrability of the

dispute, while others may uphold its enforceability. Finally, this law

serves as a guiding principle when the dispute resolution mechanism is

unclear, inconsistent or when conflicting dispute resolution clauses are

bundled together in the same agreement.

7

Blackaby KC, Nigel, Constantine Partasides, and Alan Redfern, Redfern and Hunter on International

Arbitration, 7th Edition (2022), Oxford University Press.

8

See the Group of Companies Doctrine, Cox and Kings Ltd. v. SAP India Pvt. Ltd. and Another, 2023

INSC 1051.

Arb.Pet. No.48/2023 Page 5 of 26

6. In our opinion, the law governing the arbitration may differ from both the

lex contractus and the lex fori.

9

This distinction was succinctly brought

out in the recent English High Court decision of Melford Capital

Partners (Holdings) LLP and Others v. Frederick John Wingfield

Digby.

10

This decision refers to the earlier decision of Paul Smith Ltd.

v. H&S International Holdings Inc.,

11

which dealt with two conflicting

clauses. One clause provided for resolution of disputes through ICC

arbitration, while the other designated the courts of England as having

exclusive jurisdiction. The conflict between these provisions was

resolved by the Steyn J. by adopted the following analysis:

“Fortunately, there is a simple and straight forward answer to the

suggestion that cll. 13 and 14 are inconsistent. Clause 13 is a

self-contained agreement providing for the resolution of disputes

by arbitration. Clause 14 specifies the lex arbitri the curial law or

the law governing the arbitration, which will apply to this particular

arbitration. The law governing the arbitration is not to be

confused with (1) the proper law of the contract, (2) the

proper law of the arbitration agreement, or (3) the procedural

rules which will apply in the arbitration. These three regimes

depend on the choice, express or presumed, of the parties.

In this case it is common ground that both the contract and the

arbitration agreement are governed by English law. The

procedural rules applicable to the arbitration are not rules derived

from English law. On the contrary, the procedural regime is the

comprehensive and sophisticated ICC rules which apply by virtue

of the parties' agreement.

What then is the law governing the arbitration? It is, as

Martin Hunter and Alan Redfern, International Commercial

Arbitration, p. 53, trenchantly explain, a body of rules which

sets a standard external to the arbitration agreement, and

the wishes of the parties, for the conduct of the arbitration.

The law governing the arbitration comprises the rules

9

This is assuming that the law governing the (i) agreement to arbitrate, and (ii) arbitration itself, are

the same, which is most often the case. As explained earlier, the former relates to validity, scope,

and interpretation of the arbitration agreement, while the later relates to inter alia the supervisory

jurisdiction by national courts.

10

[2021] EWHC 872 (Ch).

11

[1991] 2 Lloyd’s Rep 127.

Arb.Pet. No.48/2023 Page 6 of 26

governing interim measures (e.g. Court orders for the

preservation or storage of goods), the rules empowering the

exercise by the Court of supportive measures to assist an

arbitration which has run into difficulties (e.g. filling a

vacancy in the composition of the arbitral tribunal if there is

no other mechanism) and the rules providing for the

exercise by the Court of its supervisory jurisdiction over

arbitrations (e.g. removing an , arbitrator for misconduct).

(emphasis supplied)”

7. This ratio distinguishes between four choices of law – (i) the law

governing the arbitration, (ii) the proper law of arbitration agreement, (iii)

the proper law of contract, and (iv) the procedural rules which apply in

the arbitration. These choices are either expressly provided or implied

by the parties involved. The passage also highlights the subtle distinction

between the proper law of arbitration agreement (i.e., law governing the

agreement to arbitrate) and the law governing the arbitration as a whole.

The law governing the agreement to arbitrate determines the validity,

scope, and interpretation of the agreement. In contrast, the law

governing the arbitration itself is concerned with determining which court

has supervisory jurisdiction over the arbitration. This jurisdictional

framework pertains to the conduct of the arbitration, the rules governing

interim measures, and the provisions under which the court may exercise

its supervisory authority, such as in the removal of arbitrators.

8. While parties may elect to differentiate between the lex arbitri — the law

governing the agreement to arbitrate and the law governing the

arbitration itself — such a distinction warrants caution. A distinction

should not be readily drawn unless the parties intended to preserve such

Arb.Pet. No.48/2023 Page 7 of 26

a distinction. Invariably, these concepts are subsumed in each other.

They are inherently intertwined as a part and parcel of the lex arbitri. This

is particularly apparent in matters such as the filling of vacancies within

the arbitral tribunal or the removal of an arbitrator for misconduct. In

these situations, the law governing the arbitration agreement and the law

governing the arbitration overlap, as both are essential to the functioning

and integrity of the arbitral process. Consequently, unless the parties

have provided otherwise, it is prudent not to divide lex arbitri.

9. A more common distinction exists between the lex arbitri and the lex fori,

that is the governing law of arbitration and the procedure of arbitration.

The lex arbitri determines which court exercises supervisory jurisdiction.

In Melford Capital (supra), it was held that both the contract and the

arbitration agreement would be governed by English Law but the

procedural rules shall be the rules of ICC.

10. This position is also clear from the judgment of Christopher Clark, J. in

Ace Capital Limited v. CMS Energy Corporation,

12

which had

examined Paul Smith (supra) to observe that the law governing the

arbitration decides the extent of the court’s supervisory jurisdiction.

Agreeing on the approach adopted in Ace Capital (supra), the judgment

in Milford Capital (supra) states that it is the appropriate lodestar.

12

2008 EW SC 1843 Comm.

Arb.Pet. No.48/2023 Page 8 of 26

11. We are of the view that matters such as filling vacancies on arbitral

tribunals and the removal of an arbitrator through the exercise of

supervisory jurisdiction, in the absence of a clear mechanism within the

arbitration agreement, should be normally governed by the law

applicable to the arbitration agreement itself, rather than by the

procedural rules that govern the arbitration process. It is, after all, the lex

arbitri that governs the arbitration and its associated processes.

However, as noticed above, this may not be the position in all cases as

the mutually agreed terms may stipulate otherwise.

12. At this juncture, the pertinent question that arises is: how do we

determine the law that governs the arbitration agreement?

13. In Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb ,

13

the UK Supreme Court examined this legal issue and divergent opinions

surrounding it. One line of precedents suggest that the lex contractus

should govern the arbitration agreement. Although the arbitration

agreement is separable from the main contract, it is not completely

detached from it. Conversely, there is case law indicating that the law of

the seat of arbitration should typically govern the arbitration agreement.

Enka Insaat (supra) follows the principles stipulated in Sulamérica Cia

Nacional De Seguros S.A. and Others v. Enesa Engenharia S.A. and

13

2020 UK SC 38.

Arb.Pet. No.48/2023 Page 9 of 26

Others,

14

which it observes straddles both views. The Court ultimately

establishes the following principles:

“X Conclusions on applicable law

170. It may be useful to summarise the principles which in our

judgment govern the determination of the law applicable to the

arbitration agreement in cases of this kind:

i) Where a contract contains an agreement to resolve disputes

arising from it by arbitration, the law applicable to the arbitration

agreement may not be the same as the law applicable to the other

parts of the contract and is to be determined by applying English

common law rules for resolving conflicts of laws rather than the

provisions of the Rome I Regulation.

ii) According to these rules, the law applicable to the arbitration

agreement will be (a) the law chosen by the parties to govern it

or (b) in the absence of such a choice, the system of law with

which the arbitration agreement is most closely connected.

iii) Whether the parties have agreed on a choice of law to govern

the arbitration agreement is ascertained by construing the

arbitration agreement and the contract containing it, as a whole,

applying the rules of contractual interpretation of English law as

the law of the forum.

iv) Where the law applicable to the arbitration agreement is

not specified, a choice of governing law for the contract will

generally apply to an arbitration agreement which forms part

of the contract.

v) The choice of a different country as the seat of the

arbitration is not, without more, sufficient to negate an

inference that a choice of law to govern the contract was

intended to apply to the arbitration agreement.

vi) Additional factors which may, however, negate such an

inference and may in some cases imply that the arbitration

agreement was intended to be governed by the law of the

seat are: (a) any provision of the law of the seat which

indicates that, where an arbitration is subject to that law, the

arbitration agreement will also be treated as governed by

that country’s law; or (b) the existence of a serious risk that,

if governed by the same law as the main contract, the

14

[2012] EWCA Civ 638.

Arb.Pet. No.48/2023 Page 10 of 26

arbitration agreement would be ineffective. Either factor may

be reinforced by circumstances indicating that the seat was

deliberately chosen as a neutral forum for the arbitration.

vii) Where there is no express choice of law to govern the

contract, a clause providing for arbitration in a particular place will

not by itself justify an inference that the contract (or the arbitration

agreement) is intended to be governed by the law of that place.

viii) In the absence of any choice of law to govern the arbitration

agreement, the arbitration agreement is governed by the law with

which it is most closely connected. Where the parties have

chosen a seat of arbitration, this will generally be the law of the

seat, even if this differs from the law applicable to the parties’

substantive contractual obligations.

ix) The fact that the contract requires the parties to attempt to

resolve a dispute through good faith negotiation, mediation or any

other procedure before referring it to arbitration will not generally

provide a reason to displace the law of the seat of arbitration as

the law applicable to the arbitration agreement by default in the

absence of a choice of law to govern it.

(emphasis supplied)”

14. The conclusions in Enka Insaat (supra) summarizes the tie breaker

rules. Sub-paragraph (i) explains that the law governing the arbitration

agreement may differ from the law governing the contract. The former

should be determined through conflict of law rules. Sub-paragraph (ii)

states that the law governing the arbitration agreement is the law chosen

by the parties. If no such choice is made, the law most closely connected

to the agreement applies. However, sub-paragraph (ii) must be read

alongside sub-paragraph (iii), which clarifies that the law chosen for the

arbitration agreement is determined by interpreting the agreement, and

if necessary, the entire contract using rules of contractual interpretation.

Sub-paragraph (iv) states that when the law governing the arbitration

Arb.Pet. No.48/2023 Page 11 of 26

agreement is not specified, the law of the contract (lex contractus)

usually applies. Sub-paragraph (v) highlights that selecting a country for

the seat of arbitration does not automatically alter the presumption that

lex contractus governs the arbitration agreement. Sub-paragraph (vi)

outlines factors that may override this presumption. This can happen

when the law of the seat mandates that the arbitration agreement must

be governed by the law of that country. For instance, this becomes

relevant in the context of the A&C Act. Section 2(2) of the A&C Act

stipulates that Part I of the A&C Act applies to arbitrations seated in

India.

15

The second exception is when there is a serious risk that the

agreement will become ineffective, or the dispute will become

inarbitrable, if governed by the same law as that of the contract.

16

Third

factor is where the seat is deliberately chosen as a neutral forum. These

factors will displace the presumption in favour of lex contractus

governing the arbitration agreement. The factors mentioned in sub-para

(vi) are not exhaustive and there may be other additional factors negating

the presumption. Sub-para (vii) deals with cases where a particular place

is chosen as the venue in contrast to the seat of arbitration. A place

being chosen, does not by itself justify an inference that the arbitration

agreement is intended to be governed by the law of this venue. Sub-para

(viii) states that in the absence of any choice of law governing the

arbitration agreement, the arbitration agreement will be governed by the

15

See Arif Azmi (supra) quoted in paragraph 25 post.

16

See Anupam Mittal v. Westbridge Ventures II Investment Holdings, [2023] SGCA 1.

Arb.Pet. No.48/2023 Page 12 of 26

law with which it is most closely connected. The close connection test

applies only when the law governing the arbitration agreement cannot

be ascertained even after applying the earlier paragraphs. In such a

case, the law applicable to the seat of arbitration will be the law having

the closest connection to the arbitration even if it differs from the parties’

contractual obligations.

17

The closest connection test and a presumption

in favour of seat in terms of sub-para (viii) will only apply when the

contract does not stipulate the lex contractus. Sub-para (ix) states cases

relating to attempt to resolve a dispute through good faith, negotiation,

mediation, etc. will not generally provide reason to displace the law of

the seat of arbitration

18

.

15. We believe the above conclusions state the good and correct legal

position, except on the aspects where the Courts in India have taken a

different view. Consistency and uniformity in applying legal principles are

crucial for ensuring fairness and comity in international commerce and

dispute resolution mechanisms.

16. Earlier, Sulamérica Cia (supra) had laid down this three-fold test to

determine the law governing the arbitration agreement:

“25. Although there is a wealth of dicta touching on the problem,

it is accepted that there is no decision binding on this court.

However, the authorities establish two propositions that were not

controversial but which provide the starting point for any enquiry

into the proper law of an arbitration agreement. The first is that,

even if the agreement forms part of a substantive contract (as is

17

For the Indian Law relating to closest connection test see Arif Azmi (supra).

18

Recently enacted Arbitration Act, 2025, in the United Kingdom, which subject to significant

exceptions takes a different position from that in Enka Insaat (supra).

Arb.Pet. No.48/2023 Page 13 of 26

commonly the case), its proper law may not be the same as that

of the substantive contract. The second is that the proper law

is to be determined by undertaking a three-stage enquiry

into (i) express choice, (ii) implied choice and (iii) closest and

most real connection. As a matter of principle, those three

stages ought to be embarked on separately and in that order,

since any choice made by the parties ought to be respected, but

it has been said on many occasions that in practice stage (ii) often

merges into stage (iii), because identification of the system of law

with which the agreement has its closest and most real

connection is likely to be an important factor in deciding whether

the parties have made an implied choice of proper law: see Dicey,

Morris & Collins, op. cit. paragraph 32-006. Much attention has

been paid in recent cases to the closest and most real

connection, but, for the reasons given earlier, it is important

not to overlook the question of implied choice of proper law,

particularly when the parties have expressly chosen a

system of law to govern the substantive contract of which

the arbitration agreement forms part.

(emphasis supplied)”

Sulamérica Cia (supra) observes that the law governing the arbitration

agreement may differ from the law of the contract. However, it is

reasonable to presume that the parties intended for their entire

relationship to be governed by the same system of law throughout the

contract. In this context, a distinction is made between a stand-alone

arbitration agreement and one that is embedded within a contract. In the

former, a choice of seat of arbitration becomes highly significant, and the

law of the seat would likely govern the arbitration agreement. However,

when the arbitration agreement forms part of a contract, the express

choice of a lex contractus strongly indicates the parties' intention. It

would generally be inferred that the arbitration is governed by the same

law as the substantive contract. However, this presumption is rebuttable

as previously highlighted. Even when the arbitration agreement is part of

the contract, the court must conduct a three-step inquiry: first, looking at

Arb.Pet. No.48/2023 Page 14 of 26

the express choice of law; second, considering any implied choice; and

third, determining the closest and most real connection. Second step is

applied when the first step is negative, and the third step is applied when

the first and second steps are negative.

17. In BYC v. BCZ,

19

the High Court of Singapore references Sulamérica

Cia (supra) and notes sharply divided legal opinions. Some argue that

the choice of law, often expressed in broad and general terms, would

usually distinguish the main contract from the arbitration agreement. The

opposing view is that courts would require additional factors to apply a

governing law different from that of the seat of arbitration. However, BCY

(supra) favours the first view. The argument of severability, it was

observed, would be ineffective. The doctrine simply ensures that the

arbitration clause remains enforceable even if the main contract is found

to be invalid. It is designed to prevent arbitration from being avoided by

denying the existence of the underlying contract. This, however, does

not mean that the arbitration clause is completely insulated or detached

from the main contract.

20

18. BCY (supra) acknowledges that the seat of arbitration is chosen based

on a desire for a neutral forum. The law of seat would govern the

procedure of arbitration. However, it does not necessarily follow that the

said law would govern the law of formation of the arbitration agreement,

19

[2016] SGHC 249.

Arb.Pet. No.48/2023 Page 15 of 26

its validity, etc. Therefore, where the arbitration agreement is a part of

the main contract, the lex contractus is a strong indicator of the law

governing the arbitration agreement unless there are indications to the

contrary. The choice of a seat different from the lex contractus is not, by

itself, enough to displace this presumption.

19. In BNA v. BNP and Another,

21

the Singapore Court of Appeal noted

each of the following may be distinct – a seat of arbitration, the arbitral

institution, the arbitral rules and the governing law of arbitration

agreement. It endorsed the three-step test from Sulamérica Cia (supra)

and BCY (supra). In this case, the phrase "arbitration at Shanghai" was

interpreted to indicate Shanghai as the seat of arbitration. This was

based on a natural reading of the clause. Although Singapore

International Arbitration Centre

22

governed the procedural aspects of

arbitration, the Court ruled that the implied choice of the law governing

the arbitration agreement was the same as the seat and lex contractus—

the law of the People’s Republic of China.

20. In Enercon (India) Ltd. v. Enercon GmbH,

23

this Court affirmed the

principle that the parties may agree to hold arbitration in a particular

place or country (Country X), but subject it to the procedural laws of

another country (Country Y). The Court also distinguished between the

venue and seat of arbitration. It accepted the notion that the parties could

21

[2019] SGCA 84.

22

Hereinafter referred to as, “SIAC”.

23

(2014) 5 SCC 1.

Arb.Pet. No.48/2023 Page 16 of 26

agree on the law of one country to govern the arbitration, irrespective of

where the arbitration takes place. Reference was made to Braes of

Doune Wind Farm (Scotland) Ltd. v. Alfred McAlpine Business

Services Ltd.,

24

and the Court of Appeal’s decision in C v. D

25

.

Reference was also made to Sulamérica Cia (supra), with which the

court agreed. In that case, despite the venue of the arbitration

proceedings being London, it was held that the seat of arbitration was

not necessarily London. In international commercial arbitration, the

venue can differ from the seat. The argument for concurrent jurisdiction

was rejected.

21. In Arif Azim (supra), this Court has examined the arbitration regime

change following the Constitution Bench judgment in BALCO v. Kaiser

Aluminium Technical Services Inc

26

. Reference was made to the

Court's decision in Bhatia International v. Bulk Trading S.A. and

Another

27

. There is also a discussion on applicability of Section 9 of the

A&C Act to international commercial arbitrations. It was observed that

Part 1 of the A&C Act and its provisions apply when the arbitration takes

place in India—i.e., (i) when the seat of arbitration is in India; or (ii) when

the arbitration agreement is governed Indian law. The Court also referred

to Sulamérica Cia (supra) and Roger Shashoua (1) v. Sharma

28

.

24

[2008] EWHC 426.

25

[2007] EWCA Civ 1282.

26

2016 (4) SCC 126.

27

(2002) 4 SCC 105.

28

[2009] EWHC 957 (Comm).

Arb.Pet. No.48/2023 Page 17 of 26

22. In Mankastu Impex Private Limited v. Airvisual Limited,

29

the

agreement stipulated that all disputes arising out of the contract shall be

referred to and finally resolved by arbitration administered in Hong Kong.

The contract was to be governed by the laws of India and the courts in

Delhi shall have jurisdiction. Clause 17 reads as under:

“17. Governing law and dispute resolution

17.1 This MoU is governed by the laws of India, without regard to

its conflicts of laws provisions and courts at New Delhi shall have

the jurisdiction.

17.2 Any dispute, controversy, difference or claim arising out of

or relating to this MoU, including the existence, validity,

interpretation, performance, breach or termination thereof or any

dispute regarding non-contractual obligations arising out of or

relating to it shall be referred to and finally resolved by arbitration

administered in Hong Kong.”

In the context of Clause 17(2), this Court refused to entertain an

application for appointment of an arbitration panel. It stated that the

parties must approach the courts of Hong Kong. Clearly a distinction was

drawn between the law governing the arbitration agreement and the law

governing the contract i.e., lex contractus. The lex contractus was Indian

law, but the law applicable to the arbitration agreement had to be in terms

of Hong Kong law. Thus it was held that, lex contractus, being different

from lex arbitri, the Indian Courts lacked jurisdiction.

23. In Roger Shashoua (2) and Others v. Mukesh Sharma and Others,

30

this Court affirmed Roger Shashoua (1) (supra), leading to the

29

(2020) 5 SCC 399.

30

[2009] EWHC 957 (Comm).

Arb.Pet. No.48/2023 Page 18 of 26

acceptance of the Shashoua principle. In that case, London was

explicitly designated as the place of arbitration, with no alternative

location as the seat. Given this, along with the application of a

supranational body of arbitration rules, and the absence of any

significant contrary indications, London was determined to be the

juridical seat, with English law as the curial law.

24. In Arif Azim (supra), the Shashoua principle was applied to the dispute

resolution clause. The dispute resolution specified that any disputes or

differences arising from the agreement, including its validity and

applicability, would be referred to arbitration under the UAE Arbitration

and Conciliation Rules. The venue for the arbitration was designated as

Dubai, UAE. A separate clause related to law and jurisdiction stated that

the agreement would be governed by and construed in accordance with

the laws of the UAE, subject to the non-exclusive jurisdiction of the Dubai

courts. In this factual background, it was held that the courts in Dubai,

UAE, not Indian courts, would have the jurisdiction to appoint an

arbitrator. The conclusions drawn by the Court are as follows:

“E. CONCLUSION

71. From the above exposition of law, the following position

of law emerges: (i) Part I of the Act, 1996 and the provisions

thereunder only applies where the arbitration takes place in

India i.e., where either (I) the seat of arbitration is in India OR

(II) the law governing the arbitration agreement are the laws

of India.

(ii) Arbitration agreements executed after 06.09.2012 where the

seat of arbitration is outside India, Part I of the Act, 1996 and the

Arb.Pet. No.48/2023 Page 19 of 26

provisions thereunder will not be applicable and would fall beyond

the jurisdiction of Indian courts.

(iii) Even those arbitration agreements that have been executed

prior to 06.09.2012 Part I of the Act, 1996 will not be applicable,

if its application has been excluded by the parties in the arbitration

agreement either explicitly by designating the seat of arbitration

outside India or implicitly by choosing the law governing the

agreement to be any other law other than Indian law.

(iv) The moment ‘seat’ is determined, it would be akin to an

exclusive jurisdiction clause whereby only the jurisdictional courts

of that seat alone will have the jurisdiction to regulate the arbitral

proceedings. The notional doctrine of concurrent jurisdiction has

been expressly rejected and overruled by this Court in its

subsequent decisions.

(v) The ‘Closest Connection Test’ for determining the seat of

arbitration by identifying the law with which the agreement to

arbitrate has its closest and most real connection is no longer a

viable criterion for determination of the seat or situs of arbitration

in view of the Shashoua Principle. The seat of arbitration cannot

be determined by formulaic and unpredictable application of

choice of law rules based on abstract connecting factors to the

underlying contract. Even if the law governing the contract has

been expressly stipulated, it does not mean that the law

governing the arbitration agreement and by extension the seat of

arbitration will be the same as the lex contractus.

(vi) The more appropriate criterion for determining the seat of

arbitration in view of the subsequent decisions of this Court is that

where in an arbitration agreement there is an express designation

of a place of arbitration anchoring the arbitral proceedings to such

place, and there being no other significant contrary indicia to

show otherwise, such place would be the ‘seat’ of arbitration even

if it is designated in the nomenclature of ‘venue’ in the arbitration

agreement.

(vii) Where the curial law of a particular place or supranational

body of rules has been stipulated in an arbitration agreement or

clause, such stipulation is a positive indicium that the place so

designated is actually the ‘seat’, as more often than not the law

governing the arbitration agreement and by extension the seat of

the arbitration tends to coincide with the curial law.

(viii) Merely because the parties have stipulated a venue without

any express choice of a seat, the courts cannot sideline the

specific choices made by the parties in the arbitration agreement

by imputing these stipulations as inadvertence at the behest of

the parties as regards the seat of arbitration. Deference has to be

shown to each and every choice and stipulations made by the

Arb.Pet. No.48/2023 Page 20 of 26

parties, after all the courts are only a conduit or means to

arbitration, and the sum and substance of the arbitration is

derived from the choices of the parties and their intentions

contained in the arbitration agreement. It is the duty of the court

to give weight and due consideration to each choice made by the

parties and to construe the arbitration agreement in a manner that

aligns the most with such stipulations and intentions.

(ix) We do not for a moment say that, the Closest Connection

Test has no application whatsoever, where there is no express or

implied designation of a place of arbitration in the agreement

either in the form of ‘venue’ or ‘curial law’, there the closest

connection test may be more suitable for determining the seat of

arbitration.

(x) Where two or more possible places that have been designated

in the arbitration agreement either expressly or impliedly, equally

appear to be the seat of arbitration, then in such cases the conflict

may be resolved through recourse to the Doctrine of Forum Non

Conveniens, and the seat be then determined based on which

one of the possible places may be the most appropriate forum

keeping in mind the nature of the agreement, the dispute at hand,

the parties themselves and their intentions. The place most suited

for the interests of all the parties and the ends of justice may be

determined as the ‘seat’ of arbitration.”

25. We now turn our attention to the two clauses of the Distributor

Agreement. Clause 16.5 stipulates that the agreement shall be governed

by and construed in accordance with laws of India. It further provides that

all matters arising from the agreement shall be subject to the jurisdiction

of the courts in Gujarat, India. Clause 18, which deals with the settlement

of disputes, outlines both a conciliation and arbitration process. Should

disputes or differences remain unresolved through conciliation, either

party has the right to submit them to arbitration. The arbitration will be

conducted by the Arbitration and Conciliation Centre at the Chambers of

Commerce in Bogota. The arbitration will take place in Bogota, either at

the Centre's premises or at a location determined by the Director of the

Arb.Pet. No.48/2023 Page 21 of 26

Centre. The award shall be in law and in the standard as per the

Colombian law governing the mailer (sic matter). The costs of arbitration

and conciliation will be shared equally by the parties.

26. To decide the controversy, we will address the conflict between these

clauses. Accordingly, we turn our attention to the conflict of law

principles. Milford Capital Holdings (supra) states that to resolve

conflicts between competing or inconsistent clauses, the court should

read the contract as a whole, striving to give effect to all its provisions.

One clause may influence the content of another, and a clause should

not be rejected unless it is clearly inconsistent or repugnant to the rest

of the agreement. Only when such a reconciliation is not possible will the

court consider one clause to prevail over an incorporated standard. This

approach marks a slight departure from the principle that prioritizes the

first clause in the event of conflicting terms. While we do not need to

explore these principles exhaustively, it is significant to note that a clause

should not be dismissed as redundant unless it is manifestly inconsistent

with or repugnant to the rest of the agreement. This is particularly

important in the present case, as both parties have agreed to these

clauses. We must seek to interpret the clauses in a manner that

harmonizes their provisions, giving effect to each wherever possible.

Arb.Pet. No.48/2023 Page 22 of 26

27. In Arnold v. Britton,

31

the Supreme Court of United Kingdom observed

as under:

“When interpreting a written contract, the court is concerned to

identify the intention of the parties by reference to “what a

reasonable person having all the background knowledge which

would have been available to the parties would have understood

them to be using the language in the contract to mean”, to quote

Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009]

AC 1101, para 14. And it does so by focussing on the meaning of

the relevant words, in this case clause 3(2) of each of the 25

leases, in their documentary, factual and commercial context.

That meaning has to be assessed in the light of (i) the natural and

ordinary meaning of the clause, (ii) any other relevant provisions

of the lease, (iii) the overall purpose of the clause and the lease,

(iv) the facts and circumstances known or assumed by the parties

at the time that the document was executed, and (v) commercial

common sense, but (vi) disregarding subjective evidence of any

party’s intentions […].”

28. The interpretation of a contract involves determining the meaning that a

reasonable person, with all relevant background knowledge available to

the parties at the time of the contract, would derive from the document.

A similar principle is outlined in Chitty on Contracts,

32

which, when

discussing inconsistent terms, observes:

“Where the different parts of an instrument are inconsistent, effect

must be given to that part which is calculated to carry into effect

the purpose of the contract as gathered from the instrument as a

whole and the available background, and that part which would

defeat it must be rejected. The old rule was, in such a case, that

the earlier clause was to be received and the later rejected; but

this rule was a mere rule of thumb, totally unscientific, and out of

keeping with the modern construction of documents. When

considering how to interpret a contract in the case of alleged

inconsistency, the courts distinguish between a case where the

contract makes provision for the possibility of inconsistency and

the case where there is no such provision. In the latter case the

contract documents should as far as possible be read as

complementing each other and therefore as expressing the

parties’ intentions in a consistent and coherent manner.”

31

2015 AC 1619.

32

Hugh Beale, Chitty on Contracts, Sweet and Maxwell, Vol. 1, 33

rd

Ed. (2019).

Arb.Pet. No.48/2023 Page 23 of 26

29. Clause 16.5 is clear and unambiguous. It explicitly states that the entire

agreement shall be governed by and construed in accordance with the

laws of India, and all matters arising from the agreement shall fall under

the jurisdiction of the courts in Gujarat, India. Given this, it is reasonable

to assume that, when drafting this clause, the parties were fully aware of

Clause 18, which provides for arbitration and conciliation under the

Arbitration and Conciliation Centre of the Chambers of Commerce in

Bogota. In our view, Bogota has been designated as the venue for

conciliation and arbitration, while the courts in Gujarat, India, retain

exclusive jurisdiction over disputes. This must, unless there is a

divergence in lex arbitri, include jurisdiction over appointments and act

as a conduit for the arbitration in Bogota, Colombia.

30. The law governing the arbitration agreement, being Indian law, means

that its validity, scope, and interpretation will be determined in

accordance with Indian law. But which national courts—those in India or

Colombia—exercise supervisory jurisdiction over the arbitration

proceedings? Does the A&C Act apply to these arbitration proceedings?

Upon a consistent reading of the Distributor Agreement, it is clear that

only the courts in Gujarat, India, are referenced. While it is acknowledged

that the venue for arbitration is Bogota, Colombia, and that the

procedural rules of the Arbitration and Conciliation Centre at the

Chambers of Commerce in Bogota are to apply, this does not diminish

Arb.Pet. No.48/2023 Page 24 of 26

the supervisory powers of Indian courts, as explicitly outlined in Clause

16.5.

31. While recording the above findings, we are also guided by the principles

outlined above for locating the law governing the arbitration agreement.

We begin by applying the three-step test developed by Sulamérica Cia

(supra). First, neither Clause 16.5 nor Clause 18 explicitly stipulates the

governing law of the arbitration agreement. Therefore, we proceed to the

next step of the test, which involves identifying the parties' implied choice

of law for the arbitration agreement. At this stage, there is a strong

presumption that the lex contractus, i.e., Indian law, governs the

arbitration agreement. As explained earlier, this presumption may be

displaced if the arbitration agreement is rendered non-arbitrable under

Indian law. But that is not the case here. Furthermore, the mere choice

of ‘place’ is not sufficient, in the absence of other relevant factors, to

override the presumption in favor of the lex contractus. In this case, it is

important to note that no seat of arbitration has been explicitly chosen.

In conclusion, at this second stage of the inquiry, we find that the parties

have impliedly agreed that Indian law governs the arbitration agreement,

and the controversy can be resolved accordingly.

32. We reiterate that the use of the premises at the Centre, or any other

location designated by the Director of the Centre in Bogota, does not

imply that Colombian law governs the arbitration agreement. Although

Clause 18 specifies that the award shall conform to Colombian law, this

Arb.Pet. No.48/2023 Page 25 of 26

provision pertains solely to the arbitration proceedings or the award

matters. It does not override or diminish the effect of Clause 16.5, which

clearly stipulates that Indian law shall govern the agreement and the

related disputes. The legal implications of this would include the

applicability of the A&C Act, and the appointment jurisdiction of Indian

courts. We do not interpret the final portion of Clause 18 as undermining

the legal impact of Clause 16.5. Therefore, we affirm the applicability of

the A&C Act under Section 11(6) of the Arbitration and Conciliation Act.

33. In accordance with Clause 16.5 and 18, the procedural rules of the

arbitration would be the rules of the Conciliation and Arbitration Centre

of the Chamber of Commerce of Bogota DC, with Bogota DC as the

venue of arbitration.

34. However, during the course of the hearing, the learned counsel for both

parties, Meril and Disortho, unanimously stated that, should the present

application under Section 11(6) of the Arbitration and Conciliation Act,

1996, be allowed, the parties are agreeable to the arbitration being held

in India. Furthermore, the parties have consented to the appointment of

a sole arbitrator to adjudicate and decide the disputes in question.

35. In view of this consensus, we appoint Mr. Justice S.P. Garg, retired judge

of the High Court of Delhi, as the sole arbitrator. The venue of the

arbitration shall be decided mutually by the parties and the learned

arbitrator. The arbitration shall be governed by the rules applicable to the

Arb.Pet. No.48/2023 Page 26 of 26

Delhi International Arbitration Centre attached to the High Court of Delhi.

The fee schedule applicable to international arbitrations shall apply.

36. The arbitration petition is allowed in the above terms and disposed of

accordingly.

......................................CJI.

(SANJIV KHANNA)

…......................................J.

(SANJAY KUMAR)

…......................................J.

(K.V. VISWANATHAN)

NEW DELHI;

MARCH 18, 2025.