The present appeals are filed against the judgement of a Single Judge of the Bombay High Court, by which four final awards made by a sole arbitrator in London under ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1544 OF 2020
(ARISING OUT OF SLP (CIVIL) NO.8304 OF 2019)
VIJAY KARIA & ORS. …Appellants
Versus
PRYSMIAN CAVI E SISTEMI SRL & ORS. …Respondents
WITH
CIVIL APPEAL NO. 1545 OF 2020
(ARISING OUT OF SLP (CIVIL) NO.8435 OF 2019)
J U D G M E N T
R.F. Nariman, J.
1.Leave granted.
2.The present appeals are filed against the judgment of a Single Judge
of the Bombay High Court dated 07.01.2019, by which four final
awards made by a sole arbitrator in London under the London Court of
International Arbitration Rules (2014) (hereinafter referred to as the
“LCIA Rules”) were held to be enforceable against the Appellants in
India.
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3.The brief facts of this case are as follows. The Appellants, i.e.
Appellant No.1 Shri Vijay Karia, and Appellants No.2 to 39 (who are
represented by Appellant No.1) are individual, non-corporate
shareholders of Ravin Cables Limited (hereinafter referred to as
“Ravin”). On 19.01.2010, the Appellants and Ravin entered into a Joint
Venture Agreement (hereinafter referred to as “JVA”) with Respondent
No.1, i.e. Prysmian Cavi E Sistemi SRL – a company registered under
the laws of Italy. By this JVA, Respondent No.1 acquired a majority
shareholding (51%) of Ravin’s share capital. The material clauses of
the JVA are set out hereinbelow:
“8. Purpose and Objectives
8.1 Purpose of the Company and Scope of the
Agreement
Subsequent to Closing, the Company shall be a joint
venture between Prysmian and the Existing
Shareholders for the purposes of undertaking and
conducting the business of the company, or for such
other activities as may be determined by the
Shareholders from time to time, subject to the
applicable law. The business of the company shall be
conducted in the best interests of the Company, and in
accordance with sound professional and commercial
principles.”
“12.6. Chairman and Managing Director
12.6.1 Mr. Karia shall be the Chairman of the Board as
well as the Managing Director of the Company until:
(i) Expiry of seven (7) years from the Agreement Date;
or
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(ii) The date of which the Existing Shareholders cease
to hold in the aggregate at least ten percent (10%) of
the share capital of the Company:
Whichever occurs earlier.
It is hereby agreed that Mr. Karia shall not, during such
term, be entitled to be removed as a Chairman and
Managing Director by the passing of an ordinary
resolution at a general meeting of the Company…”
“12.6.4. Without prejudice to the aforesaid clause
12.6.3, the Managing Director shall continue to remain
responsible for the day to day management of the
Company in accordance with the Interim Period Policy
adopted by the Board on the Closing Date, until the
appointment of the CEO of the Company (“Interim
Period”)”
“12.6.5 As soon as practicable after the efflux of the
Interim Period, a Board shall be convened to resolve
upon a new policy, applicable for a period of 6 (six)
months thereafter (the “Integration Period”), for the
delegation of the powers to the managers of the
Company (the “Delegation of Powers Policy”) all
powers not delegated to the managers of the
Company pursuant to such Delegation of Powers
Policy, shall be delegated jointly to the CEO and the
Managing Director…”
“12.6.6 Provided however, that subject to the overall
supervision of the Board, after the efflux of the
Integration Period, the Managing Director shall be
directly responsible solely for managing the internal
audit as well as the strategy and business
development of the Company and present to the
Board his findings and analysis for final determination
by the Board. Accordingly all the powers which are not
delegated to the managers of the Company pursuant
to the Delegation of Powers Policy, as may be
amended by the Board from time to time, shall be
delegated to the Managing Director to the extent such
powers fall within his duties as aforesaid.
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12.6.7 After the Integration Period, the Managing
Director may appoint an internal auditor to assist the
Managing Director in his responsibility towards the
internal audit of the company. This internal auditor
shall report directly to the Managing Director and
functionally report to the internal audit department of
Prysmian S.P.A.”
“12.7 Chief Executive Officer
12.7.1 The CEO shall be appointed by and shall
directly report to the Board.
12.7.2 Without prejudice to the aforesaid Clause
12.7.1, the CEO shall from the date of its appointment
till the efflux of the Integration Period, be responsible
for the day to day management of the Company jointly
with the Managing Director.
12.7.3 Provided however, that subject to the overall
supervision of the Board, after the efflux of the
Integration Period, the CEO shall be responsible for
the day to day management of the Company excluding
solely the internal audit and the strategy and business
development of the Company for which the Managing
Director shall be responsible. Accordingly all the
powers which are not delegated to the managers of
the Company pursuant to the Delegation of Powers
Policy, as may be amended by the Board from time to
time, shall be delegated to the CEO to the extent such
powers fall within his duties as aforesaid.”
“17. PROCEDURE FOR FAIR MARKET VALUATION
17.1 Notwithstanding anything contained in this
Agreement, all references in this Agreement to Fair
Market Value shall be the fair market value as
determined, applying the definition of EBITDA, Net
Financial Indebtedness (NFI) and Net Working Capital
(NWC) set forth under Schedule X, by any one of the
following four accounting firms settled in India:
(a) KPMG
(b) Ernst & Young;
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(c) PriceWaterhouseCoopers;
(d) Deloitte
17.2 The accounting firm shall be chosen from among
those indicated under clause 17.1 above by the Party
that, according to clauses 23 and 24, is called by the
other Party to sell, in whole or in part its share
participation in the Company to the other Party; or by
the Party that, according to Clauses 11.5 (iv), 16 and
23, calls the other Party to buy, in whole or in part, its
share participation in the Company (in either case the
“Exiting Party”). If the Exiting Party fails to choose the
accounting firm within thirty (30) calendar days from (i)
the receipt of the notice by which the other Party has
intimated it to sell, in whole or in part, its share
participation in the Company to the other Party; or (ii)
from the serving of notice to the other Party to buy, in
whole or in part, its share participation in the
Company, then the accounting firm shall be chosen by
the Party (the “Non-Exiting Party”) that called the other
Party to sell, in whole or in part, its share participation
in the Company to the other Party or was called by the
Exiting Party to buy, in whole or in part, the Exiting
Party’s share participation in the Company.”
“20. Mutual Covenants and Undertakings
xxx xxx xxx
20.1.2 The Parties further agree to cooperate and act
in good faith, fairness and equity as between
themselves.”
“21. Business in India
21.1 The Parties agree that neither Prysmian nor Mr.
Karia, whether directly or through their Affiliates, shall
invest, acquire or participate in the Cable Business in
India, save and except through the Company in
accordance with this agreement.”
“21.5 Further, it is agreed that, within March 31,2011,
the Promoters shall either stop or cease to have any
interest in any activity they are currently or will be
conducting in India, directly or indirectly through any
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Affiliates, which is in competition with the business of
the Company. Such ceased activities shall then not be
offered by Mr. Karia to the Company, pursuant to
Clause 21.2 for a period of three years from the date
of such cessation.
For the sake of clarity, it is agreed that this Clause
21.4 shall apply, without being limited, to the activities
carried out by (i) Vijay Industrial Electricals, a
company incorporated under the laws of India and
having its registered office at 302, Akruti Trade Centre,
Third Floor, Road n. 7, MIDC, Marol, Andheri(east)
Mumbai-400093 (ii) Special Cable Industries, a
company incorporated under the laws of India and
having its registered office at A-1/404 GIDC Estate,
Ankleshwar 393002.”
“23. Event of Default
23.1 If any party(“ Defaulting Party”) is in material
breach of any provisions, obligations, covenants,
conditions and undertakings under this Agreement , or
in the event of insolvency or bankruptcy of the
Defaulting Party or if the substantial undertaking or
assets of the Defaulting Party is under receivership or
any other equivalent status, it shall be considered as
an event of default (“Event of Default”).
23.2 In such an event, the other party (“Non Defaulting
Party”) may give notice of the same (“Determination
Notice”) to the Defaulting Party.
23.3 The Defaulting Party shall have a period of
60(sixty) calendar days from the receipt of the
Determination Notice (or Such further period as the
Non Defaulting Party may agree in writing) to rectify
the Event of Default(“ Rectification Period”). It is
hereby clarified that this clause 23.3 is not applicable if
the Event of Default is represented by the insolvency
or bankruptcy of the defaulting Party in which case the
Non Defaulting Party may forthwith serve the EOD
Notice to the Defaulting Party.
23.4 If upon expiry of the Rectification Period, the
Event of Default has not been so rectified the Non
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Defaulting Party may require the Defaulting Party by
written notice(“EOD Notice”) to either (i) sell to the Non
Defaulting Party or such other Person as may be
nominated by the Non Defaulting Party, all , but not
less than all, the Shares held by the Defaulting Party
(“Defaulting Party Shares”) at the 10% (ten percent)
discount to the Fair Market Value(“ Discounted Price”)
or (ii) buy from the Non Defaulting Party all, but not
less than all, the Shares held by the Non Defaulting
Party at 10% (ten percent) over the Fair Market
Value(“Premium Price”). The Defaulting Party shall be
then under the obligation to either (I) sell all, but not
less than all, its Shares in the Company within 30
(thirty) calendar days of the EOD Notice or (II) buy all,
but not less than all, the Non Defaulting Party Shares
in the Company within 30(thirty) calendar days of the
EOD Notice, as the case may be.
23.5 It is hereby agreed that:
23.5.1 If Prysmian is the Defaulting Party, then Mr.
Karia only( and not the Existing Shareholders) will be
entitled to either(a) buy all(but not less than all)
Prysmian Shares at the Discounted Price or (b) sell to
Prysmian all (but not less than all its own shares) and
those of the Existing Shareholders at the Premium
Price.
23.5.2 If Mr. Karia or any of the Existing Shareholders
is the Defaulting Party, then Prysmian will be entitled
to either (a) buy all ( but not less than all) the Shares
held by Mr. Karia and Existing Shareholders at the
Discounted Price or (b) sell to Mr. Karia all ( but not
less than all) its own shares at the Premium Price.
For sake of clarity, the Parties agree that for the
purpose of this Clause 23.5 any reference to Mr. Karia
Shares, Prysmian Shares and Existing Shareholders
Share shall be deemed to include any Shares
transferred to any or their respective Affiliates pursuant
to the provisions of Clause 10.4 above.”
“27. ARBITRATION
27.1 Dispute Resolution
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27.1.1 The Parties agree to use all reasonable efforts
to resolve any dispute under, or in relation to this
Agreement quickly and amicably to achieve timely and
full performance of the terms of this Agreement.
27.1.2 Any dispute, controversy or claim arising out of
or relating to or in connection with this Agreement
including a dispute as to the validity or existence of the
Agreement or the arbitration agreement, or any breach
or alleged breach thereof, shall be settled exclusively
by arbitration under the Rules of Arbitration of the
London Court of International Arbitration (“LCIA”) as
amended from time to time.
27.1.3 The arbitral tribunal (“Tribunal”) shall consist of
one (1) arbitrator, to be appointed by the LCIA. The
arbitrator shall be from a neutral nationality, i.e. from a
nationality and origin other than any of the Parties.
27.1.4 The seat of the arbitration shall be London,
United Kingdom.
27.1.5 The language to be used in the arbitration shall
be English.
27.1.6 The law applicable and governing the
arbitration agreement (proper law of the arbitration
agreement) and in all respects including the conduct of
the proceedings shall be English Law. If the Institution
above named ceases to exist or is unable for any
reason to administer the arbitration proceedings then
the arbitration shall be conducted in accordance with
the (English) Arbitration ACT 1996 as amended from
time to time or any statute that may replace the said
Act.
27.1.7 Parties expressly agree that Part I of the
(Indian) Arbitration and Conciliation Act, 1996 (as
amended from time to time and any statutory
enactment thereof) shall have no application to the
arbitration agreement or the conduct of arbitration or to
the setting aside of any award made there under, and
the provisions of Part I ) including the provisions of
section 9 of the Arbitration and Conciliation Act, 1996
is hereby expressly excluded….
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27.1.9 The arbitration award (the “Award”) shall be
final and binding on the Parties.
27.1.10 The courts of London (United Kingdom) shall
have exclusive jurisdiction in respect of all matters
arising in connection with the arbitration and Existing
Shareholders submits to the jurisdiction of the said
courts. Provided however that the Award may be
enforced in any appropriate jurisdiction. If to be
enforced in India the Award shall be a foreign award to
which the legislative provisions incorporated in the
applicable Indian Act to give effect to the New York
Convention on foreign arbitral awards 1958 ( the New
York Convention) shall apply(currently Part II of the
(Indian) Arbitration and Conciliation Act 1996)…”
4.By a separate ‘Control Premium Agreement’ of the same date,
Respondent No.1 paid €5 million to the Appellants as ‘control premium’
for the acquisition of the share capital of Ravin.
5.On 10.08.2010, pursuant to clause 12 of the JVA - as the interim
period of six months under the JVA had come to an end - one Mr. Luigi
Sarogni was appointed as CEO of Ravin by Respondent No.1. Until
the expiry of the ‘integration period’, Ravin was to be jointly managed
by the said CEO and the Managing Director for another period of six
months. Factually, however, we are informed that the said ‘integration
period’ carried on beyond December 2010 and continued until
September 2011.
6.In April 2011, Mr. Giancarlo Esposito was designated by Respondent
No.1 as the H.R. Director of Ravin. On 15.09.2011, the Board of
Directors of Ravin conferred exclusive powers of the day to day
management of the company on the CEO so appointed by
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Respondent No.1. It is the case of Respondent No.1 that the
appointed CEO was thwarted in jointly managing the company during
this ‘integration period’, as a result of which, in November 2011, one
Ms. Cinzia Farise was appointed as CEO in the place of Mr. Sarogni
by the Board of Directors. Since the Board Resolution of 01.11.2011
conferred on Ms. Farise the power to employ and lay-off permanent
staff, she imposed a temporary freeze and check on new hiring without
her approval, which was alleged to be breached by the Appellants.
Later, from December 2011 till February 2012, Ms. Farise sought to
convene a board-meeting to finalise one Mr. Brunetti’s appointment as
CFO of Ravin, which was assented to by the Respondent’s Directors,
but not signed by the Appellant’s Directors. Things reached a head on
31.01.2012 when the employees of the company went on a strike at
Ravin’s Akruti office. By February 2012, the Appellants and
Respondent No.1 were at loggerheads, as a result of which
Respondent No.1 issued a request for arbitration in terms of clause 27
of the JVA, claiming that the Appellants had committed ‘material
breaches’ of the JVA, inter alia, by ousting Respondent No.1 from the
control of Ravin altogether. On 26.03.2012, the Appellants responded
to the request for arbitration and included several counter claims. Each
party claimed that the other had committed material breaches, as a
result of which the successful party in the arbitration would be entitled
10
under the JVA to buy out the other party at a 10% premium or discount
(as the case may be). Given the fact that the JVA required service of a
‘Determination Notice’ which alleged material breaches, such notice
was served by Respondent No.1 on the Appellants on 26.03.2012.
Sixty days from this date, called a ‘Rectification Period’ under the JVA,
notice was given by the Respondent No.1 to the Appellants to
remedy/rectify the alleged breaches. Further time even beyond the
sixty days, i.e. until 06.07.2012 was given, but according to
Respondent No.1, none of the breaches were remedied. As a result,
on 06.06.2012, the LCIA appointed a sole arbitrator - one Mr. David
Joseph QC - to adjudicate the dispute between the parties.
7.An early skirmish was contained in a letter dated 07.06.2012, alleging
that the learned arbitrator was conflicted, as he had been engaged as
counsel by Respondent’s advocates, Bharucha and Partners, in
another unconnected matter. However, on 08.06.2012, Bharucha and
Partners wrote a letter making it clear there was no such conflict. The
sole arbitrator also denied any such conflict. The LCIA Registry
informed the Appellants that they could challenge the appointment of
the sole arbitrator under the LCIA Rules if they so desired. The
Appellants, however, gave up the right to any such challenge. As a
result, on 04.07.2012, Respondent No.1 filed its Statement of Claim
before the learned sole arbitrator. On 09.09.2012, the Appellants then
11
filed their statement of defence and counter claims. On 28.09.2012,
Respondent No.1 filed its rejoinder and opposition to the counter
claim.
8.Meanwhile, various procedural orders were passed by the learned
arbitrator for production of documents etc. A hearing then took place in
December 2012 on questions relating to the construction of various
clauses of the JVA and jurisdictional issues raised by Respondent
No.1 in respect of certain counter claims of the Appellants. Deciding
these issues, by what was called the ‘First Partial Final Award’ dated
15.02.2013, the sole arbitrator delineated the scope of the first award
stating that it was restricted only to issues of interpretation of the JVA
and questions of jurisdiction, and not to the merits of either the claims
or counter claims made. In particular, the sole arbitrator construed
clause 21.1 of the JVA as follows:
“82. This then brings directly into question the scope
and meaning of the words used in Clause 21.1 when
each of the Claimant and the First Respondent agreed
that it would not directly or through its Affiliates “invest,
acquire or participate in the Cable Business in India
save through the Company in accordance with this
Agreement”.
83. The Tribunal concludes that these words
themselves do not prohibit the Claimant from selling
cables directly in India. Such direct sales might still
amount to a breach of Clause 8 or indeed Clause 20
of the JVA, but direct sales as a stand-alone activity is
not an investment, acquisition or participation in the
Cable Business in India.
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84. It seems to the Tribunal that each of these
expressions connotes different forms of long term
engagement, arrangement or commitment involving
either an injection or exchange of capital or know how
on the part of the investor, acquirer or participator in
the sphere of the activities identified by the
compendious definition of Cable Business in India.
85. A person who concludes a contract of sale of
goods to another counter-party is not in accordance
with ordinary parlance investing, acquiring or
participating in the Cable Business in India.
86. Therefore, the Tribunal concludes that on a true
construction of the JVA simply by applying the ordinary
meaning of the words deployed together with the
contractual definition, the Respondents do not
succeed in their primary submission namely that the
conclusion of one or more contracts of sales of cables
directly in India by the Claimant itself or through its
subsidiaries constituted the investment, acquisition or
participation in the Cable Business in India contrary to
the terms of Clause 21.1 of the JVA.
xxx xxx xxx
93. In summary therefore contracts of sale for cables
within the definition of Cable Business concluded
directly by the Claimant or its affiliates and otherwise
than through Ravin do not of itself constitute a breach
of Clause 21.1.
94. The conclusion of a series of such contracts might,
however, depending on the facts, constitute a breach
of Clause 8 or Clause 20 of the JVA. Yet further, the
Tribunal does not rule out the possibility of the
Respondents alleging and proving some kind of
investment or participation which consist of some kind
of long term contractual arrangement itself involving
sale, export, import or distribution. Nothing stated
herein, however, in any way decides or considers the
materiality of any such allegation or the consequences
of any such breach even if proven.”
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9.Insofar as the parent company of Respondent No.1 (one Prysmian
SA) had made a global acquisition of the ‘Draka Group’ in
February/March 2011, which included - as one out of 60 companies
belonging to the Draka Group - one ‘Associated Cables Private
Limited’ (hereinafter referred to as “ACPL”), which was an Indian
Company doing business in India, the learned arbitrator held:
“108. The Tribunal is once more careful to make it
clear that these pleaded allegations have not been
proved yet. The proof of these allegations is left to be
explored at the substantive merits hearing.
Nevertheless, on the basis of the parties’ respective
pleaded cases, the Tribunal concludes that on a true
construction of Clause 21, the wider acquisition by
Prysmian Spa of Draka, which in turn holds a 60%
shareholding in ACPL, is capable of amounting to an
acquisition in the Cable Business in India through an
Affiliate of the Claimant in circumstances where it is
not disputed that Prysmian Spa is another person
which Controls the Claimant. Equally, the continued
carrying on of business in India through ACPL is
capable of amounting to the participation in the Cable
Business in India through an Affiliate of the Claimant;
namely through another person, ACPL. Although there
has not been any proof of this question, there would at
least appear to be some evidence on which the
Respondents might contend that ACPL is Controlled
by the same person, namely Prysmian Spa, who
directly or indirectly Controls the Claimant so as to
come within the parameters of sub-paragraph (c) of
the definition of Affiliate.”
10.The learned arbitrator then construed clause 23, which speaks of
‘material breaches’ by the parties, as follows:
“132. The Tribunal’s conclusions are as follows:
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1)Clauses 23.1 and 23.2 do require the giving of a
Determination Notice of an Event of Default by
the Non Defaulting Party, if indeed the Non
Defaulting Party wishes to make complaint, and
if, ultimately, the Non Defaulting Party wishes to
invoke the provisions of Clauses 23.4 and 23.7,
even in circumstances where the Non Defaulting
Party contends that the material breach is
irremediable;
2)Clause 23.3 does require the Non Defaulting
Party to give the Defaulting Party a period of 60
days, the Rectification Period, to rectify the
Event of Default even in a case where the Non
Defaulting Party alleges that the Event of Default
is irremediable. The only exception to this in
Clause 23.3 is with respect to what might be
called events of insolvency, which amount to
Events of Default;
3)Excluding the cases of insolvency events, which
are expressly exempted, the service of a written
EOD Notice pursuant to Clause 23.4 must be
upon the expiry of the Rectification Period;
4)Adapting one of the principal hypothetical
examples given by the Claimant’s counsel in the
course of its submissions, if a Non Defaulting
Party gives a Determination Notice to the
Defaulting Party identifying material breach (1)
but the Defaulting Party has in fact concealed
material breach (2) and in any event does not
rectify one or both, then the Non Defaulting Party
when it gives its EOD Notice under Clause 23.4
and then subsequently seeks to justify its EOD
Notice in arbitration can rely upon both the un-
rectified material breach (i) and/or material
breach (2) if it is subsequently discovered.
This is because a concealed, but subsequently
discovered, Event of Default which has not been
rectified at the end of the Rectification Period is
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still an un-rectified Event of Default for the
purpose of Clause 23.4;
5)Equally, if a Defaulting Party has not rectified a
concealed Event of Default at the end of a
Rectification Period, then, it is a matter which
can be relied upon by the Non Defaulting Party
under Clause 23.7, so to give rise to the
deprivation or alteration of rights set out therein;
6)An Event of Default is defined as a material
breach of any provisions, obligations, covenants,
conditions, and undertakings. The definition of
an Event of Default is not conditional upon the
giving of a Determination Notice. The
consequences, however, under Clause 23 do
depend upon the giving of a Determination
Notice and expiry of a Rectification Period;
7)Notwithstanding the provisions of Clause 23 and
Clause 23.4, in particular with regard to Events
of Default and Determination Notice, the Non
Defaulting Party in addition possesses all the
rights to damages and performance expressed
in Clause 23.6;
8)It remains open for argument, and the Tribunal
makes no decisions as to whether a party can
give a Determination Notice to the other party, if
in fact at the time of the giving of the notice, the
party giving the notice is itself in material breach.
This question was raised by the Tribunal in the
course of oral submissions, but has not been
fully addressed by the parties, and, indeed, is
probably best addressed at the full merits
hearing.”
11.Insofar as the arbitrator’s ruling on jurisdiction was concerned, it was
held that a dispute regarding the right to register the ‘Ravin’ trademark
falls outside the scope of the arbitration clause under the JVA. He
further held that the trademark licence agreements contained
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arbitration clauses which provided for disputes to be referred to
arbitration in Milan, Italy under Italian law, and this being the case, any
dispute in relation to these agreements would be outside the ken of
the arbitration clause contained in the JVA.
12.The ‘Second Partial Final Award’ dated 19.12.2013 then dealt with
which of the parties materially breached the terms and conditions of
the JVA. The claims, in this respect, made by Respondent No.1, were
disposed of as follows:
“199. The Tribunal’s findings and conclusions in
relation to the particulars of the Claimant’s allegations
of material breach are set out below. The Tribunal
finds that:
1)The Respondents interfered with the proper and
effective functioning of the CEO by refusing to
implement and/or by preventing the
implementation of the Board of Directors’
resolution empowering the CEO to operate
Ravin’s bank accounts in material breach of JVA
Clauses 12 and/or 8 and/or 20.1.2;
2)in refusing to pass resolutions, whether at a
Board meeting or by circulation, to appoint the
Claimant’s nominee as the CFO of Ravin the
Respondents were not in material breach of the
JVA;
3)the Respondents employed Ms. Mathure and
created a false record with regard thereto in
material breach of JVA Clauses 12 and /or 8
and/or 20.1.2;
4)the Respondents denied the HR Director and the
CEO full and unconditional access to the HR and
payroll data systems of Ravin in material breach
of JVA Clauses 12 and/or 8 and/or 20.1.2;
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5)the Respondents refused to report to the or
attend management meetings convened by the
CEO in material breach of JVA Clauses 12
and /or 8 and/or 20.1.2;
6)when the incidents of 12 and 13 January 2012
and 4 February 2012 are considered in isolation
there is insufficient evidence to conclude that
there has been a material breach by the
Respondents. When the incidents are
considered together and set in their proper
context the Tribunal concludes that they form
part of a pattern of the Respondent’s conduct
which constituted a material breach of the JVA.
As such, there is a material breach in relation to
the Claimant’s combined allegations that the
Respondents incited staff to surround,
sequester, heckle, humiliate and threaten Mr
Esposito and Mr Kamdar on those dates;
7)the Respondents encouraged and failed to
prevent Company employees from going on
strike on 31 January 2012 and the Respondents
encouraged and incited indiscipline and
breach of Company policies and procedures by
supporting Mr Dhall in his insubordination and
defiance of direct orders of Mr Esposito and Ms
Farise in material breach of JVA Clauses 12
and/or 8 and/or 20.1.2;
8)see (7) above;
9)the Respondents were not in breach of the JVA
by refusing to convene a Board meeting at short
notice;
10)Mr Karia’s letters to the FRRO were hand-
delivered on 29 February 2012 and therefore
cannot be considered in relation to the events
constituting material breach as alleged in the
Request dated 27 February 2012. Nevertheless,
the Tribunal finds that the letters to the FRRO
are consistent with Mr Karia’s modus operandi
and support the Tribunal’s other findings of
material breach.
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(4) Rectification of the Events of Default found to have
been committed by the Respondents
200. The Claimant submits that none of the alleged
material breaches were rectifiable and, in any event,
by the end of the Rectification Period, i.e. 27 April
2012, and by the end of the extended period for
rectification, i.e. 6 July 2012, the Respondents had not
rectified any of their breaches. On the contrary, the
Claimant submits that during the period between 28
February 2012 and 6 July 2012, the Respondents
continued to breach the JVA by conduct which was
calculated to destroy the relationship of trust and
confidence between the parties and completely
remove or render redundant any element of Claimant
control over Ravin. As stated above, however, these
post-Request breaches are not the subject of this
Award (see, inter alia, Claimant’s CS §§730-737).
201. The Respondents do not contend that they
rectified any of the alleged breaches of the JVA by 6
July 2012.
202. The Tribunal concludes that, in relation to the
material breaches committed by the Respondents, the
Respondents failed to rectify those breaches within the
extended period for rectification, i.e. by 6 July 2012.”
13.So far as the counter claims of the Appellants were concerned, the
arbitrator dealt with the effect of Prysmian SA acquiring ACPL, which
was a competing business of Ravin [through Prysmian’s acquisition of
the Draka group, of which ACPL was a subsidiary]. The sole arbitrator
first dealt with the reaction of Shri Karia on the Draka takeover
together with Shri Karia’s evidence as follows:
“233. The Tribunal finds the many changes to the
story of Mr Karia in this regard to be of considerable
significance. In truth, Mr Karia did know as long back
as July 2009 of the ACPL/Draka connection. When the
19
merger between Draka and Prysmian was announced
Mr Karia did understand that Prysmian had acquired a
controlling stake in ACPL as he fully accepted in cross
examination. Mr Karia had that knowledge in
November 2010. Nevertheless, Mr Karia did not
complain of any material breach to the JVA under
Clause 21. The Tribunal further accepts the truth of the
evidence given by Ms Farise that first of all when Mr
Karia heard of her appointment to the ACPL Board
some time in late 2011 possibly December, Mr Karia
did not complain but congratulated her (§18,EI/5/28).
This fits in with his earlier congratulatory email to Mr
Battista. Nevertheless by the time one gets to
February 2012 Mr Karia had completely changed his
tune and saw Ms Farise’s appointment to the ACPL
as a device, an excuse, to try to derail her carrying on
as CEO on the Ravin Board and thus further his
campaign not to cede day to day control of Ravin to
the Claimant. The Tribunal accepts the evidence given
by the Claimant witnesses on this. Mr Karia has
changed his tune. The Tribunal rejects the veracity of
the story originally being told by Mr Karia as not only
inconsistent with the documents before the Tribunal
but also mutually inconsistent with his evidence in
cross-examination.
234. The Tribunal has spent some time analysing this
material because Mr Karia’s contemporaneous
reaction is highly instructive in determining whether
this is really to be analysed as a serious or material
breach with serious adverse effect or rather as a
pretext, an excuse. The Tribunal concludes it is the
latter not the former. The Respondents somewhat
bravely in their Closing Submissions assert that the
Tribunal is not allowed to have regard to this material
because the Claimant has not pleaded waiver or
affirmation. This submission is completely rejected. As
is clear from the authorities referred to above whether
a breach is material or not is determined by reference
to all the relevant facts and this will include a parties’
reaction to the events at the time.
xxx xxx xxx
20
237.The Tribunal ultimately concluded that the
Respondent did not adduce any credible evidence of
actual serious adverse impact.
238.It is true that there was some evidence (albeit
mainly dating back to 2008-2009) of occasional
instances of both companies tendering for the same
business. Yet there was no reliable evidence that
business had been lost from Ravin to ACPL post the
Draka acquisition, or that there had been any diversion
of business from Ravin to ACPL or that there had been
any targeting of Ravin’s business by ACPL or indeed
vice versa.
239. In the end the two companies operate in a very
different space. ACPL is a small specialist cable
business with a turnover of € 7-7.5m per annum. This
is approximately 10% of that of Ravin. ACPL operates
principally in the area of instrumentation cables. Ravin
operates principally in the area of power and control
cables. Yet further, a large part of the small turnover
of ACPL constitutes exports from ACPL to its Omani
shareholder. This renders the notion of serious
adverse harm by reference to ACPL’s turnover even
more remote.
240. The contemporaneous management documents
at Ravin did not show that Ravin considered ACPL as
one of its competitors or indeed operating in the same
space. When Mr. Karia was asked about this in cross
examination, he said that when a company examines
its competitors it does not make a list down to the 50
th
or 60
th
competitor (Day 9, p.82). This gives an
eloquent indication of how far down the list Ravin
would have considered ACPL.
241. Equally, the fact that a list of company names
was identified and relied upon by the respondent to
show that Ravin and ACPL sell cables to some of the
same companies is stretching a point beyond where it
can naturally go. This does not yield an answer of
material breach. The evidence adduced by the
Respondents is not of a quality which would enable
21
the Tribunal to conclude that a breach had been
committed with serious adverse effect.
242. The Tribunal further makes mention of the
assistance it received from two distinguished experts
of long standing participation in the market; Messrs
Honavar and Hargopal. The Tribunal did get some
benefit from this evidence in the clear explanation of
different types of cables together with samples and
this explanation was also helpfully provided in part by
Mr. Karia himself. Nevertheless, once more this
evidence somewhat missed the point. It is not enough
to establish material breach to identify certain types of
cables produced and sold by each company. There
was no reliable analysis advanced by the
Respondents’ evidence of serious adverse effect
either on Ravin today or likely in the future.
243. Finally, the Tribunal for completeness makes it
clear that it completely rejects the further allegation
that ACPL had been acquired in bad faith by the
Claimant with a view to destroying value in Ravin or
that it has since pursued the operations of ACPL with
that aim in view.
244. There is quite simply no credible evidence to
support such an allegation and indeed the Tribunal is
of the view that it is an allegation which should not
have been advanced.”
14.So far as the counter claim dealing with direct sales in India which
competed with the business of Ravin, and agency/distribution
agreements, the arbitrator held as follows:
“252. Essentially the Respondents have not
established that the Agency Agreements on which they
place reliance, involved such an arrangement,
commitment or engagement as stated in the First
Partial Award. Indeed the Respondents have not even
addressed the requirement identified in paragraph 84
of the First Partial Final Award but instead focused on
the length or duration of the relationship and whether
22
or not each relationship was exclusive or non-
exclusive. This is not sufficient. For the avoidance of
doubt the Tribunal concludes that there was no
satisfactory basis on which it could be concluded that
these Agency Agreements involved an injection or
exchange of capital or know how on the part of the
investor, acquirer or participator. They are best
analysed as classic sales distribution/agency
agreements pursuant to which an agent receives a
sales commission in return for the promotion and
conclusion of identified types of sales in India.
xxx xxx xxx
273. Making every conceivable allowance in favour of
the Respondents, the Tribunal concludes that the
Respondents (perhaps for understandable reasons
following the First Partial Final Award) have tried to
alter their case and now advance a case that the fact
of direct sales amounts to a material breach of
Clauses 8 and 20 of the JVA. That was not advanced
in the Determination Notice or in its pleaded case and
is not open to the respondents.
(I) No material breach in any event.
274. Yet further, even ignoring the limitations of the
Determination Notice and pleadings, the Tribunal yet
further concludes that the Respondents have not in
any event succeeded in showing material breach of
Clauses 8 or 20 on the facts of the case.
275. The Tribunal concludes that the Respondents’
analysis is too simplistic to be of any real utility in
analysing the issue.
276. The Respondents start by referring to a total
644m of sales which were made directly into India by
various Prysmian affiliates.
277. Those sales, however, were for all practical
purposes made up of sales of telecom cables,
industrial special cables, automotive cables, network
and component and services. Ravin did not
manufacture those types of cables. Indeed over 85%
of the sales came from two affiliates manufacturing
23
telecom cables, which Ravin did not manufacture and
had no experience in selling either. Indeed the Tribunal
accepts the evidence of Ms Farise and Mr. Koch and
Mr. Karve on this issue (see, inter alia, §§5-8,
E(I)/10/56-57, §23, E(I)/26/206, §23, E(I)/26/207, §§18-
32. E(I)/23/184-186, 11 December 2012 hearing, pp.
134-140, §46, E(I)/17/92, Day 2, pp. 83-86, §18 of,
E(I)/24/189).This renders the whole argument of
diversion of sales or breach of good faith by virtue of
these direct sales somewhat academic.
278. Indeed these figures illustrate exactly why the
Respondents placed so much emphasis on their
argument that the mere fact of sales was a breach
irrespective of anything else. This was once more
how it was put by Mr. Salve SC in his oral closing
argument (Day 10, pp. 183-185) the Tribunal has,
however, found against the Respondents on this point.
279. The Tribunal concludes that the Respondents
have not shown any material breach on the part of the
Claimant in the development of Ravin’s business in
accordance with clause 8 or any breach of the good
faith obligations under Clause 20 with respect to direct
sales.”
15.So far as the breach of confidentiality by Respondent No.1 was
concerned, the counter claim of the Appellants was rejected thus:
“284. Ms. Farise was quite clear in her First Witness
Statement of 20 July 2012 (E(I)/5/29) at paragraph 22
(j) – (I) that she was a non-executive director at ACPL,
that she was quite aware of her responsibilities to both
companies and did not at any time pass on
confidential or other information to ACPL from Ravin or
from ACPL to Ravin.
285. The Respondents did not cross examine Ms
Farise on this important evidence. It is accepted by the
Tribunal.
286. The Respondents instead in their Closing
Submissions do not address the question of evidence
of actual breach but instead try to build up a case of
24
surmise or inference. The Respondents rely upon the
fact that Prysmian referred to ACPL and Ravin as part
of “Prysmian India”. They also rely upon the fact that
they contend that the appointment of Ms Farise to
ACPL was covertly carried out. The first point leads
nowhere. It is not evidence of breach of the JVA. The
second point is in any event rejected by the Tribunal.
As has been referred to above in the context of the
analysis of the Claimant’s allegations of material
breach, the Tribunal finds that Ms. Farise did inform
Mr. Karia of her appointment at ACPL. In the first
instance Mr. Karia congratulated her and only objected
later as the power struggle grew and this was used as
a weapon in order to try to have Ms. Farise excluded
from the Ravin Board.”
16.So far as multiple acts of alleged mismanagement by Respondent
No.1 in breach of clauses 8 and 20 of the JVA were concerned, the
learned sole arbitrator dealt with this as follows:
“290. The remaining allegations can be seen as
essentially the flip side of the Claimant’s allegations of
material breach directed at the Respondents. Three
examples will suffice for present purposes:
i.the strike orchestrated by the Respondents in
response to the suspension of Mr. Dhall;
ii.the attendance or non-attendance of Claimant
nominees at the Akruti offices;
iii.the circumstances surrounding the appointment
of the CEO and CFO of Ravin.
291. Given the findings made by the Tribunal in favour
of the claimant’s allegations of material breach it
naturally follows that the Respondents do not succeed
in these allegations of mismanagement.
292. The Respondents were themselves in material
breach with regard to the whole conduct surrounding
Mr. Dhall’s appointment of Ms. Mathure and the so
called authorisation form. The Claimant was not in
25
material breach in suspending Mr. Dhall. Far from it.
The Respondents, however, were plainly in material
breach by their reaction to this suspension effectively
leading to a one day strike.
293. The question of the attendance of Claimant
nominees at the Akruti office is another chapter of the
saga in which the Respondents do not emerge without
serious criticism. As is clear from this Award the
Respondents engendered a toxic atmosphere at Akruti
in January 2012 (even in its fire stricken state) and
such was the situation at the ground that it was not
really possible for Claimant nominees to attend without
fear of their own safety.
294. Lastly, the circumstances surrounding the
appointment of the CEO and CFO does not give rise
to any conceivable material breach on the part of the
Claimant. The claimant was entitled to nominate a
CFO and the CEO. They did so. The Respondents did
not oppose the appointment of Ms Farise.
Nevertheless they did obstruct her at every turn once
she was appointed because it became apparent that
she intended pursuant to the JVA to take day to day
control of Ravin and the Respondents did not wish this
to happen. As regards Mr. Brunetti, the CFO, the
Respondents did veto his appointment. This was not a
material breach on their part as it was their right to do
so under Schedule IX to the JVA. Nevertheless it
cannot be said to be a material breach by the
Claimant. That is unsustainable.”
17. Holding thus, the learned sole arbitrator concluded that none of the
counter claims were made out, as a result of which they were all
dismissed.
18.The Third Partial Final Award was delivered on 14.01.2015. Prior to
this award, on 23.06.2014, the Karias, through their legal counsel,
informed the tribunal that they would no longer be represented by M/s
26
Nishith Desai Associates. This was the prelude to Shri Vijay Karia
writing to the LCIA Court on 28.09.2014, a few days before the hearing
fixed before the arbitrator, seeking revocation of the appointment of
the arbitrator, on the ground of alleged lack of impartiality or
independence. At the hearing fixed on 1
st
-2
nd
October 2014, Shri Vijay
Karia did not appear. On 10.10.2014, the LCIA Court communicated to
the tribunal that it had dismissed the challenge made to the arbitrator
on the ground that the said application was made out of time under the
provisions of the LCIA Rules. The award then went on to address
some of the written submissions dated 02.06.2014 of Shri Vijay Karia.
The learned arbitrator explained how he was not ‘functus officio’ with
respect to the relief sought. He further went on to state that he could
not now review the Second Partial Final Award as he had no
jurisdiction to do so, and made it clear that he did not go beyond the
claims submitted by the claimant to him, or beyond the scope of the
JVA. The award also recorded the fact that the present Appellants did
not take the necessary steps to appoint a valuer, as a result of which
KPMG refused to go ahead with the valuation. As Deloitte was the only
other valuer, Deloitte was then requested to go ahead with the
valuation. The Third Partial Final Award then declared as follows:
“1. The Respondents are the Defaulting Party under
clause 23.7 of the JVA;
27
2. All rights of whatsoever nature conferred on the
Respondents and specifically Mr. Karia under the JVA
have ceased to be effective;
3. Any reference in the JVA to any rights of the
Respondents and specifically Mr. Karia including the
requirement of consent or approval of Respondents
and specifically Mr. Karia stand omitted;
4. The Respondents are prohibited from exercising or
attempting to exercise any rights under the JVA
including in particular any representation on the Board
of the Company;
5. The date for the assessment of the Discounted
Price be 30 September 2014 and that this date be
substituted for the finding in paragraph 335(4) of the
Second Partial Final Award, which date and finding the
parties agreed would be remitted back to the Tribunal
for further consideration;
6. The Tribunal reserves the matters set out in
paragraph 31 above, which includes the costs of the
arbitration.
7. Notwithstanding paragraph 6 above, the Tribunal
records the further costs of the arbitration (other than
the legal or other costs incurred by the parties
themselves and other than those costs recorded in the
Second Partial Final Award) up to the date of this
Award, which have been determined by the LCIA
Court, pursuant to Article 28.1 of the applicable (1998)
Rules, to be as follows:
LCIA’S administration charge£6,353.33
Tribunal’s fees £29,800.00
Total further costs of the arbitration£36,153.33
8. The Tribunal’s previous Procedural Orders and
Interim Relief as amended by Procedural Order No.12
are to continue in effect until further Order.”
19.By the Final Award dated 11.04.2017, the learned sole arbitrator dealt
with why and how Deloitte was appointed as the valuer of the shares;
28
why Ravin’s 49% stake in ‘Power Plus’ was excluded for purposes of
valuation as clause 17.1 of the JVA and the formula stated in Schedule
X would have to be strictly followed; and as to what then is the fair
market value of the shares of the Appellants in Ravin that was to be
bought out by the Respondent No. 1.
20.Ultimately, the final relief granted by the said award was as follows:
“FINDS, HOLDS, ORDERS AND DECLARES as
follows:
1)The Respondents do transfer to the Claimant
10,252,275 shares held by them to the Claimant
the Discounted Price of INR 63.9 per share
aggregating to INR 655,200,000.
2)The Third Respondent, Mr. Karia (who holds
Power of Attorney executed by each Existing
shareholder) do forthwith and without delay
execute the requisite transfer forms for transfer
of 10,252,275 shares in favour of the Claimant.
3)The Third Respondent and the Twelfth
Respondent, Mr. Piyush Karia, who purport to be
and continue to act as director of the Company,
do forthwith and without delay:
a)Convene and hold a meeting of the Board
of Directors of the Company not later than
21 days after the date of this Final Award
limited to noting and registering the
transfer of 10,252,275 shares from the
Respondents in favour of the Claimant;
b)Table before that meeting the executed
transfer forms;
c)Vote in favour of the resolution / motion to
register the transfer of the 10,252,275
29
shares in favour and in the name of the
Claimant; and
d)On registration of the transfer of the shares
as aforesaid to resign from the Board of
the Company as Chairman and Managing
Director and as Executive Director of the
Company respectively.
4)Each of the Respondents and particularly the
Third and Twelfth Respondents, Mr. Karia and
Mr. Piyush Karia, are restrained from acting
themselves or through servants or agents, from:
a)Claiming or attempting to exercise or
exercising any rights whatsoever under the
JVA in relation to the Company including
but not limited to representation on the
Board of the Company or their consent or
approval being required in any matter
relating to the Company whether at the
Board of the Company or at meetings of
the shareholders of the Company.
b)Claiming or attempting to claim, or
representing or attempting to represent,
the Company in any matter and in any
manner whatsoever.
c)Using or attempting to use any assets,
properties or facilities of the Company
including but not limited to the Company’s
offices and communication facilities.
5)The third and Twelfth Respondents, Mr. Karia
and Mr. Piyush Karia, themselves or through
servants or agents are restrained from acting, or
claiming or holding themselves out to be the
Chairman or Managing Director and as
Executive Director, respectively, or directors of
the Company (except for the limited purpose as
set out in (3)(above)).
6)The Respondents jointly and severally do pay to
the Claimant the legal and sundry disbursements
30
costs of and relating to this Arbitration in the sum
of US$2,317,199.82.
7)The Respondents are to bear and, insofar as not
already paid, to reimburse the Claimant the total
costs of the Arbitration as determined by the
LCIA Court pursuant to Article 28.1 of the LCIA
Rules, which are £ 283,043.71.
8)All other claims of the Claimant and
Respondents are dismissed.”
21.It is important to note that no challenge was made to the aforesaid
award under the English Arbitration Law, though available. It is only
when the aforesaid award was brought to India for recognition and
enforcement that objections to the said award were made under
Section 48 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as the “Arbitration Act”).
22.The learned single Judge, in the impugned judgment, recorded the
arguments of both parties, dealt with the allegation of bias against the
arbitrator and all other objections raised by the Appellants to the
award, but finally found that the award must be recognised and
enforced as the objections do not fall within any of the neat legal
pigeonholes contained in Section 48 of the Arbitration Act.
23.As Section 50 of the Arbitration Act does not provide an appeal when a
foreign award is recognised and enforced by a judgment of a learned
Single Judge of a High Court, the Appellants have appealed against
the said judgment under Article 136 of the Constitution of India.
31
24.Before referring to the wide ranging arguments on both sides, it is
important to emphasise that, unlike Section 37 of the Arbitration Act,
which is contained in Part I of the said Act, and which provides an
appeal against either setting aside or refusing to set aside a ‘domestic’
arbitration award, the legislative policy so far as recognition and
enforcement of foreign awards is that an appeal is provided against a
judgment refusing to recognise and enforce a foreign award but not
the other way around (i.e. an order recognising and enforcing an
award). This is because 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 on the extremely narrow grounds contained in
Section 48 of the Act and which have been rejected. This is in
consonance with the fact that India is a signatory to the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, 1958
(hereinafter referred to as “New York Convention”) and intends -
through this legislation - to ensure that a person who belongs to a
Convention country, and who, in most cases, has gone through a
challenge procedure to the said award in the country of its origin, must
then be able to get such award recognised and enforced in India as
soon as possible. This is so that such person may enjoy the fruits of an
award which has been challenged and which challenge has been
turned down in the country of its origin, subject to grounds to resist
32
enforcement being made out under Section 48 of the Arbitration Act.
Bearing this in mind, it is important to remember that the Supreme
Court’s jurisdiction under Article 136 should not be used to circumvent
the legislative policy so contained. We are saying this because this
matter has been argued for several days before us as if it was a first
appeal from a judgment recognising and enforcing a foreign award.
Given the restricted parameters of Article 136, it is important to note
that in cases like the present - where no appeal is granted against a
judgment which recognises and enforces a foreign award - this Court
should be very slow in interfering with such judgments, and should
entertain an appeal only with a view to settle the law if some new or
unique point is raised which has not been answered by the Supreme
Court before, so that the Supreme Court judgment may then be used
to guide the course of future litigation in this regard. Also, it would only
be in a very exceptional case of a blatant disregard of Section 48 of
the Arbitration Act that the Supreme Court would interfere with a
judgment which recognises and enforces a foreign award however
inelegantly drafted the judgment may be. With these prefatory remarks
we may now go on to the submissions of counsel.
25.Dr. Abhishek Manu Singhvi, Senior Advocate, led the charge so far as
the Appellants are concerned. Ably assisted by Shri Nakul Dewan on
the law, the learned Senior Advocates argued a large number of points
33
which they sought to put into three legal pigeonholes, namely, the
pigeonhole contained in Section 48(1)(b) of the Arbitration Act, and
that the foreign award would be contrary to the ‘public policy of India’
[as under Section 48(2)(b) of the Arbitration Act] in two respects: (1)
that it would be in contravention of the fundamental policy of Indian
law; and (2) that in several respects it would violate the most basic
notions of justice.
26.Dr. Singhvi’s arguments were as follows:
(1)That the arbitral tribunal entirely failed to deal with the
Appellants’ counter claim pertaining to the incorporation of one
Jaguar Communication Consultancy Services Private Limited
(hereinafter referred to as “Jaguar”), which would show that, in
material breach of the non-compete provisions of the JVA, this
company was set up in India by Respondent No.1 to do business
in the manufacture and sale of cables, in competition with the
joint venture company, i.e. Ravin.
(2)That the tribunal failed to make a determination on the
Appellants’ counter claim that Respondent No.1’s efforts to oust
the Appellant No.1 and his family from Ravin amounted to a
breach of the JVA.
(3)That the tribunal failed to make any determination on the
Appellants’ counter claim that Respondent No.1 made a
surreptitious attempt to register the Ravin trademark in its own
34
name, which would be a breach of the material clauses of the
JVA.
(4)That the tribunal has acted contrary to the admissions made by
expert witnesses of both parties, both of whom stated that ACPL
- a company acquired by the parent of Respondent No.1 - was in
competition with Ravin, and that this would therefore vitiate the
award. In addition, since the most material evidence with regard
to the acquisition of ACPL was ignored by the tribunal, this would
also vitiate the award. Insofar as ACPL was concerned,
Respondent No.1’s failure to produce documents that were with
ACPL ought to have led to an adverse inference being drawn
against Respondent No.1, which was not done by the learned
arbitrator.
(5)The tribunal was perverse in considering the issue of material
breach in that it applied the maxim de minimus non curat lex to
ACPL, being a small specialist cable business.
(6)That a perverse interpretation of the JVA was given by the
learned arbitrator in the First Partial Final Award of clause 21.1,
stating that it only prohibited long-term arrangements and
engagements, which was a condition added by the arbitrator
himself into the said clause.
(7)So far as direct sales of Respondent No.1 in India were
concerned, the tribunal ignored material evidence and
admissions of Respondent No.1.
35
(8)That the tribunal’s analysis of the contemporaneous conduct of
the parties was both selective and perverse, that the
consideration of the evidence of key witnesses was also
selective and perverse.
(9)That Deloitte was a conflicted valuer and should not have been
appointed at all. The valuer adopted a course for valuation that
is contrary to both parties’ position, in that, Ravin’s 49%
shareholding in Power Plus which had been valued by another
valuer ‘BDO’ at INR 563 crores was completely ignored. What is
very important is that the tribunal had acted contrary to the
parties’ submissions in arriving at the valuation date, as the said
date should have been the date closest to the date of the actual
sale of shares, instead of which, a 2017 award took a date of
September 2014 which date in any case expired by the end of
December 2014.
(10)That the ruling contained in the First and Second Partial Final
Awards regarding interpretation of clause 21 of the JVA were
inconsistent and irreconcilable.
(11)That a private communication had been made of the
outcome of the arbitration by the tribunal two months prior to the
award, published through an agent of Respondent No.1, one M/s
Gilbert Tweed Associates, which would show that Respondent
No.1 knew that the Second Partial Final Award would be in its
36
favour. The mere undertaking to terminate the engagement of
M/s Key2People as the agent, who in turn had employed M/s
Gilbert Tweed Associates, and an apology made by
Respondent’s counsel, ought not to have been held to have
been sufficient to condone this lapse by the learned sole
arbitrator.
(12)That the award is in contravention of the Foreign Exchange
Management Act, 1999 (hereinafter referred to as “FEMA”) in
that it directed the sale of shares of Ravin at a 10% discount,
which would be in the teeth of rule 21(2)(b)(iii) of the Foreign
Exchange Management (Non-Debt Instrument) Rules, 2019
(hereinafter referred to as “the Non-Debt Instrument Rules”).
27.Shri Nakul Dewan cited a large number of judgments largely from
Singapore, Hong Kong and the U.K. to buttress his submission that an
award which fails to deal with or make any determination on the claim
of a party ought to be set aside on the ground contained in Section
48(2)(b) of the Arbitration Act, as it would be in breach of the audi
alteram partem principle, and also on the ground that it would shock
the conscience of the court, being contrary to a basic notion of justice
in this country. He also argued that where an award is directly contrary
to admitted facts, it would be perverse, and hence liable to be set side.
Also, where a party is unable to present its case on account of the
opposite party’s wilful failure to produce documents ordered, and the
37
tribunal’s failure to draw an adverse inference therefrom, on most
material aspects of the case, would render such award unenforceable.
28.He also cited judgments on awards which treat parties unequally in
that they adopt disparate thresholds for determining material breach,
as a result of which an award read as a whole would be vulnerable on
account of egregious bias. Also, a private communication of the
outcome of the arbitration by the tribunal to one party to the exclusion
of another would fatally undermine the independence and impartiality
of the arbitration process, rendering the award vulnerable on the
ground of bias.
29.Both Dr. Singhvi and Mr. Nakul Dewan, after setting out all the
aforesaid grounds and case law supporting such grounds, have
attacked the impugned High Court judgment, stating that a large
number of these points were not answered by the High Court at all,
and when answered would show that even where there was bias,
perversity and breach of natural justice, all these grounds were merely
brushed aside, and therefore no real determination of all the points
argued before the High Court was at all undertaken by the learned
Single Judge. As a ‘without prejudice’ argument, Dr. Singhvi exhorted
us to modify the impugned award, in case he were to fail on all other
arguments, to state that the valuation date of 30.09.2014 ought at
least to be the date of the judgment delivered in this case, as
otherwise the sale of the Karia block of shares in Ravin would be at a
38
tremendous undervalue. This he exhorted us to do under Article 142 of
the Constitution of India.
30.Shri Kapil Sibal, learned senior advocate appearing on behalf of the
Respondent No.1, read to us in copious detail each of the four awards
delivered by the arbitral tribunal. He argued that each and every
aspect of the matter that was argued on both sides was considered in
detail in each of the said awards. He stressed the fact that though
available, no challenge was ever made in the courts in England to the
four awards. He defended the judgment of the learned Single Judge of
the High Court and said that if the awards were read, it would be clear
that the arbitrator adopted an extremely balanced approach, despite
extreme provocation from Shri Vijay Karia, who only started alleging
bias when he realized that the ‘Second Partial Final Award’ relating to
who was in material breach, would be decided against him. Despite
this, the learned arbitrator dispassionately considered every single
claim and counter-claim made by the parties. This being the case,
none of the grounds mentioned in Section 48 of the Arbitration Act
would be available in the form of objections to such well-reasoned and
balanced awards. In particular, Shri Sibal stressed that since the
decision of this Court in Renusagar Power Plant Co. Ltd. v. General
Electric Co. (1994) Supp (1) SCC 644, any interference on the merits
of the decision of the arbitral tribunal would be outside the ken of
39
Section 48 of the Arbitration Act. Shri Sibal stressed the fact that Dr.
Singhvi had argued this matter as if it was a first appeal on merits, and
that each and every ground taken, if properly viewed, was really to
invite this Court to interfere on the merits of the awards, which would
be clearly outside the grounds contained in Section 48 of the
Arbitration Act.
31.Shri Sibal stressed the fact that the central point of this case was as to
who was in material breach of the provisions of the JVA. Once the
learned arbitrator held that it was the Appellants and not the
Respondent No.1 who materially breached the terms of the JVA, in
that post the integration period, the appointed CEO, who was to be in-
charge of the day to day affairs of Ravin, was never allowed to take
over such charge, would make it clear that this most material breach
committed by the Appellants on facts, as held by the learned arbitrator,
could not be interfered with given the parameters of the Court’s
jurisdiction under Section 48 of the Arbitration Act. Once this was so,
everything else followed, as a result of which it was the Respondent
No.1 who was to buy-out the Appellants’ 49% stake in Ravin at a price
arrived at by a well-known independent valuer, Deloitte, at a date that
was correctly fixed by the arbitral tribunal. This being the heart of the
case, all the contentions of Dr. Singhvi raising objections to the four
awards in question must fall, as every argument, though dressed up
40
as arguments falling within three grounds under Section 48, are really
arguments addressing the merits of the case. Without prejudice to this
central argument, Shri Sibal took up every single point that was
argued and answered each point. So far as the Jaguar
Communication Consultancy Services Private Limited point was
concerned, Shri Sibal stated that at no point did the Appellant amend
its counter-claim to include such argument, which was in fact raised
orally as an afterthought at the fag end of the proceedings. Secondly,
as Shri Sibal’s case of ouster was accepted by the arbitral tribunal, the
claim of the Appellants that it was really the other way around was
specifically addressed by the learned arbitrator and dismissed, inter
alia on the ground that ouster was not at all pleaded by the Appellants.
So far as the Ravin trademark is concerned, it is clear that the
Appellant’s own counsel made it clear that he would not be pressing
the point – the point being as to whether it was at all open to go into
registration of trademark of Ravin under separate license agreements
which had separate arbitration clauses for arbitration in Italy. This was
argued by both sides and dealt with by the arbitrator as a jurisdictional
issue which was turned down by the arbitrator stating that the
registration of the Ravin trademark was an issue which would be
outside the JVA and hence not arbitrable. So far as ACPL was
concerned, the learned arbitrator made it clear that Shri Vijay Karia
41
knew all along that ACPL would come to Respondent No.1 as a result
of the ‘Draka acquisition’ and never objected, but in fact congratulated
the Respondent No.1 on making such acquisition. That ACPL was in a
competing business was taken much later as an afterthought, Shri
Vijay Karia admitting in cross-examination that ACPL’s business was
so small that it could be disregarded altogether. Also, Shri Sibal
adverted to a Procedural Order made by the learned arbitrator, in
which it was stated that since ACPL was not a party to the arbitration,
the Appellants could approach the Court in England to get a direction
that ACPL produce the documents asked for by them. This was never
done. Further, Shri Sibal made it clear that ACPL was not a subsidiary
of Respondent No.1, but was an indirect subsidiary of Respondent
No.1’s parent company, consequent upon the ‘Draka acquisition’, with
a separate Board of Directors; and being a different person in law and
fact, who is not a party to the arbitral proceedings, the learned
arbitrator’s Procedural Order, which was never challenged and never
followed, was a complete answer to the contention that an adverse
inference ought to be drawn. So far as the interpretation of the JVA
was concerned, Shri Sibal made it clear that it was interpreted fairly,
given the fact that there was no challenge to any part of the First
Partial Final Award, except the interpretation given to Clause 21.1,
which was an interpretation given by the learned arbitrator keeping in
42
mind the commercial background and commercial efficacy doctrine.
According to Shri Sibal, not only was it a possible interpretation, it was
also a correct interpretation. So far as the direct sales of Respondent
No.1 in India were concerned, the tribunal took into account all the
material evidence and dismissed, after a full hearing, the counter-claim
of the Appellants in this behalf. When it came to the Final Award, Shri
Sibal pointed out that on facts Deloitte was appointed by consent long
after the valuer that was chosen by lots finally stated its inability to
conduct the valuation due to the Appellants dragging their feet in this
behalf. Secondly, such valuation was conducted strictly as per the
formula contained in the JVA, which was Clause 17.1 read with
Schedule X of the JVA. He was at pains to point out that though Power
Plus Company LLC (hereinafter referred to as “Power Plus”) was
mentioned specifically in the JVA, yet nothing about Power Plus was
mentioned in the formula for valuation. Shri Sibal also refuted any so
called inconsistencies in the awards, stating that given the
interpretation of the JVA by the arbitrator in the First Partial Final
Award, all the awards that followed were in accord with the
interpretation so given. He also stated that the arbitrator considered
material breach with an even hand and arrived at the obvious
conclusion on facts that since the CEO was never allowed to function,
it was the Appellants and not the Respondent No.1 who had materially
43
breached the terms of the JVA. Shri Sibal then went into the bogey
raised re M/s Gilbert Tweed Associates. He maintained that the
Respondent No.1 had no idea as to who M/s Gilbert Tweed Associates
was and came to know that the agent, M/s Key2People, who was
employed by the Respondent No.1, had in turn employed M/s Gilbert
Tweed Associates, who published an advertisement to employ certain
persons. From this, to jump to and try to make out a ground that the
arbitrator was biased is a huge leap not warranted either in fact or law.
Shri Sibal then argued that the award, in that it directed a sale of
shares at a 10% discount, did not in any manner contravene the
Foreign Exchange Management Act, 1999 and Rules thereunder. He
took us through the relevant Rules and argued that unlike the Foreign
Exchange Regulation Act, 1973 (hereinafter referred to as “FERA”),
FEMA did not contain Section 47 of FERA which voided agreements
that were made contrary to FERA. According to him, the FEMA regime
is a permissive regime and any violation of the Rules could be
monitored by the Reserve Bank of India by way of a direction of the
sale of the shares without the discount, if at all. In any case, the
Appellants would be estopped from taking this plea, having entered
into a solemn agreement with the Respondent No.1 which they cannot
go against. In any case, at worst, a violation of the Rules made under
FEMA, by which shares would be sold not at market price but at
44
something lower, contrary to the Rules, would also amount to a mere
violation of law, which is far removed from a violation of any
fundamental policy of Indian law, as foreign exchange is coming into
the country and not going out therefrom.
32.Shri K.V. Viswanathan, learned senior advocate appearing on behalf of
the Respondent No. 1, also supported the submissions made by Shri
Sibal. In particular, he dealt with the judgments cited by Shri Nakul
Dewan and cited judgments of his own to show that the parameters
contained in Section 48 of the Arbitration Act for resisting enforcement
of foreign awards are extremely narrow, and the Court can in no
circumstance go into the merits of a foreign award. He was at pains to
point out that as a full hearing had been given and every opportunity
extended by the learned arbitrator to both parties, no ground relatable
to breach of natural justice or any prejudice as a result was made out
on the facts. He then made it clear that public policy must be
understood in the narrow sense as understood and exposited by
Renusagar (supra) and the later decisions of this Court. There was
also nothing in the awards that would shock the conscience of the
Court to attract the most basic notions of justice exception contained in
Section 48.
Enforcement of Foreign Awards under Section 48
45
33.Having heard learned counsel on both sides, it is important to first set
out the relevant parts of Section 48 of the Arbitration Act. Section 48
reads as follows:
“48.Conditions for enforcement of foreign awards.
—(1) Enforcement of a foreign award may be refused,
at the request of the party against whom it is invoked,
only if that party furnishes to the court proof that —
xxx xxx xxx
(b) the party against whom the award is invoked was
not given proper notice of the appointment of the
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case;
xxx xxx xxx
(2) Enforcement of an arbitral award may also be
refused if the court finds that—
(a) the subject-matter of the difference is not capable
of settlement by arbitration under the law of India; or
(b) the enforcement of the award would be contrary to
the public policy of India.
Explanation 1.—For the avoidance of any doubt, it is
clarified that an award is in conflict with the public
policy of India, only if,—
(i)the making of the award was induced or
affected by fraud or corruption or was in violation of
section 75 or section 81; or
(ii)it is in contravention with the fundamental
policy of Indian law; or
(iii)it is in conflict with the most basic notions of
morality or justice.
Explanation 2.—For the avoidance of doubt, the test
as to whether there is a contravention with the
fundamental policy of Indian law shall not entail a
review on the merits of the dispute.”
46
34.One of the first judgments which construed pari materia provisions in
the Foreign Awards Act, 1961 was the celebrated judgment in
Renusagar (supra). This judgment was given pride of place in the
recent judgment of Ssangyong Engineering & Construction Co.
Ltd. v. National Highways Authority of India (NHAI) Civil Appeal No.
4779 of 2019, in which this court referred to Renusagar (supra) as
follows:
“33. In Renusagar (supra), this Court dealt with a
challenge to a foreign award under Section 7 of the
Foreign Awards (Recognition and Enforcement) Act,
1961 [“Foreign Awards Act”]. The Foreign Awards Act
has since been repealed by the 1996 Act. However,
considering that Section 7 of the Foreign Awards Act
contained grounds which were borrowed from Article V
of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, 1958 [“New
York Convention”], which is almost in the same terms
as Sections 34 and 48 of the 1996 Act, the said
judgment is of great importance in understanding the
parameters of judicial review when it comes to either
foreign awards or international commercial arbitrations
being held in India, the grounds for challenge/refusal
of enforcement under Sections 34 and 48,
respectively, being the same. After referring to the New
York Convention, this Court delineated the scope of
enquiry of grounds under Sections 34/48 (equivalent to
the grounds under Section 7 of the Foreign Awards
Act, which was considered by the Court), and held:
“34. Under the Geneva Convention of 1927, in
order to obtain recognition or enforcement of a
foreign arbitral award, the requirements of
clauses (a) to (e) of Article I had to be fulfilled
and in Article II, it was prescribed that even if
the conditions laid down in Article I were fulfilled
recognition and enforcement of the award
47
would be refused if the Court was satisfied in
respect of matters mentioned in clauses (a), (b)
and (c). The principles which apply to
recognition and enforcement of foreign awards
are in substance, similar to those adopted by
the English courts at common law. (See: Dicey
& Morris, The Conflict of Laws, 11th Edn., Vol.
I, p. 578). It was, however, felt that the Geneva
Convention suffered from certain defects which
hampered the speedy settlement of disputes
through arbitration. The New York Convention
seeks to remedy the said defects by providing
for a much more simple and effective method of
obtaining recognition and enforcement of
foreign awards. Under the New York
Convention the party against whom the award
is sought to be enforced can object to
recognition and enforcement of the foreign
award on grounds set out in sub-clauses (a) to
(e) of clause (1) of Article V and the court can,
on its own motion, refuse recognition and
enforcement of a foreign award for two
additional reasons set out in sub-clauses (a)
and (b) of clause (2) of Article V. None of the
grounds set out in sub-clauses ( a ) to ( e) of
clause (1) and sub- clauses ( a ) and ( b) of
clause (2) of Article V postulates a challenge to
the award on merits.
35. Albert Jan van den Berg in his treatise The
New York Arbitration Convention of 1958 :
Towards a Uniform Judicial Interpretation, has
expressed the view:
“It is a generally accepted interpretation of the
Convention that the court before which the
enforcement of the foreign award is sought may
not review the merits of the award. The main
reason is that the exhaustive list of grounds for
refusal of enforcement enumerated in Article V
does not include a mistake in fact or law by the
arbitrator. Furthermore, under the Convention
the task of the enforcement judge is a limited
one. The control exercised by him is limited to
48
verifying whether an objection of a respondent
on the basis of the grounds for refusal of Article
V(1) is justified and whether the enforcement of
the award would violate the public policy of the
law of his country. This limitation must be seen
in the light of the principle of international
commercial arbitration that a national court
should not interfere with the substance of the
arbitration.” (p. 269)
36. Similarly Alan Redfern and Martin Hunter
have said:
“The New York Convention does not permit any
review on the merits of an award to which the
Convention applies and, in this respect,
therefore, differs from the provisions of some
systems of national law governing the
challenge of an award, where an appeal to the
courts on points of law may be permitted.”
(Redfern & Hunter, Law and Practice of
International Commercial Arbitration, 2nd Edn.,
p. 461.)
37. In our opinion, therefore, in proceedings for
enforcement of a foreign award under the
Foreign Awards Act, 1961, the scope of enquiry
before the court in which award is sought to be
enforced is limited to grounds mentioned in
Section 7 of the Act and does not enable a
party to the said proceedings to impeach the
award on merits.
xxx xxx xxx
65. This would imply that the defence of public
policy which is permissible under Section 7(1)
(b)(ii) should be construed narrowly. In this
context, it would also be of relevance to
mention that under Article I(e) of the Geneva
Convention Act of 1927, it is permissible to
raise objection to the enforcement of arbitral
award on the ground that the recognition or
enforcement of the award is contrary to the
public policy or to the principles of the law of
49
the country in which it is sought to be relied
upon. To the same effect is the provision in
Section 7(1) of the Protocol & Convention Act
of 1837 which requires that the enforcement of
the foreign award must not be contrary to the
public policy or the law of India. Since the
expression “public policy” covers the field not
covered by the words “and the law of India”
which follow the said expression, contravention
of law alone will not attract the bar of public
policy and something more than contravention
of law is required.
66. Article V(2)(b) of the New York Convention
of 1958 and Section 7(1)(b)(ii) of the Foreign
Awards Act do not postulate refusal of
recognition and enforcement of a foreign award
on the ground that it is contrary to the law of the
country of enforcement and the ground of
challenge is confined to the recognition and
enforcement being contrary to the public policy
of the country in which the award is set to be
enforced. There is nothing to indicate that the
expression “public policy” in Article V(2) (b) of
the New York Convention and Section 7(1)(b)
(ii) of the Foreign Awards Act is not used in the
same sense in which it was used in Article I(c)
of the Geneva Convention of 1927 and Section
7(1) of the Protocol and Convention Act of
1937. This would mean that “public policy” in
Section 7(1)(b)(ii) has been used in a narrower
sense and in order to attract the bar of public
policy the enforcement of the award must
invoke something more than the violation of the
law of India. Since the Foreign Awards Act is
concerned with recognition and enforcement of
foreign awards which are governed by the
principles of private international law, the
expression “public policy” in Section 7(1)(b)(ii)
of the Foreign Awards Act must necessarily be
construed in the sense the doctrine of public
policy is applied in the field of private
international law. Applying the said criteria, it
50
must be held that the enforcement of a foreign
award would be refused on the ground that it is
contrary to public policy if such enforcement
would be contrary to (i) fundamental policy of
Indian law; or (ii) the interests of India; or (iii)
justice or morality.”
(emphasis supplied)
35.The judgment of Shri Lal Mahal Ltd. v. Progetto Grano SPA (2014) 2
SCC 433 is important in that it made it clear that the Renusagar
(supra) position would continue to apply to cases which arose under
Section 48(2)(b), the wider meaning given “to public policy of India” in
the domestic sphere not being applicable. In doing so it overruled the
judgment in Phulchand Exports Ltd. v. O.O.O Patriot (2011) 10 SCC
300 as follows:
“28. We are not persuaded to accept the submission of
Mr Rohinton F. Nariman that the expression “public
policy of India” in Section 48(2)(b) is an expression of
wider import than the “public policy” in Section 7(1)(b)
(ii) of the Foreign Awards Act. We have no hesitation in
holding that Renusagar [Renusagar Power Co.
Ltd. v. General Electric Co., 1994 Supp (1) SCC 644]
must apply for the purposes of Section 48(2)(b) of the
1996 Act. Insofar as the proceeding for setting aside
an award under Section 34 is concerned, the
principles laid down in Saw Pipes [ONGC Ltd. v. Saw
Pipes Ltd., (2003) 5 SCC 705] would govern the scope
of such proceedings.
29. We accordingly hold that enforcement of foreign
award would be refused under Section 48(2)(b) only if
such enforcement would be contrary to ( 1)
fundamental policy of Indian law; or (2) the interests of
India; or (3) justice or morality. The wider meaning
51
given to the expression “public policy of India”
occurring in Section 34(2)(b)(ii) in Saw Pipes [ONGC
Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705] is not
applicable where objection is raised to the
enforcement of the foreign award under Section 48(2)
(b).
30. It is true that in Phulchand Exports [Phulchand
Exports Ltd. v. O.O.O. Patriot, (2011) 10 SCC 300 :
(2012) 1 SCC (Civ) 131] a two-Judge Bench of this
Court speaking through one of us (R.M. Lodha, J.)
accepted the submission made on behalf of the
appellant therein that the meaning given to the
expression “public policy of India” in Section 34 in Saw
Pipes [ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC
705] must be applied to the same expression occurring
in Section 48(2)(b) of the 1996 Act. However, in what
we have discussed above it must be held that the
statement in para 16 of the Report that the expression
“public policy of India used in Section 48(2)(b) has to
be given a wider meaning and the award could be set
aside, if it is patently illegal” does not lay down correct
law and is overruled.
xxx xxx xxx
45. Moreover, Section 48 of the 1996 Act does not give
an opportunity to have a “second look” at the foreign
award in the award enforcement stage. The scope of
inquiry under Section 48 does not permit review of the
foreign award on merits. Procedural defects (like
taking into consideration inadmissible evidence or
ignoring/rejecting the evidence which may be of
binding nature) in the course of foreign arbitration do
not lead necessarily to excuse an award from
enforcement on the ground of public policy.
46. In what we have discussed above, even if it be
assumed that the Board of Appeal erred in relying
upon the report obtained by the buyers from Crepin
which was inconsistent with the terms on which the
parties had contracted in the contract dated 12-5-1994
and wrongly rejected the report of the contractual
52
agency, in our view, such errors would not bar the
enforceability of the appeal awards passed by the
Board of Appeal.”
36.In LMJ International Ltd. v. Sleepwell Industries (2019) 5 SCC 302,
an ex-parte award was passed in London which was sought to be
executed by the Respondents in the High Court of Calcutta. The
learned Single Judge of the High Court passed a common order in the
execution cases rejecting objections taken regarding the
maintainability of the applications. Against this, a review petition was
rejected by the High Court and so were Special Leave Petitions before
this Court. What was argued before this Court was that grounds as to
maintainability had been taken, as a result of which grounds under
Section 48 of the Arbitration Act were not actually argued as objections
before the Single Judge. This plea of the appellant was rejected by this
Court, given the object of Section 48 of the Act. Since the appellant
“might and “ought” to have taken these grounds, before the learned
Single Judge these grounds were barred by an application of doctrine
of constructive res judicata as follows:
“17. Be that as it may, the grounds urged by the
petitioner in the earlier round regarding the
maintainability of the execution case could not have
been considered in isolation and dehors the issue of
enforceability of the subject foreign awards. For, the
same was intrinsically linked to the question of
enforceability of the subject foreign awards. In any
case, all contentions available to the petitioner in that
53
regard could and ought to have been raised
specifically and, if raised, could have been examined
by the Court at that stage itself. We are of the
considered opinion that the scheme of Section 48 of
the Act does not envisage piecemeal consideration of
the issue of maintainability of the execution case
concerning the foreign awards, in the first place; and
then the issue of enforceability thereof. Whereas,
keeping in mind the legislative intent of speedy
disposal of arbitration proceedings and limited
interference by the courts, the Court is expected to
consider both these aspects simultaneously at the
threshold. Taking any other view would result in
encouraging successive and multiple round of
proceedings for the execution of foreign awards. We
cannot countenance such a situation keeping in mind
the avowed object of the Arbitration and Conciliation
Act, 1996, in particular, while dealing with the
enforcement of foreign awards. For, the scope of
interference has been consciously constricted by the
legislature in relation to the execution of foreign
awards. Therefore, the subject application filed by the
petitioner deserves to be rejected, being barred by
constructive res judicata, as has been justly observed
by the High Court in the impugned judgment.
xxx xxx xxx
20. Suffice it to observe that the Arbitral Tribunal has
considered all aspects of the matter and even if it has
committed any error, the same could, at best, be a
matter for correction by way of appeal to be resorted to
on grounds as may be permissible under the English
law, by which the subject arbitration proceedings are
governed. We may not be understood to have
expressed any opinion on the correctness of those
issues.”
37.At this stage it is important to advert to amendments that were made
by the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter
referred to as the “2015 Amendment Act”). Section 48 was amended to
54
delete the ground of “contrary to the interest of India”. Also, what was
important was to reiterate the Renusagar (supra) position, that the test
as to whether there is a contravention with the fundamental policy of
Indian law shall not entail a review on the merits of the dispute (vide
Explanation 2 to Section 48(2)).
38.It will be noticed that in the context of challenge to domestic awards,
Section 34 of the Arbitration Act differentiates between international
commercial arbitrations held in India and other arbitrations held in
India. So far as “the public policy of India” ground is concerned, both
Sections 34 and 48 are now identical, so that in an international
commercial arbitration conducted in India, the ground of challenge
relating to “public policy of India” would be the same as the ground of
resisting enforcement of a foreign award in India. Why it is important
to advert to this feature of the 2015 Amendment Act is that all grounds
relating to patent illegality appearing on the face of the award are
outside the scope of interference with international commercial
arbitration awards made in India and foreign awards whose
enforcement is resisted in India. In this respect, it is important to
advert to paragraphs 30 and 43 of Ssangyong (supra) as follows:
“30. What is important to note is that a decision which
is perverse, as understood in paragraphs 31 and 32 of
Associate Builders (supra), while no longer being a
ground for challenge under “public policy of India”,
would certainly amount to a patent illegality appearing
55
on the face of the award. Thus, a finding based on no
evidence at all or an award which ignores vital
evidence in arriving at its decision would be perverse
and liable to be set aside on the ground of patent
illegality. Additionally, a finding based on documents
taken behind the back of the parties by the arbitrator
would also qualify as a decision based on no evidence
inasmuch as such decision is not based on evidence
led by the parties, and therefore, would also have to
be characterised as perverse.
xxx xxx xxx
43. We therefore hold, following the aforesaid
authorities, that in the guise of misinterpretation of the
contract, and consequent “errors of jurisdiction”, it is
not possible to state that the arbitral award would be
beyond the scope of submission to arbitration if
otherwise the aforesaid misinterpretation (which would
include going beyond the terms of the contract), could
be said to have been fairly comprehended as
“disputes” within the arbitration agreement, or which
were referred to the decision of the arbitrators as
understood by the authorities above. If an arbitrator is
alleged to have wandered outside the contract and
dealt with matters not allotted to him, this would be a
jurisdictional error which could be corrected on the
ground of “patent illegality”, which, as we have seen,
would not apply to international commercial
arbitrations that are decided under Part II of the 1996
Act. To bring in by the backdoor grounds relatable to
Section 28(3) of the 1996 Act to be matters beyond the
scope of submission to arbitration under Section 34(2)
(a)(iv) would not be permissible as this ground must be
construed narrowly and so construed, must refer only
to matters which are beyond the arbitration agreement
or beyond the reference to the arbitral tribunal.”
This statement of the law applies equally to Section 48 of the
Arbitration Act.
56
39.Indeed, this approach has commended itself in other jurisdictions as
well. Thus, in Sui Southern Gas Co. Ltd. v. Habibullah Coastal
Power Co. (2010) SGHC 62, the Singapore High Court, after setting
out the legislative policy of the Model Law that the ‘public policy’
exception is to be narrowly viewed and that an arbitral award that
shocks the conscience alone would be set aside, went on to hold:
“48. It is clear, therefore, that in order for SSGC to
have succeeded on the public policy argument, it had
to cross a very high threshold and demonstrate
egregious circumstances such as corruption, bribery or
fraud, which would violate the most basic notions of
morality and justice. Nothing of the sort had been
pleaded or proved by SSGC, and its ambiguous
contention that the Award was “perverse” or “irrational”
could not, of itself, amount to a breach of public
policy.”
General approach to enforcement and recognition of Foreign
Awards
40.The USA was a late signatory to the New York Convention, acceding
to the Convention only in 1970. However, in an early judgment of the
U.S Court of Appeals, Second Circuit, namely Parsons & Whittemore
Overseas Co. v. Societe Generale De L’Industrie Du Papier 508
F.2d 969 (1974), the Court in a succinct paragraph pointed out the
change made by the New York Convention when compared with the
older Geneva Convention of 1927 as follows:
“In 1958 the Convention was adopted by 26 of the 45
states participating in the United Nations Conference
on Commercial Arbitration held in New York. For the
signatory state, the New York Convention superseded
the Geneva Convention of 1927, 92 League of Nations
57
Treaty Ser. 302.The 1958 Convention’s basic thrust
was to liberalize procedures for enforcing foreign
arbitral awards: While the Geneva Convention placed
the burden of proof on the party seeking enforcement
of a foreign arbitral award and did not circumscribe the
range of available defences to those enumerated in
the convention, the 1958 Convention clearly shifted
the burden of proof to the party defending against
enforcement and limited his defenses to seven set
forth in Article V. See Contini, International
Commercial Arbitration, 8 Am.J.Comp.L. 283, 299
(1959). Not a signatory to any prior multilateral
agreement on enforcement of arbitral awards, the
United States declined to sign the 1958 Convention at
the outset. The United States ultimately acceded to the
Convention, however, in 1970, (1970) 3 U.S.T. 2517,
T.I.A.S. No. 6997, and implemented its accession
with 9 U.S.C. 201-208. Under 9 U.S.C. 208, the
existing Federal Arbitration Act, 9 U.S.C. 1-14, applies
to the enforcement of foreign awards except to the
extent to which the latter may conflict with the
Convention. See generally, Comment, International
Commercial Arbitration under the United Nations
Convention and the Amended Federal Arbitration
Statute, 47 Wash.L.Rev. 441 (1972).”
The Court then went on to hold:
“Perhaps more probative, however, are the inferences
to be drawn from the history of the Convention as a
whole. The general pro-enforcement bias informing the
Convention and explaining its supersession of the
Geneva Convention points toward a narrow reading of
the public policy defense. An expansive construction of
this defense would vitiate the Convention’s basic effort
to remove preexisting obstacles to enforcement. See
Straus, Arbitration of Disputes between Multinational
Corporations, in New Strategies for Peaceful
Resolution of International Business Disputes 114-15
(1971); Digest of Proceedings of International
Business Disputes Conference, April 14, 1971, in id. at
191 (remarks of Professor W. Reese). Additionally,
58
considerations of reciprocity— considerations given
express recognition in the Convention itself —
counsel courts to invoke the public policy defense with
caution lest foreign courts frequently accept it as a
defense to enforcement of arbitral awards rendered in
the United States.
We conclude, therefore, that the Convention’s public
policy defense should be construed narrowly.
Enforcement of foreign arbitral awards may be denied
on this basis only where enforcement would violate the
forum state’s most basic notions of morality and
justice.
xxx xxx xxx
Although the Convention recognizes that an award
may not be enforced where predicated on a subject
matter outside the arbitrator’s jurisdiction, it does not
sanction second-guessing the arbitrator’s construction
of the parties’ agreement. The appellant’s attempt to
invoke this defense, however, calls upon the court to
ignore this limitation on its decision-making powers
and usurp the arbitrator’s role. The district court took a
proper view of its own jurisdiction in refusing to grant
relief on this ground.”
(emphasis supplied)
41. This judgment was followed in Compagnie des Bauxites de Guinee
v. Hammermills Inc. (1992) WL 122712 where the US District Court,
District of Colombia followed Parsons (supra) as follows:
“The principal purpose of the Convention and its
implementation by Congress was to “remove pre-
existing obstacles to enforcement” of foreign
arbitration awards. Parsons & Whittemore Overseas
Co. v. Societe Generale de L'Industrie du Papier, 508
F.2d 969, 973 (2d Cir.1974). To facilitate this policy,
which applies with special force in the field of
59
international commerce, see Mitsubishi Motors Corp.
v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 625
(1985), the courts have developed a “general pro-
enforcement bias,” Parsons & Whittemore Overseas
Co., 508 F.2d at 973, under which the burden of proof
rests on the party challenging the arbitration award,
Dworkin Cosell Interair Courier Servs., Inc. v.
Avraham, 728 F.Supp. 156, 158 (S.D.N.Y.1989);
Overseas Private Invest. Corp. v. Anaconda Co., 418
F.Supp. 107, 110 (D.D.C.1976), and the grounds for
refusing to recognize arbitral awards are narrowly
construed, Parsons & Whittemore Overseas Co., 508
F.2d at 976–77.
xxx xxx xxx
The few courts to address this provision of the
Convention have concluded that the provision
“essentially sanctions the application of the forum
state's standards of due process.” See Parsons &
Whittemore Overseas Co., 508 F.2d at 975; Geotech
Lizenz AG v. Evergreen Systems, Inc., 697 F.Supp.
1248, 1263 (E.D.N.Y.1988) (citing Parsons &
Whittemore Overseas Co.). Due process requires
notice “reasonably calculated, under all the
circumstances, to apprise interested persons of the
pendency of the action and afford them an opportunity
to present their objections.” Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).”
42.In Certain Underwriters at Lloyd’s London v. BCS Ins. Co. 239
F.Supp.2d 812 (2003), the US District Court, N.D Illinois referred to the
Federal Arbitration Act and went on to hold that the review of a panel
decision is “grudgingly narrow”. (See paragraphs 2 and 3).
60
43.In Karaha Bodas Co., L.L.C v. Perusahaan Pertambagan Minyak
364 F.3d 274 (2004), the United States Court of Appeals for the 5
th
Circuit analysed the New York Convention thus:
“The New York Convention provides a carefully
structured framework for the review and enforcement
of international arbitral awards. Only a court in a
country with primary jurisdiction over an arbitral award
may annul that award. Courts in other countries have
secondary jurisdiction; a court in a country with
secondary jurisdiction is limited to deciding whether
the award may be enforced in that country. The
Convention “mandates very different regimes for the
review of arbitral awards (1) in the countries in which,
or under the law of which, the award was made, and
(2) in other countries where recognition and
enforcement are sought.” Under the Convention, “the
country in which, or under the arbitration law of which,
an award was made” is said to have primary
jurisdiction over the arbitration award. All other
signatory states are secondary jurisdictions, in which
parties can only contest whether that state should
enforce the arbitral award. It is clear that the district
court had secondary jurisdiction and considered only
whether to enforce the Award in the United States.
Article V enumerates specific grounds on which a
court with secondary jurisdiction may refuse
enforcement. In contrast to the limited authority of
secondary-jurisdiction courts to review an arbitral
award, courts of primary jurisdiction, usually the courts
of the country of the arbitral situs, have much broader
discretion to set aside an award. While courts of a
primary jurisdiction country may apply their own
domestic law in evaluating a request to annul or set
aside an arbitral award, courts in countries of
secondary jurisdiction may refuse enforcement only on
the grounds specified in Article V.
The New York Convention and the implementing
legislation, Chapter 2 of the Federal Arbitration Act
(“FAA”), provide that a secondary jurisdiction court
61
must enforce an arbitration award unless it finds one of
the grounds for refusal or deferral of recognition or
enforcement specified in the Convention. The Court
may not refuse to enforce an arbitral award solely on
the ground that the arbitrator may have made a
mistake of law or fact. “Absent extraordinary
circumstances, a confirming court is not to reconsider
an arbitrator’s findings.” The party defending against
enforcement of the arbitral award bears the burden of
proof. Defences to enforcement under the New York
Convention are construed narrowly “to encourage the
recognition and enforcement of commercial arbitration
agreements in international contracts…””
(emphasis supplied)
44. Likewise, in Admart AG v. Stephen and Mary Birch Foundation
Inc. 457 F.3d 302 (2006), the U.S Court of Appeals, 3
rd
Circuit, after
setting out Article V of the New York Convention, held as follows:
“To carry out the policy favoring enforcement of foreign
arbitral awards, courts have strictly applied the Article
V defenses and generally view them narrowly. See
China Minmetals, 334 F.3d at 283. In Yusuf Ahmed
Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d
15 (2d Cir.1997), the court emphasized the limited
power of review granted to district courts under the
Convention. The court examined the distinction
between awards rendered in the same nation as the
site of the arbitral proceeding and those rendered in a
foreign country. The court concluded that more
flexibility was available when the arbitration site and
the site of the confirmation proceeding were within the
same jurisdiction. Id. at 22–23. However, “the
[C]onvention is equally clear that when an action for
enforcement is brought in a foreign state, the state
may refuse to enforce the award only on the grounds
explicitly set forth in Article V of the Convention.” Id. at
23.
xxx xxx xxx
62
In the same vein, in Parsons & Whittemore Overseas
Co., Inc. v. Societe Generale de L'Industrie du Papier
(RAKTA), 508 F.2d 969 (2d Cir.1974), the Court of
Appeals reviewed the grounds for refusal contained in
the Convention and said that the public policy defense
is available “only where enforcement would violate the
forum state's most basic notions of morality and
justice.” Id. at 974. Similarly, the court noted that an
award cannot be enforced under the Convention
where it is “predicated on a subject matter outside the
arbitrator's jurisdiction,” but the Convention does not
“sanction second-guessing the arbitrator's construction
of the parties' agreement.” Id. at 977.”
45.The U.S cases show that given the “pro-enforcement bias” of the New
York Convention, which has been adopted in Section 48 of the
Arbitration Act, 1996 - the burden of proof on parties seeking
enforcement has now been placed on parties objecting to enforcement
and not the other way around; in the guise of public policy of the
country involved, foreign awards cannot be set aside by second
guessing the arbitrator’s interpretation of the agreement of the parties;
the challenge procedure in the primary jurisdiction gives more leeway
to Courts to interfere with an award than the narrow restrictive grounds
contained in the New York Convention when a foreign award’s
enforcement is resisted.
Discretion of the Court to Enforce Foreign Awards
46.Thus far, it is clear that enforcement of a foreign award may under
Section 48 of the Arbitration Act be refused only if the party resisting
63
enforcement furnishes to the Court proof that any of the stated
grounds has been made out to resist enforcement. The said grounds
are watertight – no ground outside Section 48 can be looked at. Also,
the expression used in Section 48 is “may”. Shri Viswanathan has
argued that “may” would vest a discretion in a Court enforcing a
foreign award to enforce such award despite the fact that one or more
grounds may have been made out to resist enforcement. For this
purpose, he relied upon Sections 45 to 47, which contain the word
“shall” in contradistinction to the word “may”. He also relied upon
Article V of the New York Convention which also uses the word “may”.
47.Gary Born in International Commercial Arbitration, Vol. II (2009) puts it
thus:
“No Obligation under New York Convention to
Deny Recognition of Awards
Nothing in the New York Convention requires a
Contracting State ever to deny recognition to an
arbitral award. The Convention requires only that
Contracting States recognize awards (and arbitration
agreements) in specified circumstances. Nothing in
Article V, nor the basic structure and purpose of the
Convention, imposes the opposite obligation not to
recognize an award (or arbitration agreement).
Article III of the Convention requires Contracting
States to recognize arbitral awards made abroad,
subject to procedural requirements no more onerous
than those for domestic awards, provided that the
minimal proof requirements of Article IV are satisfied.
Articles V(I) and V(2) then provide exceptions to this
affirmative obligation, beginning with the prefatory
64
statement that “[r]ecognition and enforcement of the
awards may be refused” in certain circumstances. The
most significant aspect of this provision is its structure,
which is to establish an affirmative obligation to
recognize arbitral awards, subject to specified
exceptions – but not to establish an affirmative
obligation to deny recognition. Critically, the Article
V(I) exceptions are just that: exceptions to an
affirmative obligation, and not affirmative obligations in
their own right.
Although the matter can be debated, the text of Article
V supports this structural conclusion. The English
language text of Article V is unmistakably permissive,
providing that Contracting States “may” refuse
recognition of an award; the Russian and Chinese
versions of the Convention are identical in meaning.
The Spanish version of Article V also indicates that
recognition may be denied, without indicating that it
must be. The only exception is the French text, which
has been relied on by some authorities as supposedly
establishing an obligation to deny recognition to
awards that have been annulled in the arbitral seat. In
fact, the better view appears to be that the French text
is ambiguous, assuming that awards falling within one
of Article V’s exceptions would not be enforced, but not
affirmatively requiring this result.
This is also consistent with Article VII of the
Convention, which provides that the Convention shall
not “deprive any interested party of any right he may
have to avail himself of an arbitral award in the manner
and to the extent allowed by the law or the treaties of
the country where such award is sought to be relied
upon.” This provision expresses a fundamental
objective of the Convention – which was to facilitate,
not limit, the circumstances in which international
arbitral awards could be recognized. Indeed, there is
not a hint in the drafting history of the Convention of
any intention to prevent Contracting States from
recognizing foreign awards under provisions of local
law that are more liberal than Article V.”
65
48.Redfern and Hunter on International Arbitration, 6
th
Edn. (2015) states:
“11.59 Fourthly, even if grounds for refusal of
recognition and enforcement of an award are proved
to exist, the enforcing court is not obliged to refuse
enforcement. The opening lines of Article V(1) and (2)
of the Convention say that enforcement ‘may’ be
refused; they do not say that it ‘must’ be refused. The
language is permissive, not mandatory. The same is
true of the Model Law.”
49.Likewise, Albert Jan van den Berg’s The New York Arbitration
Convention of 1958 (1981) states:
“It is to be noted that the opening lines of both the first
and the second paragraph of Article V employ a
permissive rather than mandatory language:
enforcement “may be” refused. For the first paragraph
it means that even if a party against whom the award
is invoked proves the existence of one of the grounds
for refusal of enforcement, the court still has a certain
discretion to overrule the defence and to grant the
enforcement of the award. Such overruling would be
appropriate, for example, in the case where the
respondent can be deemed to be estopped from
invoking the ground for refusal.”
50.Russel on Arbitration, Sweet & Maxwell (24
th
Edn., 2015) states:
“8-033 Opposing enforcement of a New York
Convention Award
As stated above, subject to production of the required
documents the court has no discretion but to recognise
66
and enforce a New York Convention award unless the
party opposing enforcement proves one or more of the
grounds specified in s.103 of the Arbitration Act 1996.
These grounds of refusal are exhaustive, and if none
of the grounds is present the award will be enforced.
Much has been written about these grounds and a
detailed analysis of their international application is
beyond the scope of this book but they will be treated
summarily in this chapter. The onus of proving the
existence of a ground rests upon the party opposing
enforcement, but that may not be the end of the
matter. There is an important public policy in the
enforcement of awards and the courts should only
refuse to enforce an award under s.103 in a clear
case.
xxx xxx xxx
8-035 Discretion
The court also has a discretion to allow enforcement
even in circumstances where one or more of the
grounds are made out. This discretion is not to be
exercised arbitrarily however because the word “may”
in s.103(2) is intended to refer to the corresponding
word in the New York Convention. In any event the
discretion is a very narrow one. If one or more of the
grounds in s.103(2) is made out, the strong
presumption is that the award will not be enforced. The
discretion to enforce notwithstanding will not be
exercised where the award in question was subject to
a fundamental or structural defect. The discretion may
however be available where
“despite the original existence of one or more of
the listed circumstances, the right to rely on
them had been lost by, for example, another
agreement or estoppel”,
67
Or where there are circumstances
“which might on some recognisable legal
principles affect the prima facie right to have an
award set aside arising in cases listed in
s.103(2).”
51. An interesting judgment of the U.K. Supreme Court is reported as
Dallah Real Estate and Tourism Holding Co. v. The Ministry of
Religious Affairs, Government of Pakistan (2010) UKSC 46. In this
judgment - given the resistance to a foreign award in the U.K - the
discretion of a Court to enforce such award, even if grounds to resist
the award have been made out, was set out thus:
“Per Lord Mance:
Discretion
67. Dallah has a fall-back argument, which has also
failed in both courts below. It is that s.103(2) of the
1996 Act and Article V(1) of the New York Convention
state that “Recognition and enforcement of the award
may be refused” if the person against whom such is
sought proves (or furnishes proof of) one of the
specified matters. So, Miss Heilbron submits, it is open
to a court which finds that there was no agreement to
arbitrate to hold that an award made in purported
pursuance of the non-existent agreement should
nonetheless be enforced. In Dardana Ltd v Yukos Oil
Company [2002] 1 All ER (Comm) 819 I suggested
that the word “may” could not have a purely
discretionary force and must in this context have been
designed to enable the court to consider other
circumstances, which might on some recognisable
legal principle affect the prima facie right to have
enforcement or recognition refused (paras 8 and 18). I
68
also suggested as possible examples of such
circumstances another agreement or estoppel.
68. S.103(2) and Article V in fact cover a wide
spectrum of potential objections to enforcement or
recognition, in relation to some of which it might be
easier to invoke such discretion as the word “may”
contains than it could be in any case where the
objection is that there was never any applicable
arbitration agreement between the parties to the
award. Article II of the Convention and ss.100(2) and
102(1) of the 1996 Act serve to underline the (in any
event obviously fundamental) requirement that there
should be a valid and existing arbitration agreement
behind an award sought to be enforced or recognised.
Absent some fresh circumstance such as another
agreement or an estoppel, it would be a remarkable
state of affairs if the word “may” enabled a court to
enforce or recognise an award which it found to have
been made without jurisdiction, under whatever law it
held ought to be recognised and applied to determine
that issue.
69. The factors relied upon by Dallah in support of its
suggestion that a discretion should be exercised to
enforce the present award amount for the most part to
repetition of Dallah’s arguments for saying that there
was an arbitration agreement binding on the
Government, or that an English court should do no
more than consider whether there was a plausible or
reasonably supportable basis for its case or for the
tribunal’s conclusion that it had jurisdiction. But Dallah
has lost on such points, and it is impossible to re-
deploy them here. The application of s.103(2) and
Article V(1) must be approached on the basis that
there was no arbitration agreement binding on the
Government and that the tribunal acted without
jurisdiction. General complaints that the Government
did not behave well, unrelated to any known legal
principle, are equally unavailing in a context where the
Government has proved that it was not party to any
arbitration agreement. There is here no scope for
reliance upon any discretion to refuse enforcement
69
which the word “may” may perhaps in some other
contexts provide.
xxx xxx xxx
Per Lord Collins:
Discretion
126. The court before which recognition or
enforcement is sought has a discretion to recognise or
enforce even if the party resisting recognition or
enforcement has proved that there was no valid
arbitration agreement. This is apparent from the
difference in wording between the Geneva Convention
on the Execution of Foreign Arbitral Awards 1927 and
the New York Convention. The Geneva Convention
provided (article 1) that, to obtain recognition or
enforcement, it was necessary that the award had
been made in pursuance of a submission to arbitration
which was valid under the law applicable thereto, and
contained (article 2) mandatory grounds (“shall be
refused”) for refusal of recognition and enforcement,
including the ground that it contained decisions on
matters beyond the scope of the submission to
arbitration. Article V(1)(a) of the New York Convention
(and section 103(2)(b) of the 1996 Act) provides:
“Recognition and enforcement of the award may be
refused …” See also van den Berg, p 265; Paulsson,
May or Must Under the New York Convention: An
Exercise in Syntax and Linguistics (1998) 14 Arb Int
227.
127. Since section 103(2)(b) gives effect to an
international convention, the discretion should be
applied in a way which gives effect to the principles
behind the Convention. One example suggested by
van den Berg, op cit, p 265, is where the party
resisting enforcement is estopped from challenge,
which was adopted by Mance LJ in Dardana Ltd v
Yukos Oil Co [2002] 2 Lloyd’s Rep 326, para 8. But, as
Mance LJ emphasised at para 18, there is no arbitrary
discretion: the use of the word “may” was designed to
enable the court to consider other circumstances,
which might on some recognisable legal principle
70
affect the prima facie right to have an award set aside
arising in the cases listed in section 103(2). See also
Kanoria v Guinness [2006] 1 Lloyd’s Rep 701, para 25
per Lord Phillips CJ. Another possible example would
be where there has been no prejudice to the party
resisting enforcement: China Agribusiness
Development Corpn v Balli Trading [1998] 2 Lloyd’s
Rep 76. But it is not easy to see how that could apply
to a case where a party had not acceded to an
arbitration agreement.
128. There may, of course, in theory be cases where
the English court would refuse to apply a foreign law
which makes the arbitration agreement invalid where
the foreign law outrages its sense of justice or decency
(Scarman J’s phrase in In the Estate of Fuld, decd (No
3) [1968] P 675, 698), for example where it is
discriminatory or arbitrary. The application of public
policy in the New York Convention (article V(2)(b)) and
the 1996 Act (section 103(3)) is limited to the non-
recognition or enforcement of foreign awards. But the
combination of (a) the use of public policy to refuse to
recognise the application of the foreign law and (b) the
discretion to recognise or enforce an award even if the
arbitration agreement is invalid under the applicable
law could be used to avoid the application of a foreign
law which is contrary to the court’s sense of justice.
xxx xxx xxx
130. In the United States the courts have refused to
enforce awards which have been set aside in the State
in which the award was made, on the basis that the
award does not exist to be enforced if it has been
lawfully set aside by a competent authority in that
State: Baker Marine (Nigeria) Ltd v Chevron (Nigeria)
Ltd, 191 F 3d 194 (2d Cir 1999); TermoRio SA ESP v
Electranta SP, 487 F 3d 928 (DC Cir 2007). But an
Egyptian award which had been set aside by the
Egyptian court was enforced because the parties had
agreed that the award would not be the subject of
recourse to the local courts: Chromalloy Aeroservices
v Arab Republic of Egypt, 939 F Supp 907 (DDC
1996). That decision was based both on the discretion
71
in the New York Convention, article V(1) and on the
power under article VII(1) (see Karaha Bodas Co v
Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara, 335 F 3d 357, 367 (5th Cir 2003)) and
whether it was correctly decided was left open in
TermoRio SA ESP v Electranta SP, ante, at p 937.
131. The power to enforce notwithstanding that the
award has been set aside in the country of origin does
not, of course, arise in this case. The only basis which
Dallah puts forward for the exercise of discretion in its
favour is the Government’s failure to resort to the
French court to set aside the award. But Moore-Bick
LJ was plainly right in the present case (at para 61) to
say that the failure by the resisting party to take steps
to challenge the jurisdiction of the tribunal in the courts
of the seat would rarely, if ever, be a ground for
exercising the discretion in enforcing an award made
without jurisdiction. There is certainly no basis for
exercising the discretion in this case.”
52.A learned single judge of the Delhi High Court in Cruz City 1
Mauritius Holdings v. Unitech Limited (2017) 239 DLT 649,
adverted to this issue and held:
“28. Whilst this court accepts the contention that the
use of the word “may” as used in the context of
Section 48 of the Act does not confer an absolute
discretion on the courts, it is not possible to accept that
the word “may” should be read as “shall” and the court
is compelled to refuse enforcement, if any of the
grounds under Section 48 are established. First of all,
the plain meaning of the word “may” is not “shall”; it is
used to imply discretion and connote an option as
opposed to compulsion.
29. In re, Nichols v. Baker: 59 LJ Ch 661, Cotton L.J.
observed that ‘“May’ can never mean must, so long as
the English language retains its meaning; but it gives a
power and then it may be a question, in what cases,
72
when any authority or body has a power given it by the
word ‘may’, it becomes its duty to exercise that power”.
30. In Official Liquidator v. Dharti Dhan (P) Ltd.: (1977)
2 SCC 166 the Supreme Court had explained that in
certain cases where the legal and factual context in
which the discretionary power is to be exercised is
specified, it is also annexed with a duty to exercise it in
that manner. Keeping the aforesaid in mind, there can
be no cavil that since Section 48 of the Act enables the
court to refuse enforcement of a foreign award on
certain grounds, this court would be required to do so;
however, if there are good reasons founded on settled
principles of law, the court is not precluded from
declining the same. The word “may” in Section 48(1)
and (2) of the Act must be interpreted as used in a
sense so as not to fetter the courts to refuse
enforcement of a foreign award even if the grounds as
set out in Section 48 are established, provided there is
sufficient reason to do so. Viewed from this
perspective, the considerations that this court may
bear while examining grounds as set out under
Section 48(1) (enacted to give effect to Article V(1) of
the New York convention) may be materially different
from the consideration that this court may bear while
examining the issue of declining enforcement of a
foreign award on the ground of public policy (Section
48(2) of the Act). Whereas the grounds as set out
under Section 48(1) essentially concern the structural
integrity of the arbitral process and inter party rights
therefore considerations such as the conduct of
parties, balancing of the inter se rights etc are of
material significance but such considerations may not
be of any significant relevance in considering whether
enforcing the award contravenes the public policy of
India.
31. It is necessary to bear in mind that Section 48 of
the Act is a statutory expression of Article V of the New
York Convention and is similarly worded. The object of
Article V of the New York Convention is to enable the
signatory States to retain the discretion to refuse
enforcement of a foreign award on specified grounds
and none other; it does not compel the member States
73
to decline enforcement of foreign awards. Article V of
the convention thus sets out the maximum leeway
available to member States to refuse enforcement of a
foreign award. This view has also been accepted by
courts in the United States. In Chromalloy
Aeroservices. v. The Arab Republic of Egypt: 939 F.
Supp. 907 (DDC 1996), an Egyptian award, which was
set aside by an Egyptian court, was enforced
notwithstanding Article V(1)(e) of the New York
Convention.
32. The principle that courts may enforce a foreign
award notwithstanding that one or more of the
specified grounds have been established, is also
accepted in the United Kingdom. (See: China
Agribusiness Development Corporation v. Balli
Trading: [1998] 2 Lloyd's Rep 76).
xxx xxx xxx
37. The grounds as set out in Section 48 of the Act for
refusing enforcement of the award encompass a wide
spectrum of acts and factors as they are set in broad
terms. While in some cases, it may be imperative to
refuse the enforcement of the award while in some
other, it may be manifestly unjust to do so. Section 48
is enacted to give effect to Article V of the New York
Convention, which enables member States to retain
some sovereign control over enforcement of foreign
awards in their territory. The ground that enforcement
of an award opposed to the national public policy
would be declined perhaps provides the strongest
expression of a Sovereign's reservation that its
executive power shall not be used to enforce a foreign
award which is in conflict with its policy. The other
grounds mainly relate to the structural integrity of the
arbitral process with focus on inter party rights.
38. In terms of Sub-section (1) of Section 48 of the Act,
the Court can refuse enforcement of a foreign award
only if the party resisting the enforcement furnishes
proof to establish the grounds as set out in Section
48(1) of the Act. However, the court may refuse
enforcement of a foreign award notwithstanding that a
party resisting the enforcement has not provided
74
any/sufficient proof of contravention of public policy. In
such cases, the Court is not precluded from examining
the question of public policy suo motu and would
refuse to enforce the foreign award that is found to
offend the public policy of India. The approach of the
court while examining whether to refuse enforcement
of a foreign award would also depend on the nature of
the defence established.
39. Even where public policy considerations are to be
weighed, it is not difficult to visualise a situation where
both permitting as well as declining enforcement would
fall foul of the public policy. Thus, even in cases where
it is found that the enforcement of the award may not
conform to public policy, the courts may evaluate and
strike a balance whether it would be more offensive to
public policy to refuse enforcement of the foreign
award - considering that the parties ought to be held
bound by the decision of the forum chosen by them
and there is finality to the litigation - or to enforce the
same; whether declining to enforce a foreign award
would be more debilitating to the cause of justice, than
to enforce it. In such cases, the court would be
compelled to evaluate the nature, extent and other
nuances of the public policy involved and adopt a
course which is less pernicious.
xxx xxx xxx
43. Thus, whilst there is no absolute or open discretion
to reject the request for declining to enforce a foreign
award, it cannot be accepted that it is totally absent.
The width of the discretion is narrow and limited, but if
sufficient grounds are established, the court is not
precluded from rejecting the request for declining
enforcement of a foreign award.”
53.When the grounds for resisting enforcement of a foreign award under
Section 48 are seen, they may be classified into three groups –
grounds which affect the jurisdiction of the arbitration proceedings;
75
grounds which affect party interest alone; and grounds which go to the
public policy of India, as explained by Explanation 1 to Section 48(2).
Where a ground to resist enforcement is made out, by which the very
jurisdiction of the tribunal is questioned - such as the arbitration
agreement itself not being valid under the law to which the parties
have subjected it, or where the subject matter of difference is not
capable of settlement by arbitration under the law of India, it is obvious
that there can be no discretion in these matters. Enforcement of a
foreign award made without jurisdiction cannot possibly be weighed in
the scales for a discretion to be exercised to enforce such award if the
scales are tilted in its favour.
54.On the other hand, where the grounds taken to resist enforcement can
be said to be linked to party interest alone, for example, that a party
has been unable to present its case before the arbitrator, and which
ground is capable of waiver or abandonment, or, the ground being
made out, no prejudice has been caused to the party on such ground
being made out, a Court may well enforce a foreign award, even if
such ground is made out. When it comes to the “public policy of India”
ground, again, there would be no discretion in enforcing an award
which is induced by fraud or corruption, or which violates the
fundamental policy of Indian law, or is in conflict with the most basic
76
notions of morality or justice. It can thus be seen that the expression
“may” in Section 48 can, depending upon the context, mean “shall” or
as connoting that a residual discretion remains in the Court to enforce
a foreign award, despite grounds for its resistance having been made
out. What is clear is that the width of this discretion is limited to the
circumstances pointed out hereinabove, in which case a balancing act
may be performed by the Court enforcing a foreign award.
The Natural Justice Ground under Section 48
55.Shri Sibal has argued that the expression “or was otherwise unable to
present his case” occurring in Section 48(1)(b) of the Act must be read
along with the words preceding it noscitur a sociis, and, given the fact
that the grounds for resistance of enforcement have to be construed
narrowly in the case of ambiguity, this expression cannot possibly go
beyond the hearing before the arbitrator and to the award rendered by
the arbitrator. Shri Nakul Dewan, on the other hand, argued that the
expression “unable to present his case” was co-terminus with breach
of natural justice which went to not only the hearing before the
arbitrator, but also to the award, in that, if the arbitrator were not to
give a finding on a material issue or were not to decide a claim or
counter-claim, this would breach the broader requirements of the audi
alteram partem rule of natural justice and would, therefore, be covered
by Section 48(1)(b) of the Act.
77
56.This Court in Ssangyong (supra) has dealt with this aspect of Section
48 as follows:
“37. Under the rubric of a party being otherwise unable
to present its case, the standard textbooks on the
subject have stated that where materials are taken
behind the back of the parties by the Tribunal, on
which the parties have had no opportunity to comment,
the ground under Section 34(2)(a)(iii) would be made
out. In New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards –
Commentary, edited by Dr. Reinmar Wolff (C.H. Beck,
Hart, Nomos Publishing, 2012), it is stated:
“4. Right to Comment
According to the principle of due process, the tribunal
must grant the parties an opportunity to comment on
all factual and legal circumstances that may be
relevant to the arbitrators’ decision-making.
a) Right to Comment on Evidence and Arguments
Submitted by the Other Party
As part of their right to comment, the parties must be
given an opportunity to opine on the evidence and
arguments introduced in the proceedings by the other
party. The right to comment on the counterparty’s
submissions is regarded as a fundamental tenet of
adversarial proceedings. However, in accordance with
the general requirement of causality, the denial of an
opportunity to comment on a particular piece of
evidence or argument is not prejudicial, unless the
tribunal relied on this piece of evidence or argument in
making its decision.
In order to ensure that the parties can exercise their
right to comment effectively, the arbitral tribunal must
grant them access to the evidence and arguments
78
submitted by the other side. Affording a party the
opportunity to make submissions or to give its view
without also informing it of the opposing side’s claims
and arguments typically constitutes a violation of due
process, unless specific non-disclosure rules apply
(e.g., such disclosure would constitute a violation of
trade secrets or applicable legal privileges).
In practice, national courts have afforded arbitral
tribunals considerable leeway in setting and adjusting
the procedures by which parties respond to one
another’s submissions and evidence, reasoning that
there were “several ways of conducting arbitral
proceedings.” Accordingly, absent any specific
agreement by the parties, the arbitral tribunal has wide
discretion in arranging the parties’ right to comment,
permitting or excluding the introduction of new claims,
and determining which party may have the final word.
b) Right to Comment on Evidence Known to or
Determined by the Tribunal
The parties’ right to comment also extends to facts that
have not been introduced in the proceedings by the
parties, but that the tribunal has raised sua sponte,
provided it was entitled to do so. For instance, if the
tribunal gained “out of court knowledge ” of
circumstances (e.g., through its own investigations), it
may only rest its decision on those circumstances if it
informed both parties in advance and afforded them
the opportunity to comment thereon. The same rule
applies to cases where an arbitrator intends to base
the award on his or her own expert knowledge,
unless the arbitrator was appointed for his or her
special expertise or knowledge (e.g., in quality
arbitration). Similarly, a tribunal must give the parties
an opportunity to comment on facts of common
knowledge if it intends to base its decision on those
facts, unless the parties should have known that those
79
facts could be decisive for the final award.”(emphasis
in original)
In Fouchard, Gaillard, Goldman on International
Commercial Arbitration (Kluwer Law International,
1999) [“Fouchard”] it is stated:
“In some rare cases, recognition or enforcement of an
award has been refused on the grounds of a breach of
due process. One example is the award made in a
quality arbitration where the defendant was never
informed of the identity of the arbitrators hearing the
dispute [Danish buyer v German (F.R.) seller, IV Y.B.
Comm. Arb. 258 (1979) (Oberlandesgericht Cologne)].
It also occurred in a case where various documents
were submitted by one party to the arbitral tribunal but
not to the other party [G.W.I. Kersten & Co. B.V. v.
Société Commerciale Raoul Duval et Co., XIX Y.B.
Comm. Arb. 708 (Amsterdam Court of Appeals)
(1992)], in another case where the defendant was not
given the opportunity to comment on the report
produced by the expert appointed by the tribunal
[Paklito Inv. Ltd. v. Klockner East Asia Ltd., XIX Y.B.
Comm. Arb. 664, 671 (Supreme Court of Hong Kong)
(1994)], and again where the arbitral tribunal criticized
a party for having employed a method of presenting
evidence which the tribunal itself had suggested [Iran
Aircraft Indus. v Avco Corp., 980 F.2d 141 (2nd Cir.
1992)].”(at p. 987)
Gary Born (supra) states:
“German courts have adopted similar reasoning,
holding that the right to be heard entails two related
sets of rights: (a) a party is entitled to present its
position on disputed issues of fact and law, to be
informed about the position of the other parties and to
a decision based on evidence or materials known to
the parties [See, e.g., Judgment of 5 July 2011, 34
80
SCH 09/11, II(5)(c)(bb) (Oberlandesgericht Munchen)];
and (b) a party is entitled to a decision by the arbitral
tribunal that takes its position into account insofar as
relevant [See, e.g., Judgment of 5 October 2009, 34
Sch 12/09 (Oberlandesgericht Munchen)]. Other
authorities provide comparable formulations of the
content of the right to be heard [See, e.g., Slaney v.
Int’l Amateur Athletic Foundation, 244 F.3d 580, 592
(7th Cir. 2001) (at p. 3225)
Similarly, in Redfern and Hunter (supra):
“11.73. The national court at the place of enforcement
thus has a limited role. Its function is not to decide
whether or not the award is correct, as a matter of fact
and law. Its function is simply to decide whether there
has been a fair hearing. One mistake in the course of
the proceedings may be sufficient to lead the court to
conclude that there was a denial of justice. For
example, in a case to which reference has already
been made, a US corporation, which had been told
that there was no need to submit detailed invoices,
had its claim rejected by the Iran-US Claims Tribunal,
for failure to submit detailed invoices! The US court,
rightly it is suggested, refused to enforce the award
against the US company [Iran Aircraft Ind v Avco Corp.
980 F.2d. 141 (2nd Cir. 1992)]. In different
circumstances, a German court held that an award
that was motivated by arguments that had not been
raised by the parties or the tribunal during the arbitral
proceedings, and thus on which the parties had not
had an opportunity to comment, violated due process
and the right to be heard [See the decision of the
Stuttgart Court of Appeal dated 6 October 2001
referred to in Liebscher, The Healthy Award,
Challenge in International Commercial Arbitration
(Kluwer law International, 2003), 406]. Similarly, in
Kanoria v Guinness, [2006] EWCA Civ. 222, the
81
English Court of Appeal decided that the respondent
had not been afforded the chance to present its case
when critical legal arguments were made by the
claimant at the hearing, which the respondent could
not attend due to a serious illness. In the
circumstances, the court decided that ‘this is an
extreme case of potential injustice’ and resolved not to
enforce the arbitral award.
11.74. Examples of unsuccessful ‘due process’
defences to enforcement are, however, more
numerous. In Minmetals Germany v Ferco Steel,
[1999] CLC 647, the losing respondent in an arbitration
in China opposed enforcement in England on the
grounds that the award was founded on evidence that
the arbitral tribunal had obtained through its own
investigation. An English court rejected this defence on
the basis that the respondent was eventually given an
opportunity to ask for the disclosure of evidence at
issue and comment on it, but declined to do so. The
court held that the due process defence to
enforcement was not intended to accommodate
circumstances in which a party had failed to take
advantage of an opportunity duly accorded to it.”
57. This Court’s judgment in Sohan Lal Gupta v. Asha Devi Gupta
(2003) 7 SCC 492, lays down the ingredients of a fair hearing as
follows:
“23. For constituting a reasonable opportunity, the
following conditions are required to be observed:
1. Each party must have notice that the hearing is to
take place.
2. Each party must have a reasonable opportunity to
be present at the hearing, together with his advisers
and witnesses.
82
3. Each party must have the opportunity to be present
throughout the hearing.
4. Each party must have a reasonable opportunity to
present evidence and argument in support of his own
case.
5. Each party must have a reasonable opportunity to
test his opponent's case by cross-examining his
witnesses, presenting rebutting evidence and
addressing oral argument.
6. The hearing must, unless the contrary is expressly
agreed, be the occasion on which the parties present
the whole of their evidence and argument.”
58.A recent Delhi High Court judgment in Glencore International AG v.
Dalmia Cement (Bharat) Limited 2017 SCC OnLine Del 8932 puts it
thus:
“25. The inability to present a case as contemplated
under section 48(1)(b) of the Act (which is pari
materia to Article V(I)(b) of the New York Convention)
must be such so as to render the proceedings violative
of the due process and principles of natural justice. It
is rudimentary that for a fair decision each party must
have full and equal opportunity to present their
respective cases and this includes due notice of
proceedings. In the event a party opposing the
enforcement of a foreign award is able to present
sufficient proof of such infirmity in the arbitral
proceedings, the courts may decline to enforce the
foreign award.
26. A clear distinction needs to be drawn between
cases where a party is unable to present its case,
rendering the arbitral award susceptible to challenge
as falling foul of the minimal standards of due
process/natural justice and cases where the arbitral
tribunal does not accept the case sought to be set up
by a party. The latter case, obviously, does not give
83
rise to a ground as mentioned in section 48(1)(b) of
the Act, even if the decision of the arbitral tribunal is
erroneous.”
59.The English judgments advocate applying the test of a person being
prevented from presenting its case by matters outside his control. This
was done in Minmetals Germany GmbH v. Ferco Steel Ltd. (1999)
C.L.C. 647 as follows:
“In my judgment, the inability to present a case to
arbitrators within s.103(2)(c) contemplates at least that
the enforcee has been prevented from presenting his
case by matters outside his control. This will normally
cover the case where the procedure adopted has been
operated in a manner contrary to the rules of natural
justice. Where, however, the enforcee has, due to
matters within his control, not provided himself with the
means of taking advantage of an opportunity given to
him to present his case, he does not in my judgment,
bring himself within that exception to enforcement
under the convention. In the present case that is what
has happened”
60.Likewise, in Ajay Kanoria v. Tony Guinness (2006) EWCA Civ 222
the Court of Appeal in England referred to Minmetals (supra) with
approval as follows:
“23. There is not much authority on the meaning of
section 103(2)(c) of the 1996 Act. In Minmetals
Germany GmbH v Ferco Steel Ltd [1999] 1 All ER
(Comm) 315 , 326, Colman J observed:
“In my judgment, the inability to present a case to
arbitrators within section 103(2)(c) contemplates at
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least that the enforcee has been prevented from
presenting his case by matters outside his control.
This will normally cover the case where the procedure
adopted has been operated in a manner contrary to
the rules of natural justice.””
61.An application of this test is found in Jorf Lasfar Energy Co. v. AMCI
Export Corp. 2008 WL 1228930, where the U.S District Court, W.D.
Pennsylvania decided that if a party fails to obey procedural orders
given by the arbitrator, it must suffer the consequences. If evidence is
excluded because it is not submitted in accordance with a procedural
order, a party cannot purposefully ignore the procedural directives of
the decision-making body and then successfully claim that the
procedures were unfair or violative of due process. Likewise, in
Dongwoo Mann+Hummel Co. Ltd. v. Mann+Hummel GmbH (2008)
SGHC 275, the Singapore High Court held:
“145. A deliberate refusal to comply with a discovery
order is not per se a contravention of public policy
because the adversarial procedure in arbitration
admits of the possible sanction of an adverse
inference being drawn against the party that does not
produce the document in question in compliance with
an order. The tribunal will of course consider all the
relevant facts and circumstances, and the submissions
by the parties before the tribunal decides whether or
not to draw an adverse inference for the non-
production. Dongwoo also had the liberty to apply to
the High Court to compel production of the documents
under s 13 and 14 of the IAA, if it was not content with
merely arguing on the question of adverse inference
and if it desperately needed the production by M+H of
85
those documents for its inspection so that it could
properly argue the point on drawing an adverse
inference. However, Dongwoo chose not to do so.
146. Further, the present case was not one where a
party hides even the existence of the damning
document and then dishonestly denies its very
existence so that the opposing party does not even
have the chance to submit that an adverse inference
ought to be drawn for non-production. M+H in fact
disclosed the existence of the documents but gave
reasons why it could not disclose them. Here,
Dongwoo had the full opportunity to submit that an
adverse inference ought to be drawn, but it failed to
persuade the tribunal to draw the adverse inference.
The tribunal examined the other evidence before it,
considered the submissions of the parties and
rightfully exercised its fact finding and decision making
powers not to draw the adverse inference as it was
entitled to do so. It would appear to me that the
tribunal was doing nothing more than exercising its
normal fact finding powers to determine whether or not
an adverse inference ought to be drawn.”
62.Other English judgments deal with the expression “unable to present
his case” as a breach of a facet of natural justice at the hearing stage
only. Thus, in Gbangbola v. Smith and Sheriff 1998 3 All ER 730, the
Court held:
“A tribunal does not act fairly and impartially if it does
not give a party an opportunity of dealing with
arguments which have not been advanced by either
party. It is not suggested by the claimant contractor
that either of the two points mentioned in the
arbitrator's letter was raised by it in the arbitration as
being influential on the overall burden and
determination of costs. Unless such an opportunity is
given there is danger that the final result will not be
determined fairly against the party who would be
86
ordered to pay the costs. That is indeed the position as
regards both the first and second points.”
Likewise, in Bahman Irvani v. Ali Irvani 1999 WL 1142456,
the Court found:
“181. …Nor was it satisfactory that Mr Amin's
questions were only replied to with the award, instead
of being dealt with in advance of the award so that
comment could be advanced.”
63.Another facet of “unable to present his case” was stated in Van Der
Giessen-De-Noord Shipbuilding Division B.V. v. Imtech Marine &
Offshore B.V. (2008) EWHC 2904 (Comm). The UK Court held:
“In those circumstances it has breached its duty of
fairness by ignoring the agreed position of the parties
that a claim under this head should not include the
cabling for the HVAC equipment. In “double-counting”
in this respect, the Tribunal has awarded Imtech more
than it asked for, or could reasonably ask for. GN
submits that the double-counting is probably a very
significant part of the €1,000,000 awarded, on the
basis that the Tribunal had previously awarded a larger
amount under the HVAC claim (Claim 1, VTC 1).
Whatever the size of the double-counting may be, it is
unlikely to be minimal. I am satisfied that GN has been
caused substantial injustice by having, on the face of
the Award, to pay more than it should to Imtech for
extra work.”
This finding was given pursuant to Section 68 of the Arbitration Act,
1996 (U.K) by which a “serious irregularity” would lead to the award
being set aside or remitted or being declared to be of no effect in
whole or in part.
87
64.In Malicorp Limited v. Government of Arab Republic of Egypt
(2015) EWHC 361 (Comm), the U.K Court held that the Government of
Egypt had no warning of the manner in which the award was made.
The Court held:
“41. In these circumstances I have no doubt
whatsoever that the award of damages under article
142 must have been a complete surprise to Egypt. So,
too, must have been the basis upon which such an
award was made – apportioning to the Republic 10%
responsibility for the relevant mistake, and allowing as
the major part of the award a substantial sum for loss
of profit. It would have been astonishing, if there had
been any suggestion that this was in contemplation,
that Egypt would fail to protest that the tribunal ought
to make a finding on its case on fraud rather than
allocate responsibility on the footing of a good faith
mistake on the part of Malicorp. It would similarly have
been astonishing, if there had been any suggestion
that damages in place of reinstatement were
contemplated, that Egypt would fail to protest that such
damages could not properly incorporate an element for
loss of profit. There were undoubtedly strong
arguments for Egypt to advance in these respects
among others. The notion that, in the absence of any
mention of these matters, Egypt could and should
have anticipated the basis of proceeding adopted in
the Cairo award, is to my mind manifestly repugnant to
elementary principles of fairness.
42. The failure of the tribunal to ensure that Egypt had
warning of these matters can only constitute a serious
breach of natural justice. In so far as I have any
discretion to enforce the award despite that breach, I
decline to do so: the breach is too serious, and the
consequences for Egypt are too grave. It is suggested
that the hearing be reconvened so that Mr Soliman
can give evidence and be cross-examined. I decline to
take this course: for the reasons given above, Mr
Soliman's statement cannot assist Malicorp.”
88
65.The judgments from the Singapore Courts are also instructive. In Soh
Beng Tee & Co. v. Fairmount Development Pte Ltd. (2007) SGCA
28, the Court fleshed out what was meant by “fair hearing” for the
purposes of Section 48(1)(a)(vii) of the Arbitration Act, 2002
(Singapore) as follows:
“59. These cases must be read in the context of the
current judicial climate which dictates that courts
should not without good reason interfere with the
arbitral process, whether domestic or international. It is
incontrovertible that international practice has now
radically shifted in favour of respecting and preserving
the autonomy of the arbitral process in contrast to the
earlier practice of enthusiastic curial intervention: see,
for instance, Arbitration Act 1996 ([27] supra) at p 1 on
the English position; and Robert Morgan, The
Arbitration Ordinance of Hong Kong: A Commentary
(Butterworths Asia, 1997) on the position in Hong
Kong, which also essentially reflects the English
practice. As rightly observed in Weldon Plant Ltd v
The Commission for the New Towns [2001] 1 All ER
(Comm) 264 (“Weldon”) at [22], “[a]n award should be
read supportively … [and] given a reading which is
likely to uphold it rather than to destroy it”. Similarly, in
Vee Networks Ltd v Econet Wireless International Ltd
[2005] 1 Lloyd’s Rep 192, the court, at [90], held:
Above all 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 process.
xxx xxx xxx
65. The foregoing survey of case law and principles
may be further condensed into the following core
principles:
89
(a) Parties to arbitration have, in general, a right to be
heard effectively on every issue that may be relevant
to the resolution of a dispute. The overriding concern,
as Goff LJ aptly noted in The Vimeira ([45] supra), is
fairness. The best rule of thumb to adopt is to treat the
parties equally and allow them reasonable
opportunities to present their cases as well as to
respond. An arbitrator should not base his decision(s)
on matters not submitted or argued before him. In
other words, an arbitrator should not make bricks
without straw. Arbitrators who exercise unreasonable
initiative without the parties’ involvement may attract
serious and sustainable challenges.
(b) Fairness, however, is a multidimensional concept
and it would also be unfair to the successful party if it
were deprived of the fruits of its labour as a result of a
dissatisfied party raising a multitude of arid technical
challenges after an arbitral award has been made. The
courts are not a stage where a dissatisfied party can
have a second bite of the cherry.
(c) Indeed, the latter conception of fairness justifies a
policy of minimal curial intervention, which has
become common as a matter of international practice.
To elaborate, minimal curial intervention is
underpinned by two principal considerations. First,
there is a need 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, having opted for
arbitration, parties must be taken to have
acknowledged and accepted the attendant risks of
having only a very limited right of recourse to the
courts. It would be neither appropriate nor consonant
for a dissatisfied party to seek the assistance of the
court to intervene on the basis that the court is
discharging an appellate function, save in the very
limited circumstances that have been statutorily
condoned. Generally speaking, a court will not
intervene merely because it might have resolved the
various controversies in play differently.
90
(d) The delicate balance between ensuring the
integrity of the arbitral process and ensuring that the
rules of natural justice are complied with in the arbitral
process is preserved by strictly adhering to only the
narrow scope and basis for challenging an arbitral
award that has been expressly acknowledged under
the Act and the IAA. In so far as the right to be heard is
concerned, the failure of an arbitrator to refer every
point for decision to the parties for submissions is not
invariably a valid ground for challenge. Only in
instances such as where the impugned decision
reveals a dramatic departure from the submissions, or
involves an arbitrator receiving extraneous evidence,
or adopts a view wholly at odds with the established
evidence adduced by the parties, or arrives at a
conclusion unequivocally rejected by the parties as
being trivial or irrelevant, might it be appropriate for a
court to intervene. In short, there must be a real basis
for alleging that the arbitrator has conducted the
arbitral process either irrationally or capriciously. To
echo the language employed in Rotoaira ([55] supra),
the overriding burden on the applicant is to show that a
reasonable litigant in his shoes could not have
foreseen the possibility of reasoning of the type
revealed in the award. It is only in these very limited
circumstances that the arbitrator’s decision might be
considered unfair.
(e) It is almost invariably the case that parties propose
diametrically opposite solutions to resolve a dispute.
They may expect the arbitrator to select one of these
alternative positions. The arbitrator, however, is not
bound to adopt an either/or approach. He is perfectly
entitled to embrace a middle path (even without
apprising the parties of his provisional thinking or
analysis) so long as it is based on evidence that is
before him. Similarly, an arbitrator is entitled – indeed,
it is his obligation – to come to his own conclusions or
inferences from the primary facts placed before him. In
this context, he is not expected to inexorably accept
the conclusions being urged upon him by the parties.
Neither is he expected to consult the parties on his
thinking process before finalising his award unless it
91
involves a dramatic departure from what has been
presented to him.
(f) Each case should be decided within its own factual
matrix. 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.”
(emphasis supplied)
66.In JVL Agro Industries Ltd v. Agritrade International Pte Ltd.
(2016) SGHC 126, the Court held that the natural justice provision
contained in Section 24(b) of the International Arbitration Act
(Singapore) was breached when new points are taken up by the
arbitrator, i.e. points not argued by either party, which formed the basis
of the award. Since these new points were not put to the parties,
natural justice was said to be breached in the facts of that case.
Likewise, in G.D. Midea Air Conditioning Equipment Co. v. Tornado
Consumer Goods Ltd. (2017) SGHC 193, the Court found:
“65. A party seeking to set aside an arbitral award
under Art 34(2)(a)(ii) of the Model Law or s 24(b) of the
IAA must establish (a) which rule of natural justice was
breached; (b) how that rule was breached; (c) in what
way the breach was connected to the making of the
award; and (d) how the breach prejudiced the party’s
rights: Soh Beng Tee & Co Pte Ltd v Fairmount
Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng
Tee”) at [29].
92
66. The crux of Midea’s case was that the Tribunal’s
finding on cl 4.2 breached the fair hearing rule
because Midea was denied a full opportunity to
present its case. As stated earlier (see [62] above), the
issue of a breach of cl 4.2 did not arise in the
Arbitration; the Tribunal made its finding on cl 4.2
without giving notice to the parties. The Tribunal’s
breach was clearly connected to the making of the
Award as its finding on cl 4.2 was the basis upon
which the impugned findings in the Award (including
the finding that Midea was not entitled to terminate the
MBA) were made. I agreed with Midea that the
Tribunal’s finding on cl 4.2 was in breach of the rules
of natural justice.”
67.A Hong Kong Judgment reported as Hebei Import & Export
Corporation v. Polytek Engineering Company Ltd. (1992) 2 HKC
205, found that the tribunal in the course of proceedings received
communications from only one party, in the absence of the other, the
other party being kept in the dark as to what those communications
were. On this point, therefore it was held:
“On the other hand, we think it is quite clear that the
defendant did not have the opportunity of hearing what
was presented to the Chief Arbitrator by the plaintiff's
employees during the inspection of the equipment and
hence was not able to present its side of the case
before the experts prepared their report. This was to
some extent mitigated by the provision of a copy of the
experts’ report and the chance to comment on it. But
neither the reply from the Tribunal or the report
mentioned what transpired during the briefing session.
In the peculiar circumstances of this case, we think
that the Tribunal should have held further hearings
with regard to the matters which had arisen from the
inspection and the experts’ report. There was no
request or consent that an oral hearing could be
omitted. In our view, the defendant has a legitimate
93
complaint that there was a breach of Art 32 of the
Arbitration rules and Art 45 of the PRC Arbitration Law.
It can be said that the defendant did not have a proper
opportunity to present its case to the Tribunal after the
inspection and the compilation of the experts’ report.”
68.Shri Nakul Dewan, however, relied upon a number of judgments to
buttress his submission that failure to deal with material issues would
fall within Section 48(1)(b) of the Arbitration Act, as a result of which a
foreign award could not be enforced. He cited Ascot Commodities
NV v. Olam International Ltd. 2001 WL 1560709, for this proposition.
This judgment was delivered keeping in mind Section 68 of the
Arbitration Act, 1996 (U.K), which states as follows:
“68. Challenging the award: serious irregularity.
(1) A party to arbitral proceedings may (upon notice to
the other parties and to the tribunal) apply to the court
challenging an award in the proceedings on the
ground of serious irregularity affecting the tribunal, the
proceedings or the award.
A party may lose the right to object (see section 73)
and the right to apply is subject to the restrictions in
section 70(2) and (3).
(2) Serious irregularity means an irregularity of one or
more of the following kinds which the court considers
has caused or will cause substantial injustice to the
applicant—
xxx xxx xxx
(d)failure by the tribunal to deal with all the issues that
were put to it;”
It was in this context that the Court held:
94
“Has the Board dealt with all essential issues? GAFTA
findings are habitually brief. Many would regard that as
a virtue. It is certainly not an irregularity. Nor is it
incumbent on arbitrators to deal with every argument
on every point raised. But an award should deal,
however concisely, with all essential issues. One of the
heads of serious irregularity recognised in section
68(2)(d) is “Failure by the tribunal to deal with all the
issues that were put to it”. The central point raised by
Ascot on its appeal was that if the bills of lading were
pledged as security, as appears on the face of the
October 1998 contract, Olam's loss was not to be
approached in the same way as if they were beneficial
owners of the cargo. The point has, with respect, not
been addressed…Since the whole process of
arbitration is intended as a way of determining points
at issue, it is more likely to be a matter of serious
irregularity if on a central matter a finding is made on a
basis which does not reflect the case which the party
complaining reasonably thought he was meeting, or a
finding is ambiguous, or an important issue is not
addressed, than if the complaints go simply to
procedural matters. Mr Young submitted that Ascot's
real complaint is that its arguments were not accepted
and that this cannot be an irregularity. He noted that
there has been no application for permission to
appeal. He also submitted that if the terseness of the
Board's findings made it legitimate for Ascot to have
requested further reasons, they could have asked for
them but have not done so.
On a fair reading of the award it seems to me that this
is not case in which the tribunal has directed itself to,
and rejected, the central issue argued by Ascot but
has, in truth, missed it…But if an award, as delivered,
fails to contain a finding on a central issue, it would be
odd to ask for reasons for something which is not
there.”
69.Likewise, in Zebra Industries v. Wah Tong Paper Products Group
Ltd. (2012) HKCU 1308, the Hong Kong Statute, namely, Section
95
23(2) of Old Arbitration Ordinance (Cap 391), enabled an award to be
set aside on the ground of error of law. In this context, it was held:
“44. In light of Zebra’s above submissions, the
question of law that arises is whether the arbitrator
was wrong in law in failing to take into account of the
Venture Capital Clauses in determining Zebra’s claim
for damages.
xxx xxx xxx
47. In my view, properly looked at, a claim on
damages for breach of the Agreement based on and
by reference to the Venture Capital Clauses had been
put forward by Zebra in the SD.
xxx xxx xxx
49. In the circumstances, I think the arbitrator has also
committed an error of law in failing to consider and
address this part of Zebra’s claim for consequential
damages, if any, for the loss of chance in securing a
venture capital fund investment and the listing of the
company.
50. I would therefore also remit this part of the Award
to the arbitrator for his reconsideration. These issues
for reconsideration are closely tied with the
assessment of the relevant parts of the evidence on
the alleged loss of chance, if any, and should best be
dealt with by the arbitrator. In doing so, the arbitrator
should take into account of the Venture Capital
Clauses to consider and decide this part of Zebra’s
claim for consequential damages as mentioned in
paragraph 42 above.”
70.In A v. B (2015) 3 HKLRD 586, the Court held:
“33. It is fundamental to concepts of fairness, due
process and justice, as recognized in Hong Kong, that
key and material issues raised for determination, either
by a court or the arbitral tribunal, should be considered
96
and dealt with fairly. An award should be reasoned, to
the extent of being reasonably sufficient and
understandable by the parties (ie within the confines
set out in R v F [2012] 5 HKLRD 278). Under Article
33(2) of the Model Law, the award should state the
reasons upon which it is based. Having carefully
considered the Award, I have to agree that the parties
are entitled to query whether the Limitation Defence
had been considered at all by the Arbitrator, and if
rejected by the Arbitrator after due consideration, why
it was rejected. The process of arbitration is intended
as a way of determining disputes and points at issue,
and I agree with the sentiments expressed by the court
in Ascot Commodities NV v Olam International Ltd
[2002] CLC 277 and in Van der Giessen-de Noord
Shipbuilding Division BV v Imtech Marine and Off
shore BV [2009] 1 Lloyd’s Rep 273 that it is a serious
irregularity and a denial of due process which causes
substantial injustice and unfairness to the parties, if an
important issue, which the parties are entitled to
expect to be addressed, is not in fact addressed.
34. Even if the Arbitrator finds in favor of B on all its
claims of A’s inability and failure to deliver the Products
in compliance with the Relevant Standards and
conforming to the contractual specifications, and A’s
failure to develop the Products pursuant to its
contractual obligations, B’s action against A and its
claims for remedies in the Arbitration will fail, if the
Limitation Defence succeeds. The Limitation Defence
is a material point and issue which could have
rendered the Award materially different, and the failure
to consider it, or to explain the dismissal of the
Limitation Defence, results in unfairness to A, as well
as a real risk of injustice and prejudice to its case.
Based on what was set out in the Reasons for the
Award and the materials before the Tribunal, it cannot
be said that it is plain and obvious, or beyond any
doubt, that the Award would have been the same, if
the Limitation Defence had been considered
(Brunswick Bowling & Billiards Corp v Shanghai
Zhonglu Industrial Co Ltd [2011] 1 HKLRD 707; Paklito
Investment Ltd v Kolckner East Asia Ltd [1993] 2
97
HKLR 49). This is not a case in which different
defences are raised, any one of which would have
defeated the claims made, such that the failure to deal
with any one of the other defences would not have
made any difference to the award.
35. For the above reasons, I consider that there is
sufficient injustice arising out of the Award, in its
current form, which cannot be overlooked by the
Court’s conscience, and that enforcement of the Award
would offend our notions of justice.”
This finding was given under Article 34(2)(b) of the UNCITRAL Model
Law on International Commercial Arbitration, 1985 which states as
follows:
“Article 34. Application for setting aside as
exclusive recourse against arbitral award
2. An arbitral award may be set aside by the court
specified in article 6 only if:
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of
settlement by arbitration under the law of this State; or
(ii) the award is in conflict with the public policy of this
State.”
71.Shri Dewan strongly relied upon judgments from Singapore in
support of the proposition that non-consideration of material issues
would amount to a breach of natural justice and, therefore, would fit
within the ground mentioned in Section 48(1)(b). In Front Row
Investment Holdings v. Daimler South East Asia (2010) SGHC 80,
the Singapore High Court decided whether there was a breach of
natural justice in connection with the making of the award by which
98
the rights of any party has been prejudiced under Section 48(1)(a)(vii)
of the Arbitration Act, 2002 (Singapore). It referred to breach of
natural justice if an award was set aside on a basis not raised or
contemplated by the parties since the affected party would have been
deprived of its opportunity to be heard. It then held that the corollary
of this would be that an arbitral tribunal will be in the breach of natural
justice if in the course of reaching its decision it disregarded the
submissions and arguments made by the parties on the issues
without considering the merits thereof. For this, it relied upon three
Australian cases and an earlier judgment which considered these
three cases. The Court then concluded:
“53. As I have concluded earlier, an arbitrator’s failure
to consider material arguments or submissions is a
breach of natural justice. In the present case, the
Arbitrator had dismissed Front Row’s counterclaim
without considering the grounds of its counterclaim in
full because he was under the misapprehension that
Front Row had abandoned its reliance on the
Representation. Had he not been mistaken, he would
have had to decide whether or not the Representation
was false. A decision that there had been a
misrepresentation in regard thereto would have
resulted in an award in favour of Front Row, assuming
the other ingredients for a successful claim (viz,
“reliance” and “detriment”) were satisfied. It was not for
me to delve further into the question whether Front
Row’s reliance upon the Representation would have
succeeded but for the arbitrator’s misrepresentation. It
sufficed that the Arbitrator failed to consider such a
material ground. That alone was sufficient prejudice to
Front Row.
99
54. In the result, I allowed Front Row’s application and
ordered that the part of the Award dealing with Front
Row’s counterclaim and with costs of the Arbitration be
set aside as a whole. I further ordered that the part of
the Award so set aside be tried afresh by a newly
appointed arbitrator. Finally, I also ordered that the
costs of and incidental to Front Row’s application be
paid by Daimler to Front Row.”
72.In TMM Division Maritime SA v. Pacific Richfield Marine Pte
Ltd. (2013) SGHC 186, the Singapore High Court referred to Section
24(b) of the International Arbitration Act (Singapore), which requires
an award to be set aside if the rules of natural justice are breached. In
arriving at its conclusion under the caption “General Principles of
Curial Scrutiny”, the Court held “However, it does not follow, and
neither do I accept, that this process always entails sifting through the
entire record of the arbitral proceedings with a fine-tooth comb.” (See
paragraph 42). The Court also held, “the Court should not nit-pick at
the award. Infelicities are to be expected and are generally irrelevant
to the merits of any challenges” (See paragraph 45). The Court went
on to hold that the high standard of cogent reasons required by the
judiciary should not be applied to arbitration awards (See paragraph
102). The Court then outlined what standards could be applied to
arbitral awards as follows:
“103. The Singapore Court of Appeal’s decision in
Thong Ah Fat v Public Prosecutor [2012] 1 SLR 676
(“Thong Ah Fat”) which sets out the scope and content
100
of the court’s duty to give reasons offers, in my view,
an instructive parallel. I note in passing that Professor
Jeffrey Waincymer suggests that it is unhelpful to
define the content of arbitrators’ duty to give reasons
by reference to judicial standards: Waincymer at para
16.9.3. In support of his view, he referred to the High
Court of Australia decision of Westport Insurance
Corporation & Ors v Gordian Runoff Limited [2011]
HCA 37 where Kiefel J stated (at [168]–[169]) that
there is nothing in the relevant Australian legislation,
the Commercial Arbitration Act 1984, which stipulates
that the standard for giving reasons in arbitration
should be the same as the judicial standard. The same
is true of the IAA but as the court in Thong Ah Fat held
(at [19]), the general duty of a judicial body to explain
its decision is ineluctably “a function of due process,
and therefore of justice”. While there are structural
differences between a court and an arbitral tribunal, it
cannot be gainsaid that arbitrations are subject to the
same ideals of due process and justice. It bears
mentioning that Kiefel J concluded that the
requirement to give a reasoned award cannot be
devoid of content and for that reason, he was content
to adopt Donaldson LJ’s statement in Bremer (see
[101] above).
104. Therefore, in my view, the standards applicable to
judges are assistive indicia to arbitrators. While the
rules of natural justice must be applied rigorously in
arbitrations as they are in court litigation, the practical
realities of the arbitral ecosystem such as promptness
and price are also important (see Soh Beng Tee at
[63]). On this note, the following are clear from Thong
Ah Fat:
(a) The standard of explanation required in every case
must correspond to the requirements of the case.
Costs and delays are relevant factors to consider
when determining the extent to which reasons and
explanations are to be set out in detail: at [29]–[30].
(b) In “very clear cases” with specific and
straightforward factual or legal issues, the court may
even dispense with reasons. Its conclusion will be
101
sufficient because the reasons behind the conclusion
are a matter of necessary inference: at [32].
(c) Decisions or findings which do not bear directly on
the substance of the dispute or affect the final
resolution of the parties’ rights may not require
detailed reasoning. As a rule of thumb, the more
profound the consequences of a specific decision, the
greater the necessity for detailed reasoning: at [33].
(d) There should be a summary of all the key relevant
evidence but not all the detailed evidence needs to be
referred to: at [34].
(e) The parties’ opposing stance and the judge’s
findings of fact on the material issues should be set
out. However, the judge does not have to make an
explicit ruling on each and every factual issue: at [35]–
[36].
(f) The decision should demonstrate an examination of
the relevant evidence and the facts found with a view
to explaining the final outcome on each material issue:
at [36].”
73.In AKN & Anr. v. ALC & Ors. (2015) SGCA 18, the Singapore High
Court, again in considering the natural justice requirement contained in
Section 24(b) of the International Arbitration Act (Singapore), held as
follows:
“38. In particular, there is no right of appeal from
arbitral awards. That is not to say that the courts can
never intervene. However, the grounds for curial
intervention are narrowly circumscribed, and generally
concern process failures that are unfair and prejudice
the parties or instances where the arbitral tribunal has
made a decision that is beyond the scope of the
arbitration agreement. It follows that, from the courts’
perspective, the parties to an arbitration do not have a
right to a “correct” decision from the arbitral tribunal
102
that can be vindicated by the courts. Instead, they only
have a right to a decision that is within the ambit of
their consent to have their dispute arbitrated, and that
is arrived at following a fair process.”
(emphasis supplied)
It then dealt with failure to consider important issues as follows:
“46. To fail to consider an important issue that has
been pleaded in an arbitration is a breach of natural
justice because in such a case, the arbitrator would
not have brought his mind to bear on an important
aspect of the dispute before him. Consideration of the
pleaded issues is an essential feature of the rule of
natural justice that is encapsulated in the Latin adage,
audi alteram partem (see also Soh Beng Tee & Co Pte
Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R)
86 (“Soh Beng Tee”) at [43], citing Gas & Fuel
Corporation of Victoria v Wood Hall Ltd & Leonard
Pipeline Contractors Ltd [1978] VR 385 at 386). Front
Row is useful in so far as it demonstrates what must
be shown to make out a breach of natural justice on
the basis that the arbitrator failed to consider an
important pleaded issue. It will usually be a matter of
inference rather than of explicit indication that the
arbitrator wholly missed one or more important
pleaded issues. However, the inference – that the
arbitrator indeed failed to consider an important
pleaded issue – if it is to be drawn at all, must be
shown to be clear and virtually inescapable. If the facts
are also consistent with the arbitrator simply having
misunderstood the aggrieved party’s case, or having
been mistaken as to the law, or having chosen not to
deal with a point pleaded by the aggrieved party
because he thought it unnecessary (notwithstanding
that this view may have been formed based on a
misunderstanding of the aggrieved party’s case), then
the inference that the arbitrator did not apply his mind
at all to the dispute before him (or to an important
aspect of that dispute) and so acted in breach of
natural justice should not be drawn.
103
47. Front Row was recently considered in AQU v AQV
[2015] SGHC 26 (“AQU”), where the High Court judge
distilled the very principles which we have just
enunciated above (see AQU at [30]–[35]). The judge in
AQU also considered the High Court decision of TMM
Division Maritima SA de CV v Pacific Richfield Marine
Pte Ltd [2013] 4 SLR 972 (“TMM”), and reiterated the
proposition that no party to an arbitration had a right to
expect the arbitral tribunal to accept its arguments,
regardless of how strong and credible it perceived
those arguments to be (see AQU at [35], citing TMM at
[94]). This principle is important because it points to an
important distinction between, on the one hand, an
arbitral tribunal’s decision to reject an argument
(whether implicitly or otherwise, whether rightly or
wrongly, and whether or not as a result of its failure to
comprehend the argument and so to appreciate its
merits), and, on the other hand, the arbitral tribunal’s
failure to even consider that argument. Only the latter
amounts to a breach of natural justice; the former is an
error of law, not a breach of natural justice.
xxx xxx xxx
59. With respect, poor reasoning on the part of an
arbitral tribunal is not a ground to set aside an arbitral
award; even a misunderstanding of the arguments put
forward by a party is not such a ground. As noted by
this court in BLC at [86], the court “is not required to
carry out a hypercritical or excessively syntactical
analysis of what the arbitrator has written” when
considering whether an arbitral award should be set
aside for breach of natural justice. Neither should it
approach an arbitral award with a “meticulous legal
eye endeavouring to pick holes, inconsistencies and
faults … with the objective of upsetting or frustrating
the process of arbitration” (likewise at [86] of BLC).
Taking these considerations into account, we find no
breach of natural justice as there is no basis for
concluding that the Tribunal did not consider the
Liquidator’s Primary Argument. Accordingly, we
answer Appeal Issue 1 affirmatively.”
(emphasis supplied)
104
74.In BAZ v. BBA & Ors. (2018) SGHC 275, again with reference to
Section 24(b) of the International Arbitration Act (Singapore), the Court
approached the issue of natural justice as follows:
“133. It is well established that to succeed in a claim
under s 24(b) of the IAA, the claimant needs to
establish the following four elements (see Soh Beng
Tee at [29]; AKN v ALC 2015 at [48]): (a) which rule of
natural justice was breached; (b) how it was breached;
(c) in what way the breach was connected to the
making of the award; and (d) how the breach
prejudiced its rights.
134. The failure to consider an important issue that
has been pleaded in an arbitration is a breach of
natural justice because in such a case, the arbitrator
would not have brought his mind to bear on an
important aspect of the dispute before him (AKN v
ALC 2015 at [46]). It will usually be a matter of
inference rather than of explicit indication that the
arbitrator wholly missed one or more important
pleaded issues. However, this inference must be
shown to be “clear and virtually inescapable” (AKN v
ALC 2015 at [46]). The Court of Appeal cautioned
against arguments dressed up to appear as breaches
of natural justice: if the facts are also consistent with
the arbitrator simply having misunderstood the
aggrieved party’s case, or having been mistaken as to
the law, or having chosen not to deal with a point
pleaded by the aggrieved party because he thought it
unnecessary, then the inference that the arbitrator did
not apply his mind at all to the dispute before him or to
an important aspect of that dispute and so acted in
breach of natural justice should not be drawn.
xxx xxx xxx
141. Although the Majority did not comment on the
legal basis for the application of a discount rate, it
does not mean that it did not consider the issue. A
tribunal does not have to give responses on all
105
submissions made (SEF Construction Pte Ltd v Skoy
Connected Pte Ltd [2010] 1 SLR 733 at [60]).
xxx xxx xxx
159. The legal area concerning the enforcement and
setting aside of awards is governed by statute, namely
the Arbitration Act (Cap 10, 2002 Rev Ed) and the IAA.
As such, the conceptual framework outlined in UKM
can be helpful to navigate public policy considerations
in arbitration, even though the subject matter of the
public policies that can be raised under Art 34(2)(b)(ii)
of the Model Law and Art V(2)(b) of the New York
Convention may include both socio-economic policies
and legal policies. When a challenge on the ground of
public policy is brought, the outline draws attention to
the importance of conducting a forensic exercise to
identify whether the alleged public policy exists, and
the criteria influencing the identification as explained in
UKM are applicable. The balancing exercise in the
context of arbitration is between the policy of enforcing
arbitral awards – as encapsulated in s 19B(1) of the
IAA which states that awards are “final and binding on
the parties” and the judicial policy of minimal curial
intervention – and the alleged public policy which the
award purportedly violates. This balance is generally in
favour of the policy of enforcing arbitral awards, and
only tilts in favour of the countervailing public policy
where the violation of that policy would “shock the
conscience” or would be contrary to “the forum’s most
basic notion of morality and justice”. In determining
whether the balance tilts towards the countervailing
public policy, it is important to consider both the
subject nature of the public policy, the degree of
violation of that public policy and the consequences of
the violation.”
75. In Campos Brothers Farms v. Matru Bhumi Supply Chain Pvt. Ltd.
(2019) 261 DLT 201, the Delhi High Court had to consider the
enforcement of a foreign award. The arbitrator in the aforesaid case
106
did not give any finding on maintainability of the arbitration
proceedings, which was argued before her. In this fact circumstance,
the Delhi High Court held:
“55. In any case, the respondent nos. 1 and 2 had also
made submissions on merit before the Arbitrator.
Though the learned counsel for the petitioner
submitted that the same were rightly excluded from
consideration by the Arbitrator as the Arbitrator had
never sought for the same, the Award does not reflect
any such reason given by the Arbitrator for excluding
them from consideration. The Arbitrator does not
record a finding that she has intentionally ignored such
submissions as they were filed belatedly or beyond
what was permitted. In fact, as noted above, as per the
Arbitrator no submission was filed by the respondents
by 13.06.2016, which is factually incorrect.
56. In exercise of powers under Section 48 of the Act,
this Court cannot consider the submissions made by
the respondent nos. 1 and 2 in their e-mail dated
13.06.2016 on merit as if it is a Court of Original
Jurisdiction and find out whether such submission of
the respondent nos. 1 and 2 had any merit or not.
Once it is found that the Arbitrator has ignored the
submissions of a party in totality, whatever be the merit
of the submissions, in my opinion, such Award cannot
be enforced being in violation of the Principles of
Natural Justice and contrary to the public policy of
India as stated in sub-Section 2(b) read with
Explanation 1(iii) of Section 48 of the Act.
xxx xxx xxx
76. It may be correct that the Arbitrator, upon
considering evidence led before it by the parties,
comes to a conclusion that in the given facts the
transaction, though under different Contracts, is one or
that the corporate veil deserves to be lifted, however,
for arriving at such a finding the Arbitrator has to give
reasons for the same. This Court, in exercise of its
power under Section 48 and 49 of the Act, cannot
107
supplant such reasons by considering the claims and
defence of the parties on merit. Whether the request of
the respondent no. 1 to the petitioner to make
shipments in the name of respondent no. 2 under
Contracts that had been executed between the
petitioner and respondent no. 1, would entitle the
petitioner to file a consolidated statement of claim
against respondent nos. 1 and 2 or not, was an issue
to be determined by the Arbitrator and reasons for
such determination were to be given in the Award.
From a reading of the Award it seems that the
Arbitrator was neither alive to the issue whether such
claims against different Contracts can be consolidated
as one, nor was she alive to the fact that joint and
several liability cannot be fastened on respondent nos.
1 and 2 without lifting the corporate veil and giving
reasons for the same. The Award in question clearly
qualifies as a non speaking Award.
xxx xxx xxx
81. In any case, as noted above, if the arbitrator had
considered this issue giving reasons therefore, this
Court may not have the power under Section 48 of the
Act to test the validity of such reasons, however, the
present is the case where the arbitrator has not only
not given any reasons for her conclusion but infact, the
Award indicates that the Arbitrator is not even alive to
such an issue.”
Thus, the ground on which the award was not enforced for failure to
consider a material issue relating to maintainability of the arbitral
proceedings was pigeon-holed not under Section 48(1)(b), but under
the “public policy of India” ground, stating that such a thing would
violate the most basic notion of justice.
76.Given the fact that the object of Section 48 is to enforce foreign
awards subject to certain well-defined narrow exceptions, the
108
expression “was otherwise unable to present his case” occurring in
Section 48(1)(b) cannot be given an expansive meaning and would
have to be read in the context and colour of the words preceding the
said phrase. In short, this expression would be a facet of natural
justice, which would be breached only if a fair hearing was not given
by the arbitrator to the parties. Read along with the first part of Section
48(1)(b), it is clear that this expression would apply at the hearing
stage and not after the award has been delivered, as has been held in
Ssangyong (supra). A good working test for determining whether a
party has been unable to present his case is to see whether factors
outside the party’s control have combined to deny the party a fair
hearing. Thus, where no opportunity was given to deal with an
argument which goes to the root of the case or findings based on
evidence which go behind the back of the party and which results in a
denial of justice to the prejudice of the party; or additional or new
evidence is taken which forms the basis of the award on which a party
has been given no opportunity of rebuttal, would, on the facts of a
given case, render a foreign award unenforceable on the ground that
a party has been unable to present his case. This must, of course, be
with the caveat that such breach be clearly made out on the facts of a
given case, and that awards must always be read supportively with an
109
inclination to uphold rather than destroy, given the minimal
interference possible with foreign awards under Section 48.
77.All the cases cited by Mr. Nakul Dewan are judgments based on the
language of the particular statute reflected in each of them – for
example, Section 68 of the Arbitration Act, 1996 (U.K), Section 23(2) of
the Hong Kong Old Arbitration Ordinance (Cap 391), Section 24(b) of
the International Arbitration Act (Singapore) and Section 48(1)(a)(vii) of
the Arbitration Act, 2002 (Singapore), all of which are differently
worded from Section 48(1)(b). Each of these statutes deal with a
breach of natural justice which, as we have seen, is a wider
expression than the expression “unable to present his case”. Thus, it is
not possible to hold that failure to consider a material issue would fall
within the rubric of Section 48(1)(b).
78.Having said this, however, if a foreign award fails to determine a
material issue which goes to the root of the matter or fails to decide a
claim or counter-claim in its entirety, the award may shock the
conscience of the Court and may not be enforced, as was done by the
Delhi High Court in Campos (supra) on the ground of violation of the
public policy of India, in that it would then offend a most basic notion
of justice in this country
1
. It must always be remembered that poor
1 In Sssangyong (supra), this Court cautioned that this ground would only be attracted with
the following caveat:
“48. However, when it comes to the public policy of India argument based upon “most
basic notions of justice”, it is clear that this ground can be attracted only in very
110
reasoning, by which a material issue or claim is rejected, can never
fall in this class of cases. Also, issues that the tribunal considered
essential and has addressed must be given their due weight – it often
happens that the tribunal considers a particular issue as essential and
answers it, which by implication would mean that the other issue or
issues raised have been implicitly rejected. For example, two parties
may both allege that the other is in breach. A finding that one party is
in breach, without expressly stating that the other party is not in
breach, would amount to a decision on both a claim and a counter-
claim, as to which party is in breach. Similarly, after hearing the
parties, a certain sum may be awarded as damages and an issue as
to interest may not be answered at all. This again may, on the facts of
a given case, amount to an implied rejection of the claim for interest.
The important point to be considered is that the foreign award must be
read as a whole, fairly, and without nit-picking. If read as a whole, the
said award has addressed the basic issues raised by the parties and
has, in substance, decided the claims and counter-claims of the
parties, enforcement must follow.
exceptional circumstances when the conscience of the Court is shocked by infraction of
fundamental notions or principles of justice… However, we repeat that this ground is
available only in very exceptional circumstances, such as the fact situation in the present
case. 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, as we have seen, is contrary to the ethos of Section 34 of the
1996 Act, as has been noted earlier in this judgment.”
111
Violation of FEMA Rules
79.It has been argued by the Appellants, based on the Non-Debt
Instrument Rules, that a foreign award by which shares have to be
purchased at a discounted value, would violate the aforesaid Rules,
and therefore, would amount to a violation of the fundamental policy of
Indian law. Resultantly, the Appellants contended that as a result of
this, the award in the present case would not be enforceable in India.
80.The relevant provisions of the aforesaid rules are set out hereinbelow:
“2. Definitions:
xxx xxx xxx
(ac) “investment” means to subscribe, acquire, hold or
transfer any security or unit issued by a person
resident in India;
Explanation:-
(i) Investment shall include to acquire, hold or transfer
depository receipts issued outside India, the
underlying of which is a security issued by a person
resident in India;
(ii) for the purpose of LLP, investment shall mean
capital contribution or acquisition or transfer of profit
shares;
xxx xxx xxx
3. Restriction on investment in India by a person
resident outside India.- Save as otherwise provided
in the Act or rules or regulations made thereunder, no
person resident outside India shall make any
investment in India :
112
Provided that an investment made in accordance with
the Act or the rules or the regulations made thereunder
and held on the date of commencement of these rules
shall be deemed to have been made under these rules
and shall accordingly be governed by these rules:
Provided further that the Reserve Bank may, on an
application made to it and for sufficient reasons and in
consultation with the Central Government, permit a
person resident outside India to make any investment
in India subject to such conditions as may be
considered necessary.
xxx xxx xxx
9. Transfer of equity instruments of an Indian
company by or to a person resident outside India.-
A person resident outside India holding equity
instruments of an Indian company or units in
accordance with these rules or a person resident in
India, may transfer such equity instruments or units so
held by him in compliance with the conditions, if any,
specified in the Schedules of these rules and subject
to the terms and conditions prescribed hereunder:
(3) A person resident in India holding equity
instruments of an Indian company or units, may
transfer the same to a person resident outside India by
way of sale, subject to the adherence to entry routes,
sectoral caps or investment limits, pricing guidelines
and other attendant conditions as applicable for
investment by a person resident outside India and
documentation and reporting requirements for such
transfers as may be specified by the Reserve Bank in
consultation with the Central Government from time to
time;
xxx xxx xxx
21. Pricing guidelines –
(1) The pricing guidelines specified in these rules shall
not be applicable for any transfer by way of sale done
in accordance with Securities and Exchange Board of
113
India regulations where the pricing is specified by
Securities and Exchange Board of India.
(2) Unless otherwise prescribed in these rules, the
price of equity instruments of an Indian company, -
xxx xxx xxx
(b) transferred from a person resident in India to a
person resident outside India shall not be less than,-
xxx xxx xxx
(iii) the valuation of equity instruments done as per any
internationally accepted pricing methodology for
valuation on an arm’s length basis duly certified by a
Chartered Accountant or a Merchant Banker registered
with the Securities and Exchange Board of India or a
practising Cost Accountant, in case of an unlisted
Indian company.”
81.Based on the aforesaid Rules, the Appellants have argued that the
transfer of shares from the Karias, who are persons resident in India,
to the Respondent No.1, who is a person resident outside India,
cannot be less than the valuation of such shares as done by a duly
certified Chartered Accountant, Merchant Banker or Cost Accountant,
and, as the sale of such shares at a discount of 10% would violate
Rule 21(2)(b)(iii), the fundamental policy of Indian law contained in the
aforesaid Rules would be breached; as a result of which the award
cannot be enforced.
82.Before answering this question, it is important to first advert to the
decision of the Delhi High Court in Cruz (supra). The learned Single
Judge was faced with a similar problem of a foreign award violating the
114
provisions of FEMA. In an exhaustive analysis, the learned Single
Judge referred to Renusagar (supra) and then held:
“97.It plainly follows from the above that a
contravention of a provision of law is insufficient to
invoke the defence of public policy when it comes to
enforcement of a foreign award. Contravention of any
provision of an enactment is not synonymous to
contravention of fundamental policy of Indian law. The
expression fundamental Policy of Indian law refers to
the principles and the legislative policy on which Indian
Statutes and laws are founded. The expression
“fundamental policy” connotes the basic and substratal
rationale, values and principles which form the
bedrock of laws in our country.
98. It is necessary to bear in mind that a foreign award
may be based on foreign law, which may be at
variance with a corresponding Indian statute. And, if
the expression “fundamental policy of Indian law” is
considered as a reference to a provision of the Indian
statue, as is sought to be contended on behalf of
Unitech, the basic purpose of the New York
Convention to enforce foreign awards would stand
frustrated. One of the principal objective of the New
York Convention is to ensure enforcement of awards
notwithstanding that the awards are not rendered in
conformity to the national laws. Thus, the objections to
enforcement on the ground of public policy must be
such that offend the core values of a member State's
national policy and which it cannot be expected to
compromise. The expression “fundamental policy of
law” must be interpreted in that perspective and must
mean only the fundamental and substratal legislative
policy and not a provision of any enactment.
xxx xxx xxx
102. Although, this contention appears attractive,
however, fails to take into account that there has been
a material change in the fundamental policy of
exchange control as enacted under FERA and as now
contemplated under FEMA. FERA was enacted at the
115
time when the India's economy was a closed economy
and the accent was to conserve foreign exchange by
effectively prohibiting transactions in foreign exchange
unless permitted. As pointed out by the Supreme Court
in Life Insurance Corporation of India v. Escorts
Ltd. (supra), the object of FERA was to ensure that the
nation does not lose foreign exchange essential for
economic survival of the nation. With the liberalization
and opening of India's economy it was felt that FERA
must be repealed. FERA was enacted to replace the
Foreign Exchange Regulation Act, 1947 which was
originally enacted as a temporary measure. The
Statement of Objects and Reasons of FERA indicate
that FERA was enacted as the RBI had suggested and
Government had agreed on the need for regulating,
among other matters, the entry of foreign capital in the
form of branches and concerns with substantial non-
resident interest in them, the employment of foreigners
in India etc.
xxx xxx xxx
110. The contention that enforcement of the Award
against Unitech must be refused on the ground that it
violates any one or the other provision of FEMA,
cannot be accepted; but, any remittance of the money
recovered from Unitech in enforcement of the Award
would necessarily require compliance of regulatory
provisions and/or permissions.”
83.This reasoning commends itself to us. First and foremost, FEMA -
unlike FERA - refers to the nation’s policy of managing foreign
exchange instead of policing foreign exchange, the policeman being
the Reserve Bank of India under FERA. It is important to remember
that Section 47 of FERA no longer exists in FEMA, so that transactions
that violate FEMA cannot be held to be void. Also, if a particular act
violates any provision of FEMA or the Rules framed thereunder,
116
permission of the Reserve Bank of India may be obtained post-facto if
such violation can be condoned. Neither the award, nor the agreement
being enforced by the award, can, therefore, be held to be of no effect
in law. This being the case, a rectifiable breach under FEMA can never
be held to be a violation of the fundamental policy of Indian law. Even
assuming that Rule 21 of the Non-Debt Instrument Rules requires that
shares be sold by a resident of India to a non-resident at a sum which
shall not be less than the market value of the shares, and a foreign
award directs that such shares be sold at a sum less than the market
value, the Reserve Bank of India may choose to step in and direct that
the aforesaid shares be sold only at the market value and not at the
discounted value, or may choose to condone such breach. Further,
even if the Reserve Bank of India were to take action under FEMA, the
non-enforcement of a foreign award on the ground of violation of a
FEMA Regulation or Rule would not arise as the award does not
become void on that count. The fundamental policy of Indian law, as
has been held in Renusagar (supra), must amount to a breach of
some legal principle or legislation which is so basic to Indian law that it
is not susceptible of being compromised. “Fundamental Policy” refers
to the core values of India’s public policy as a nation, which may find
expression not only in statutes but also time-honoured, hallowed
principles which are followed by the Courts. Judged from this point of
117
view, it is clear that resistance to the enforcement of a foreign award
cannot be made on this ground.
84.The Appellants, however, relied upon certain observations in Dropti
Devi v. Union of India (2012) 7 SCC 499. In that case, a challenge
was made to the constitutional validity of Section 3 of Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(hereinafter referred to as “COFEPOSA”), stating that by reason of the
new legal regime articulated in FEMA, in replacement of FERA, the
said provision has become unconstitutional in the changed situation.
This submission was repelled by this Court stating:
“66. It is true that provisions of FERA and FEMA differ
in some respects, particularly in respect of penalties. It
is also true that FEMA does not have provision for
prosecution and punishment like Section 56 of FERA
and its enforcement for default is through civil
imprisonment. However, insofar as conservation
and/or augmentation of foreign exchange is
concerned, the restrictions in FEMA continue to be as
rigorous as they were in FERA. FEMA continues with
the regime of rigorous control of foreign exchange and
dealing in the foreign exchange is permitted only
through authorised person. While its aim is to promote
the orderly development and maintenance of foreign
exchange markets in India, the Government's control
in matters of foreign exchange has not been diluted.
The conservation and augmentation of foreign
exchange continues to be as important as it was under
FERA. The restrictions on the dealings in foreign
exchange continue to be as rigorous in FEMA as they
were in FERA and the control of the Government over
foreign exchange continues to be as complete and full
as it was in FERA.
118
67. The importance of foreign exchange in the
development of a country needs no emphasis. FEMA
regulates the foreign exchange. The conservation and
augmentation of foreign exchange continue to be its
important theme. Although contravention of its
provisions is not regarded as a criminal offence, yet it
is an illegal activity jeopardising the very economic
fabric of the country. For violation of foreign exchange
regulations, penalty can be levied and its non-
compliance results in civil imprisonment of the
defaulter. The whole intent and idea
behind Cofeposa is to prevent violation of foreign
exchange regulations or smuggling activities which
have serious and deleterious effect on national
economy.”
It is important to note that this Court recognized that FEMA, unlike
FERA, does not have any provision for prosecution and punishment
like that contained in Section 56 of FERA. The observations as to
conservation and/or augmentation of foreign exchange, so far as
FEMA is concerned, were made in the context of preventive detention
of persons who violate foreign exchange regulations. The Court was
careful to note that any illegal activity which jeopardises the economic
fabric of the country, which includes smuggling activities relating to
foreign exchange, are a serious menace to the nation and can be
dealt with effectively, inter alia, through the mechanism of preventive
detention. From this to contend that any violation of any FEMA Rule
would make such violation an illegal activity does not follow. In fact,
even if the reasoning contained in this judgment is torn out of its
specific context and applied to this case, there being no alleged
119
smuggling activity which involves depletion of foreign exchange, as
against foreign exchange coming into the country as a result of sale of
shares in an Indian company to a foreign company, it does not follow
that such violation, even if proved, would breach the fundamental
policy of Indian law.
Challenge to Enforcement of the Foreign Award in this case on facts
85.Dr. Singhvi and Shri Dewan arguing for the Appellants have raised
fourteen submissions, all of which fall under Section 48(1)(b) read with
Explanation 1 (ii) and (iii) to Section 48(2)(b) of the Arbitration Act,
taken either cumulatively as grounds of objection or separately,
depending upon the nature of the ground argued. We now deal with
each of these grounds seriatim.
I. The Tribunal failed to deal with the Appellants’ counter-claim
pertaining to the incorporation of Jaguar Communication
Consultancy Services Private Limited.
86.According to the Appellants, this ground of objection – i.e. the
incorporation of Jaguar - was pleaded by them as a “concealed
breach”, which became known to them only at a much later stage of
the arbitral proceedings. Despite the tribunal specifically ruling in the
First Partial Final Award that a non-defaulting party could rely on a
“concealed breach” and treat the same as an unrectified event of
default under clause 23.4 of the JVA, the submission made by the
120
Appellant in this behalf was ignored in its entirety. This was countered
by Respondent No.1 by stating that there was no “concealed breach”
at all, inasmuch as, as early as 05.10.2012, the Appellant had filed a
request calling upon the Respondent to produce documents which
included the list of clients, employees and disclosure of business
activities of Jaguar. These documents were called for in order to
buttress the case of the Appellant that the Respondent was in breach
of clause 21.1 of the JVA, and to ascertain whether the employees of
Jaguar were passing on Ravin’s confidential information to Jaguar. In
response to this request, on 12.10.2012, the Respondent stated that
no case of breach of clause 21.1 of the JVA had been pleaded; that
Jaguar does not have any business of producing cables; and that it
had been set up for the sole purpose of hiring office premises. The
Memorandum of Association and the Articles of Association of Jaguar
were also handed over to the Appellants. What was stressed is that at
no time after 12.10.2012 did the Appellants seek the leave of the
tribunal to amend their counter-claim.
87.It must be remembered that the First Partial Final Award was made
only on 15.02.2013. When the Respondent No.1 made its oral
submissions and filed written closing submissions on 19.07.2013, the
Appellants did not plead any case of breach due to Jaguar. It was only
at the fag end, i.e. in the Appellants’ Responsive Closing Submissions,
121
filed on 20.08.2013, that the tribunal was invited to rule on this breach.
Obviously, by this time, the Respondent did not have any opportunity
to controvert this case put up for the first time by the Appellants. Since
this case had been put up for the first time at the fag end of the
proceedings, before passing of the Second Partial Final Award dated
19.12.2013, the arbitrator cannot be faulted for not dealing with this
case. In the Second Partial Final Award, the tribunal also recorded that
the Appellants’ case on clause 21.1 was limited to the acquisition of
ACPL and direct sales into India. The argument of the Appellant, made
at the fag end of the proceedings, that since the Respondent held
99.99 % shares of Jaguar, which is in a similar cable business as
Ravin, as evidenced by the Memorandum and Articles of Association
of Jaguar, is a case that has never been pleaded. This being the case,
it is obvious that the arbitrator was within his jurisdiction not to deal
with this so-called counter-claim at all. This objection, therefore, does
not fall within any of the grounds mentioned in Section 48 and must,
therefore, be rejected.
II. The Tribunal failed to make a determination on the Appellants’
counter-claim concerning ouster of the Appellants
88.According to the Appellants, the tribunal failed to make a
determination on the Appellants’ counter-claim that the Respondent’s
efforts to oust Appellant No.1 and his family from Ravin amounted to a
122
breach of the JVA. In answer to this submission, the tribunal, in the
Second Partial Final Award, expressly set out the following:
“6. Further, the parties both identify different catalysts
for the breakdown of the JVA relationship. In short, the
Respondents submitted that, as far as they were
concerned, during the tenure of Mr Sarogni their
relationship with the Claimant was good and both
parties were working together to make Ravin a more
successful company. The swing point came and the
trouble started brewing when Ms Farise was sent out
to head the affairs of Ravin with the single agenda to
take control of Ravin and oust the Karias. The
Respondents' overall case theory therefore focuses on
a clash of personalities combined with the acquisition
of ACPL and the Claimant's overriding intention to
create a situation where the Karias appeared to be in
breach so that the Claimant could buy the
Respondents out for a lower price.
7. The Claimant submitted that whilst relations had not
been good from the time of the JVA onwards, matters
took a turn for the worse after 15 September 2011,
when the Integration Period came to an end. The
Claimant contends that up until this point Mr Karia had
been able to maintain a large degree of control over
the Company, both because of the arrangements in
the Integration Period and the fact that Mr Sarogni had
been absent from India for long periods of time. The
end of the Integration Period was followed shortly after
by a change of CEO. Pursuant to the Board Resolution
of 1 November 2011, Ms Farise was appointed CEO of
Ravin (H16/3381) and came to India with the
legitimate intent to actually take over the day to day
management of Ravin. Indeed, the Claimant does not
shy away from the fact that Ms Farise did intend to
take control of Ravin, despite the Respondents' own
particular interpretation of this event and motive. The
Claimant's overall case theory therefore focuses not
so much on any clash of personalities per se, but on
the date when power and control under the terms of
the JVA was to shift decisively away from Mr Karia. It
123
is the Claimant’s case that Mr Karia was simply not
willing to abide by such provisions and wished to
remain in day to day control of Ravin and prevent the
Claimant from exercising such control. In other words
there is a straightforward division between the parties'
rival position. Neither party suggested that both
versions could in essence be correct. The Tribunal
therefore has to make findings as to where the
evidence lies and which version fits the facts as
found.”
This case was answered in great detail, finding that it was the
Appellants and not the Respondent No.1 who materially breached the
JVA. Given this position, the tribunal finally held:
“291. Given the findings made by the Tribunal in favour
of the Claimant's allegations of material breach it
naturally follows that the Respondents do not succeed
in these allegations of mismanagement
292. The Respondents were themselves in material
breach with regard to the whole conduct surrounding
Mr Dhall's appointment of Ms Mathure and the so
called authorisation form. The Claimant was not in
material breach in suspending Mr Dhall. Far from it.
The Respondents, however, were plainly in material
breach by their reaction to this suspension effectively
leading to a one day strike.
293. The question of the attendance of Claimant
nominees at the Akruti office is another chapter of the
saga in which the Respondents do not emerge without
serious criticism. As is clear from this Award the
Respondents engendered a toxic atmosphere at Akruti
in January 2012 (even in its fire stricken state) and
such was the situation at the ground that it was not
really possible for Claimant nominees to attend without
fear of their own safety.
294. Lastly, the circumstances surrounding the
appointment of the CEO and CFO does not give rise to
any conceivable material breach on the part of the
124
Claimant. The Claimant was entitled to nominate a
CFO and the CEO. They did so. The Respondents did
not oppose the appointment of Ms Farise.
Nevertheless they did obstruct her at every turn once
she was appointed because it became apparent that
she intended pursuant to the JVA to take day to day
control of Ravin and the Respondents did not wish this
to happen. As regards Mr Brunetti, the CFO, the
Respondents did veto his appointment. This was not a
material breach on their part as it was their right to do
so under Schedule IX to the JVA. Nevertheless it
cannot be said to be a material breach by the
Claimant. That is unsustainable.
CONCLUSION
295. The Respondents have not succeeded in
establishing any material breach of the JVA committed
by the Claimant.”
89.This being the case, it would be wholly incorrect to state that the
tribunal has failed to make a determination on the Appellants’
counter-claim that the Respondent’s efforts to oust Appellant No. 1
and his family amounted to a breach of the JVA. While considering
the case of the Appellants and the cross-case of the Respondent, the
tribunal has adverted to pleadings, evidence and has given detailed
findings as to why the Appellants are in material breach of the JVA,
as a result of which the Respondent cannot be said to be in material
breach of the JVA. This being the case, it cannot be said that this
material issue has not been answered by the Second Partial Final
Award. This ground, therefore, also does not fall within any of the
stated pigeon-holes under Section 48.
125
III. The Tribunal failed to make a determination on the Appellants’
counter-claim concerning registration of the Ravin Trademark
90.Dr. Singhvi then argued that the tribunal failed to make any
determination on the Appellants’ counter-claim that the Respondent
No.1’s surreptitious attempts to register the Ravin trademark in its own
name was a material breach of the JVA. When the First Partial Final
Award is perused, it becomes clear that what was argued before the
arbitrator, and therefore answered by the arbitrator, is whether the
tribunal had jurisdiction to go into the Trademark License Agreement.
The First Partial Final Award records:
“IX. Tribunal's ruling on jurisdiction
134. Finally, there were before the Tribunal three short
points on the scope of the jurisdiction of the Tribunal
under the arbitration agreement in the JVA.
135. Sensibly, the parties only made very brief
submissions on these points. At one point, it seemed
that the Respondents' accepted that the Tribunal did
not have the jurisdiction which it contended for, but
instead was inviting the Claimant to agree upon an
expansion of the Tribunal's jurisdiction in order to
avoid any possibility of multiplicity of proceedings
under different agreements.
136. In the end, however, the Respondents' counsel
did invite the Tribunal to rule upon these short points.
The three points were as follows:
1) Whether under Clause 27.1 of the JVA the Tribunal
has jurisdiction to decide who has the right to register
the Ravin trademark.
126
2) Whether the Tribunal has jurisdiction to decide
alleged breaches of the Trademark License
Agreement.
3) Whether the Tribunal has jurisdiction to decide
alleged breaches of the Technical Assistance
Agreement.
137. The Tribunal concludes that it does not have
jurisdiction in respect of any of these three matters.
138. The ownership of the Ravin trademark and the
right to register the same is not a dispute arising out
of, relating to, or in connection with the JVA. There is
no provision in the JVA permitting the parties to the
JVA to change the name of Ravin Cables to a new
name incorporating the word Prysmian – see Clause
9. There is also a provision for Ravin to enter into a
trademark licence agreement in the form of Schedule
5, but that agreement deals with the licence by
Prysmian and not the Ravin trademark.
139. Quite simply a dispute regarding the right to
register the Ravin trademark falls outside of the scope
of the arbitration clause.
140. This makes it unnecessary for the Tribunal to
consider further the interesting and difficult questions
of the arbitrability of such disputes, even if they were
held to fall within the scope of the arbitration
agreement. The Tribunal makes no finding on this
point, it not having been argued, but observes that it is
by no means a foregone conclusion that such disputes
would under English law be arbitrable.
141. Further, the disputes respectively under the
Trademark License Agreement (in the form of
Schedule 5) and the Technical Assistance Agreement
(in the form of Schedule 6) fall outside the jurisdiction
of the Tribunal.
142. It is common ground that the parties did enter into
a Trademark License Agreement in the form of
Schedule 5 and the Technical Assistance Agreement in
the form of Schedule 6.
127
143. Equally, it is common ground that these
agreements made provision for disputes to be referred
to arbitration in Milan, ltaly under Italian law. There is
no warrant to construe the arbitration agreement in the
JVA as somehow trespassing upon the arbitration
agreement contained in two agreements, which the
parties agreed to enter into and, in fact, did enter into
with these separate dispute resolution provisions.
Disputes under or concerning the Trademark License
Agreement and Technical Assistance Agreement are to
be resolved in accordance with the dispute resolution
provisions under those agreements. The Tribunal
observes that, if there had been a dispute under
Clause 9 of the JVA as to whether in fact the covenant
to enter into those two further agreements had been
complied with, then this would be a dispute under the
JVA agreement. Nevertheless, this is not the case
being advanced by the Respondents in their pleaded
case.”
91.We have gone through the transcript of the hearings on both 12
th
and
13
th
December, 2012 before the arbitrator which clearly show that no
argument was ever made by the Appellants before the tribunal that the
Respondent had surreptitiously attempted to register the Ravin
Trademark in its own name, and therefore was in breach of the
competition clauses of the JVA. We are thus satisfied that this
argument again appears to be an afterthought which has no
foundation in the submissions made before the learned arbitrator. This
submission does not again fall within any of the grounds referred to
under Section 48.
IV. The Tribunal acted contrary to the Parties’ expert witnesses and
ignored critical evidence with regard to the acquisition of ACPL
128
92.Dr. Singhvi argued that the tribunal acted contrary to the admissions of
the parties’ expert witnesses and ignored critical evidence with regard
to the acquisition of ACPL. Further, since the Respondent failed to
produce the relevant documents regarding the competing business
carried out by ACPL, an adverse inference ought to be drawn against
the Respondent No.1, which the Appellants allege the learned
arbitrator failed to do.
93.The learned arbitrator indicated his approach in the Second Partial
Final Award as follows:
“23. Whilst therefore the parties' detailed submissions
have set the parameters for the Tribunal's decisions
and have assisted the Tribunal in reaching its
conclusions on the individual particulars of alleged
material breach, it has simply not been possible and
nor is it desirable for the Tribunal to undertake an
exhaustive analysis of each sub-argument and each
piece of evidence referred to. Instead, in disposing of
this dispute the Tribunal will focus, in large part, on the
heart of the rival contentions with respect to the
dispute as a whole and the individual allegations in the
rival Determination Notices. This requires the detailed
submissions to be substantially stripped back to reveal
the essential complaint being made, which can then be
assessed against the terms of the JVA and the rival
theories.
24. In respect of the rival theories, the Tribunal has not
lost sight of the broader case theories which frame the
disputed events and allegations. The veracity of the
individual and collective allegations arising from the
crucial period between November 2011 and March
2012 can and indeed must be tested by reference to
129
the parties' rival theories and should not necessarily
be isolated and examined in the abstract.”
94.The tribunal then went into the acquisition of ACPL in some detail,
from paragraphs 216 to 244 of the Second Partial Final Award, and
held that Mr. Karia’s contemporaneous reaction to the acquisition of
Draka, which led to an indirect acquisition of 60 subsidiaries, one of
which was ACPL, was that he was very happy that the Respondent
No. 1 had so expanded its business. Several congratulatory emails
are referred to by the arbitrator. Further, the arbitrator found that Mr.
Karia’s statements in cross-examination showed that he had
knowledge of this acquisition way back in November 2010 but never
complained of material breach of the JVA. The arbitrator also
examined evidence as to serious actual loss or harm, finding no such
credible evidence, except occasional instances of both companies
tendering for the same business. It was held that there was no reliable
evidence that the Ravin’s business had been lost post the ‘Draka
acquisition’ or that there had been any diversion of business from
Ravin to ACPL or vice versa. The arbitrator then held that ACPL is a
small specialist cable business and operates principally in the area of
instrumentation cables, which is not the area in which Ravin operates.
The learned arbitrator also adverted to the evidence of the expert
witnesses in arriving at this conclusion. It also made a reference to Mr.
130
Karia’s cross-examination, stating that Mr. Karia himself considered
ACPL to be the 50
th
or 60
th
competitor given its small business. The
finding, therefore, was that the acquisition of ACPL did not in any
manner amount to a serious material breach of the JVA.
95.Insofar as the failure to produce documents by Respondent No.1 with
regard to its subsidiary ACPL is concerned, it must be remembered
that ACPL is not a direct subsidiary of Respondent No. 1, being an
indirect subsidiary of Respondent No.1’s parent company consequent
upon the acquisition of Draka. It has an independent Board of
Directors. Above all, ACPL was not a party to these arbitral
proceedings. The tribunal therefore made Procedural Order No. 5
dated 27.11.2012 in which it specifically recorded that if the Appellants
wish to pursue their request for disclosure of further documents qua
ACPL, they must approach the Courts to do so, as it was not within
the arbitrator’s power to direct a person who is not party to the
proceedings to produce documents. At no stage did the Appellants act
in compliance of this Procedural Order and approach an English Court
to direct ACPL to produce documents within its possession. This being
so, as has been held hereinabove, a party cannot complain of breach
of natural justice when it was within the control of such party to
approach a U.K Court for production of such documents. This not
131
having been done, it is clear that no adverse inference, as has been
argued, could have been drawn by the learned arbitrator. This ground
also, therefore, does not fall within any of the grounds argued before
us under Section 48.
V. Perverse Interpretation of the JVA
96.According to Dr. Singhvi, the tribunal’s interpretation of clause 21 of
the JVA is perverse. As has been held, referring to some of the
judgments quoted hereinabove, in particular Shri Lal Mahal (supra),
the interpretation of an agreement by an arbitrator being perverse is
not a ground that can be made out under any of the grounds
contained in Section 48(1)(b). Without therefore getting into whether
the tribunal’s interpretation is balanced, correct or even plausible, this
ground is rejected.
VI. The Tribunal ignored critical evidence with regard to the issue of
agency agreements and Direct Sales
97.Dr. Singhvi argued that the tribunal ignored admissions of the
Respondent and other critical evidence with regard to the issue of
agency agreements and direct sales. The Second Partial Final Award
deals with this issue and the issue regarding agreements with agents
in great detail from paragraph 245 to paragraph 279. As many as five
reasons are given, after examining the evidence, for rejecting the plea
that agency or distribution agreements were entered into in violation of
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the JVA. Further, so far as direct sales into India were concerned, after
considering the pleadings and the evidence, the tribunal found that the
Appellants altered their case from their pleaded case and now
advanced a case that the fact of direct sales amounts to a material
breach of clauses 8 and 20 of the JVA, contrary to what was stated in
their determination notice. Even otherwise, the tribunal found that
there was no material breach for the following reason:
“277. Those sales, however, were for all practical
purposes made up of sales of telecom cables, industrial
special cables, automotive cables, network and
component and services. Ravin did not manufacture
those types of cables. Indeed over 85% of the sales
came from two affiliates manufacturing telecom cables,
which Ravin did not manufacture and had no
experience in selling either. Indeed the Tribunal accepts
the evidence of Ms Farise and Mr Koch and Mr Karve
on this issue (see, inter alia, §§5-8, E(I)/10/56-57, §23,
E(I)/26/206, §23, E(I)/26/207, §§18- 32. E(I)/23/184-
186, 11 December 2012 hearing, pp.134-140, §46,
E(I)/17/92, Day 2, pp.83-86, §18 of, E(l)/24/189). This
renders the whole argument of diversion of sales or
breach of good faith by virtue of these direct sales
somewhat academic.
278. Indeed these figures illustrate exactly why the
Respondents placed so much emphasis on their
argument that the mere fact of sales was a breach
irrespective of anything else. This was once more how it
was put by Mr Salve SC in his oral closing argument
(Day 10, pp. 183-185) The Tribunal has, however, found
against the Respondents on this point.”
98. Having perused the Award in this behalf, it cannot be said that the
tribunal has in any manner ignored admissions or other critical
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evidence with regard to the issue of direct sales. In any case, if at all,
this ground goes to alleged perversity of the award, which as has
been held by us hereinabove, is outside the ken of Section 48.
VII. The Tribunal adopted disparate thresholds in determining
material breach
99.Dr. Singhvi has then argued that the tribunal adopted disparate
thresholds for determining material breach between the Appellant and
the Respondent. Again, all the allegations made under this ground go
to perversity of the award, which is outside the ken of Section 48. That
apart, the tribunal indicates in paragraphs 104 to 106 of the Second
Partial Final Award, that no disparate thresholds in determining
material breach was adopted as follows:
“(3) Tribunal's conclusions on the Events of
Default relied upon by the Claimant
104. The Tribunal has in mind the test for
establishment of material breach as identified in
paragraphs 37-47 above. The Claimant has
particularised a number of different aspects of the
conduct of the Respondents concentrating on the time
frame from November 2011 to February 2012. Each of
the Claimant and the Respondents have advanced
detailed evidence and submissions on each of these
particulars as addressed above. Nevertheless the
breaches cannot be treated in complete isolation. In
many instance the breaches can be seen as forming
part of a pattern of alleged conduct involving the same
witnesses and questions of their credibility as regards
the rival evidence and rival "case theories." This does
not mean to say that the allegations all stand or fall
together but a finding in relation to the credibility of the
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story advanced by one side or other in relation to one
allegation does impact on the credibility of other parts
of the story.
105. Therefore before turning to the individual
allegations it is necessary to say something about the
chief witnesses on each side and their credibility and
demeanour, having reviewed and considered carefully
once more the evidence advanced.
106. The Tribunal has no hesitation in reaching the
conclusion that the chief witnesses called by the
Claimant were truthful, honest and whilst faced with a
difficult and tense situation in India continued to try to
resolve matters in accordance with the provisions of
the JVA.”
VIII. The Tribunal’s selective consideration of contemporaneous
evidence
100.Dr. Singhvi then argued that the tribunal’s analysis of
contemporaneous conduct is selective and perverse. Without going
into any further details in this ground, this argument must be rejected
out of hand, as not falling within the parameters of Section 48. Equally,
the tribunal’s consideration of evidence of key witnesses being
selective and perverse, must be rejected on the same ground.
IX. The Tribunal appointed a conflicted valuer
101. Dr. Singhvi then contended that the tribunal appointed a conflicted
valuer, which prevented the Appellants from participating in the
valuation exercise. This has been dealt with in the Final Award dated
11.04.2017 by the learned arbitrator as follows:
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“II. Deloitte Valuation Report and the Respondents'
Challenge to Deloitte
4. It is important at this stage to record one specific
matter here which is referred to and set out in the
Claimant's submissions (see paragraph 24 and
Annexure E thereto at pages 170-172) and not
contradicted by the Respondents in its submissions.
On 14 October 2014 (Annexure E p. 171), Mr Karia on
behalf of the Respondents sent an email to the
Claimant in response to the Claimant's request dated
14 October 2014 (Annexure E p.170) that the
Respondents do cause the Company in a timely
fashion to execute the Engagement letter for Deloitte.
On 14 October 2014 (Annexure E p.171), Mr Karia for
the Respondents objected to the engagement of
Deloitte contending that they were conflicted out of
acting as Valuer. This was a remarkable stance to
take. On 30 April 2013 the Respondents, via an email
sent by their solicitors, had confirmed that the
Respondents were agreeable to Deloitte or KPMG
acting as independent Valuers under the JVA. The
Tribunal noted and recorded this in the Preamble to
Procedural Order No 12, albeit referring to the date as
30 April 2014. There had been no material change in
circumstance since April 2013 or Procedural Order No
12, to justify this change of position. The Tribunal
concludes that the Respondents took this position in
an attempt to hinder, delay and frustrate the valuation
exercise and consequent transfer of shares. The
Respondents advanced a series of points in their
email. Each was answered in the Claimant's solicitors'
email dated 15 October 2014 (see Annexure E p.170
to the Claimant's submissions). In summary, the
Respondent was not in a position following Procedural
Order No 12 and its prior agreement to Deloitte
subsequently to withhold its agreement to or not to
object to the appointment of Deloitte. It had been
ordered following the Respondents’ indication of
agreement or non-objection to Deloitte.
5. The Respondents had not previously sought to
identify any matters which disentitled Deloitte from
acting but instead had agreed to their name being put
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forward to the Tribunal for appointment. Furthermore,
the matters identified did not in any event impugn
Deloitte's independence or ability to act as Valuer in
accordance with the provisions of the JVA. The fact
that Deloitte had been approached by the
Respondents to conduct an independent valuation but
had declined to act because of the impending role for
the Company as Valuer only serves to underline not
undermine their independence. Also, the fact that the
Respondents had asked Deloitte earlier in the
arbitration to undertake some computer forensic
exercise was not relied upon by the Respondents nor
did it impugn their independence. Finally, the
Respondents refer to Deloitte having acted as auditor
of Power Plus Cable Company LLC ("Power Plus") a
company incorporated in the UAE and based in Dubai
in which Ravin holds a 49% shareholding, This is not
the same entity as the Company, and did not impugn
Deloitte's independence and did not prohibit them
under the terms of Clause 17.3 of the JVA from being
appointed. Clause 17.3 only applied to a prohibition on
the statutory auditor of the Parties to the JVA acting as
Valuer. It is not suggested that Deloitte was the
statutory auditor of Ravin. Power Plus was not a Party
to the JVA. Further, Clause 17.1 of the JVA expressly
identified Deloitte as a suitable independent party to
be appointed as Valuer. In any event, Deloitte's role as
auditor of Power Plus was known to the Respondents
and having agreed not to object to Deloitte in their 30
April 2013 email it was no longer open to the
Respondents to advance this point. There was no
breach of the JVA but even if there had been it was
waived by the Respondents.
6. Thus following this exchange, Deloitte were in due
course engaged albeit through the default
mechanisms provided for in Procedural Order No 12.”
We are satisfied that the learned arbitrator has considered this point in
some detail and dismissed it. This objection again does not fall under
any of the grounds mentioned in Section 48.
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X. Valuation ignores Ravin’s stake in Power Plus
102.Dr. Singhvi then argued that the valuation made by Deloitte
ignored a stake of 49% of Ravin in a company called Power Plus,
which stake has been valued by the Appellants’ valuer (one BDO) at
INR 563 crores. Considering that this aspect was not taken into
account by Deloitte, the valuation report ought not to have been
accepted by the learned arbitrator, also being contrary to the position
taken by both parties. This submission was dealt with by the learned
arbitrator in great detail in paragraph 19 of the Final Award dated
11.04.2017. Among other things, the learned arbitrator referred to
clause 17 of the JVA and stated that the said clause together with the
formula prescribed therein was followed by Deloitte. Since this was
done, Deloitte cannot possibly be faulted and cannot further be asked
to take into account the stake of Ravin in Power Plus, as that would go
outside the JVA. This again is a matter for the arbitrator to determine.
This again is a ground wholly outside grounds that can attract
challenge to foreign awards under Section 48.
XI. Valuation Date
103.Dr. Singhvi then argued that the tribunal acted contrary to the
parties’ submissions in arriving at a valuation date of 30.09.2014,
much later on the date of the Final Award which is 11.04.2017, as the
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parties had agreed that this date ought to be the date closest to the
date of actual sale of share and would be valid only until 31.12.2014.
The learned arbitrator dealt with this objection in the Final Award dated
11.04.2017 as follows:
“D. Valuation date
24. The Respondents also complain that whilst
Procedural Order No 12 provided for a valuation date
of 30 September 2014, Deloitte instead used data as
at 31 July 2014. Respondents also complained that
since the Report was only issued in November 2015,
the valuation was out of date.
25. The Tribunal is unable to accept the validity of this
criticism for the following reasons:
1) Deloitte records that it did request data from the
Company up to 30 September 2014, but this data was
not provided to Deloite. The Tribunal has earlier in this
Award recited the facts from which the Tribunal has
reached the conclusion that the Company's lack of
cooperation with Deloitte was effectively controlled and
directed by the Respondent. This was most notably
the case with regard to the Company's failure to issue
the Engagement Letter to Deloitte following Procedural
Order No 12. The Tribunal therefore concludes that it
is not open to the Respondents to complain of the lack
of further data being proved to Deloitte. It was the
Respondents who were in control of the provision or
non-provision of that data.
2) The Tribunal also concludes that the Respondents
are not entitled to complain of the delay in the
production of the Deloitte Valuation Report since that
delay was materially contributed to by reason of the
Respondents' complaint with regard to Deloitte's
involvement which is made to the LCIA. It is notable
that the Respondents have not in their submission
denied that they made such a complaint to the LCIA
and have not contradicted the Claimant's submission
139
that this complaint materially contributed to the delay
in the production of the Deloitte Report.
3) Furthermore, the Respondents are not entitled to
complain that Deloitte has used a valuation date of 30
September 2014. This was the valuation date agreed
to and requested by the Respondents. Furthermore,
as is recorded in the Recital to Procedural Order No
12 prior to the hearing in October 2014 leading to the
making of the order of the valuation date, the
Respondents expressly accepted that the question of
the Valuation date was a matter properly within the
jurisdiction of and for the determination of the Tribunal.
The Tribunal then made an order for the valuation as
requested by the Respondents.”
Having found that the delay in the valuation report was attributable
largely to the Appellants and that therefore the agreed date of
30.09.2014 is the correct date, we find nothing in the award which can
be said to even remotely shock our conscience. This ground is also
therefore rejected. Dr. Singhvi’s fervent plea to exercise our power
under Article 142 of the Constitution of India, so as to shift the
valuation date from 30.09.2014 to the date of our judgment must also
be rejected given the learned arbitrator’s finding. Quite apart from this,
nothing in Section 48 of the Arbitration Act would permit an enforcing
court to add to or subtract from a foreign award that must either be
enforced or rejected by reason of any of the grounds under Section 48
being made out to resist enforcement of such foreign award. This
Court’s power under Article 142 ought not to be used to circumvent the
legislative policy contained in Section 48 of the Arbitration Act.
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XII. Inconsistent Awards
104.Dr. Singhvi then argued that the tribunal’s ruling in the First and
Second Partial Final Award, with regard to the interpretation of clause
21, is inconsistent and irreconcilable. Apart from the fact that we do
not find anything in the said two awards with regard to clause 21 being
inconsistent and irreconcilable, this ground again does not, in any
manner, shock our conscience and is therefore rejected.
XIII. Violation of FEMA and the Rules thereunder
105.Dr. Singhvi then argued that in ordering the sale of shares at a
10% discount of the fair market value arrived at by Deloitte, FEMA and
the Rules made thereunder would be breached, resulting in the award
being contrary to the public policy of India, in that it would be against
the fundamental policy of the Indian law. As pointed out hereinabove,
for the reasons given in paragraphs 79 to 84 of this judgment, this
ground again is bereft of any merit. In fact, the learned arbitrator
awarded INR 63.90 per share as per the Deloitte valuation, which was
contractually binding under clause 17 of the JVA. Therefore, the lower
valuation of INR 16.88 per share as in the M/s Kalyaniwalla & Mistry
valuation report dated 04.03.2016 was not accepted.
XIV. Bias of the Tribunal
141
106.Lastly, Dr. Singhvi argued that the learned arbitrator was clearly
biased in that the outcome of the Second Partial Final Award was clear
to the Respondent No.1, inasmuch as its agent, one M/s Gilbert Tweed
Associates, sent out an advertisement for recruiting employees for
Ravin, two months before the Second Partial Final Award, thereby
showing that this agent was clear as to the outcome of the
proceedings. This was strongly refuted by the Respondent, stating that
at no time had Gilbert Tweed Associates been retained by them. As a
matter of fact, an agency called M/s Key2People was engaged by
Respondent No.1 to identify potential candidates who could be
recruited for the company in due course. M/s Key2People, in turn,
appointed M/s Gilbert Tweed Associates. In any case, the Respondent
undertook to terminate the engagement of M/s Key2People by its
email of 28.10.2013. The allegation of bias thus made was clearly a
desperate afterthought. The contention that the arbitrator was
otherwise biased was dealt with in the Final Award as follows:
“16. The Respondents have also made a repeated
reference to an allegation that the Tribunal lacked
independence and that the Respondents have lost
faith in the Tribunal continuing to give an impartial
determination of the matters which remain in dispute.
17. These allegations have already been raised by the
Respondents and rejected by the LCIA Court.
Furthermore, the Respondents have not sought to
invoke any procedure in the English Court, which is
the court of the seat with supervisory jurisdiction. If the
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Respondents wished to challenge the ruling of the
LCIA Court and challenge the further involvement of
the Tribunal in the process, the Respondents had to
bring a challenge within the strict time limits provided
for in the English Arbitration Act 1996, but they have
not done so. It is regretted that the Respondents
continued to advance this unfounded and
unparticularised allegation. The Tribunal has in the
past pointed out the distinction between independence
and impartiality on the one hand and on the other the
role of an arbitrator who has to decide between rival
arguments, diametrically opposed and irreconcilable
positions adopted before it and direct clash of
evidence before it and then apply such findings to the
disputes before it. It is an inherent and an inevitable
part of the arbitral process that where parties, as
indeed has been the case in this arbitration, have
taken radically opposing positions on the evidence and
the law that multiple decisions will have to be made
that will ultimately disappoint one of the parties. This
has been exactly such a dispute. It has, however, been
a distinct feature of this process that the Respondents
have not only voiced their disappointment but have not
complied with the orders of the Tribunal to protect the
Parties' rights during the course of the Arbitration and
not complied with the terms of the JVA as has been
found and determined by the Tribunal in its prior
Awards. In a dispute such as the present where it has
been necessary to render a series of Awards, it is
necessary for the Tribunal to apply the prior findings in
any subsequent Award.”
107.Having answered each of the submissions of Dr. Singhvi on behalf of
the Appellants, we cannot help but be left with a feeling that the
Appellants are indulging in a speculative litigation with the fond hope
that by flinging mud on a foreign arbitral award, some of the mud so
flung would stick. We have no doubt whatsoever that all the pleas
143
taken by the Appellants are, in reality, pleas going to the unfairness of
the conclusions reached by the award, which is plainly a foray into the
merits of the matter, and which is plainly proscribed by Section 48 of
the Arbitration Act read with the New York Convention. We have read,
in detail, the four awards passed by the learned sole arbitrator and are
satisfied that he has exhaustively discussed the evidence and arrived
at detailed findings for each of the issues, claims and counter-claims,
and finally accepted the Respondent’s case and rejected the
Appellants’. Given the fact that our jurisdiction under Article 136 of the
Constitution is itself limited, and given the fact that this Court’s time
has unnecessarily been taken by a case which has already been dealt
with by four exhaustive awards on merits and also by the impugned
judgment of the Bombay High Court, we dismiss these appeals with
costs of INR 50 lakhs, to be paid by the Appellant to Respondent No.1
within 4 weeks from today.
.……………………………J.
(R.F. Nariman)
.……………………………J.
(Aniruddha Bose)
……………………………J.
(V. Ramasubramanian)
New Delhi;
13 February, 2020.
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