Hindustan Zinc Limited vs Glencore International A.G. Giag And ... on 2 May, 2019

[Cites 17, Cited by 0]

Rajasthan High Court - Jodhpur

Hindustan Zinc Limited vs Glencore International A.G. Giag And ... on 2 May, 2019

Equivalent citations: AIRONLINE 2019 RAJ 525, (2019) 3 RAJ LW 2155

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Arbitration Application No. 6/2018

Hindustan Zinc Limited having its Registered Office at Yashad
Bhawan, Swaroop Sagar, Udaipur through - Shree Vineet Bose
son of Shri S.C. Bose, Aged About 38 Years, Associate General
Manager Legal, Hindustan Zinc Limited, Udaipur. Claimant
Before The Learned Arbitral Tribunal
----Applicant
Versus
1. Glencore International A.G. Giag, Baarermattstrasse 3,
Po Box 777, Ch-6341 Baar, Switzerland Respondent
Before The Learned Arbitral Tribunal
2. London Court of International Arbitration, 70 Fleet St,
London Ec4Y 1Eu, UK.
----Respondents
Connected With
S.B. Arbitration Application No. 28/2017
Hindustan Zinc Limited having its Registered Office at Yashad
Bhawan, Swaroop Sagar, Udaipur through, Associate General
Manager Legal, Hindustan Zinc Limited, Udaipur
----Applicant
Versus
1. Glencore International A.G. Giag, Baarermatt Strasse 3,
Po Box 777, Ch-6341 Baar, Switzerland.
2. London Court of International Arbitration, 70 Fleet St,
London Ec4Y 1Eu, UK.
----Respondents

For Applicant(s) : Mr. R.N. Mathur, Sr. Advocate
assisted by Mr. Manvendra Singh.
For Respondent(s) : Mr. Sumeet Lall.
Mr. RDSS Kharlia.
Mr. Sidhant Kapoor.

HON'BLE MR. JUSTICE ARUN BHANSALI

Reportable Order

02/05/2019

These applications under Section 34 read with Section 48 of

the Arbitration and Conciliation Act, 1996 ('the Act') have been

filed by the applicant - Hindustan Zinc Ltd. ('HZL') seeking setting

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aside of Arbitral Awards dated 17.08.2017 passed by the Arbitral

Tribunal appointed by London Court of International Arbitration

('LCIA'), whereby the claims raised by HZL have been rejected.

While Arbitration Application No. 28 of 2017 pertains to

seller's contract No.190-11-18206-S dated 13.12.2011,

Application 6 of 2018 pertains to seller's contract No. 190-12-

12120-S dated 28.03.2012.

It may also be noticed that arbitration application No. 6 of

2018 is barred by limitation and an application under Section

34(3) of the Act seeking condonation of delay has been filed. In

arbitration application No.28 of 2017, notices were ordered to be

issued on 06.11.2017, whereafter appearance was made on

behalf of the respondent in both the applications.

An application has been filed by the respondent in

application No. 28 of 2017 questioning the maintainability of the

application and reserving right to contest the application filed by

the applicant under Section 34(3) of the Act in application No. 6

of 2018, it has been submitted that the application under Section

34 of the Act per se is not maintainable.

It is submitted that in the present matters, the seat of

arbitration was London, United Kingdom and the arbitration was

governed by the Rules of London Court of International

Arbitration ('the Rules of LCIA') and as the seat of arbitration is in

London, any challenge as to the validity of the award is to be

made only in the courts at the seat and, therefore, for lack of

jurisdiction, the applications deserve to be dismissed on the said

count alone.

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Though, no reply to the application questioning the

maintainability of the applications under Section 34 of the Act

has been filed, submissions have been made vehemently

opposing the application and claiming that the applications are

maintainable.

It is submitted by learned counsel for the respondent with

reference to the governing law/arbitration clause as contained in

the agreements between the parties that the same in no

uncertain terms provides for the contract and the arbitration

clause to be governed by law of England and Wales and all the

disputes to be finally settled by arbitration venue in London,

United Kingdom and in accordance with the Rules of LCIA. It is

submitted that under Section 2(2) Part-I of the Act applies only

where the place of arbitration is in India and as admittedly in the

present case arbitration has been held in London as per the Rules

of LCIA, and the seat being at London, the applications under

Section 34 of the Act are not maintainable.

Submissions have been made that the arbitration clause

was invoked by the HZL and in its request for arbitration made to

the Registrar of the LCIA, specific submissions were made by HZL

indicating the seat of arbitration being London and once a specific

plea in writing has been taken, the applicant cannot contend

otherwise.

With reference to Larger Bench judgment of Union of India

v. Hardy Exploration and Production (India) INC : AIR 2018 SC

4871; Roger Shashoua and Ors. v. Mukesh Sharma. & Ors.:

2017 (14) SCC 722; Bharat Aluminium Company v. Kaiser

Aluminium Technical Services Inc., (2012) 9 SCC 552 (Balco-I);

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Bharat Aluminium Company v. Kaiser Aluminium Technical

Services Inc., (2016) 4 SCC 126 (Balco-II) and Union of India v.

Reliance Industries Ltd. & Ors.: (2015) 10 SCC 213, it was

submitted that the plea sought to be raised by the respondent to

claim that London was only the venue and not the seat, is

baseless.

Submissions were made that the plea sought to be raised

by the applicant with reference to Section 81 of the English

Arbitration Act, 1996 ('English Arbitration Act') is also baseless,

inasmuch as, it cannot be said that the applicant could not have

challenged the said award under English Arbitration Act.

Reference was made to Section 68 of the English Arbitration Act.

Further submissions have been made that Section 81 of the

English Arbitration Act cannot make, an otherwise non-

maintainable application, maintainable before this Court.

Submissions were also made countering the allegations of

fraud etc. sought to be leveled by the applicant for the purpose of

bringing its case within the plea of public policy. It was prayed

that the applications be dismissed as not maintainable.

Learned counsel for the applicant contested the submissions

made by learned counsel for the respondent and submitted that

the present applications under Section 34 of the Act are

maintainable.

With reference to the arbitration clause, it was submitted

that the clause specifically provides for 'venue' at London only

and there is no reference of London being the seat, therefore, in

terms of Larger Bench judgment in the case of Hardy Exploration

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(supra), the applications are very well maintainable before this

Court.

Submissions have been made that clause 20 of the

agreements deals with severability and provide that in the event

any of the provisions become unenforceable under applicable law,

such provision shall be modified or limited in its effect to the

extent necessary to cause it to be enforceable and as the award

in question cannot be challenged under English Arbitration Act on

the ground of the award being against public policy, the

applications before this Court are maintainable.

It was submitted that Section 81 of the English Arbitration

Act provides for saving for certain matters governed by common

law, wherein under clause (c) of sub-Section (1), it is specifically

provided that any rule of law as to the refusal of recognition or

enforcement of an arbitration award on the ground of public

policy shall not be construed as excluding the operation of any

rule of law and, therefore, as the award in question cannot be

questioned under the English Arbitration Act, the applicant

cannot be left remediless and once the award cannot be

challenged under English Law, the same would not bar the

jurisdiction of this Court.

Submissions were also made that as the agreements in

question were prior to the cut-off date as indicted in Balco-I

(supra), the principles laid down therein have no application.

Submissions were also made that the plea raised by the

respondent that under Section 68 of the English Arbitration Act,

the issue pertaining to public policy, could be raised by the

applicant is also without any basis. With reference to the finding

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in the award, it was submitted that fraud on part of the

respondent writ large, cognizance against the respondent has

already been taken by the criminal courts in India regarding the

fraud committed and, therefore, the plea raised regarding the

non-maintainability, has no substance.

Reliance was placed on Hardy Exploration (supra); Reliance

Industries Ltd. (supra); Balco-II (supra) and Venture Global

Engineering LLC v. Tech Mahindra Ltd. & Anr.: (2018) 1 SCC 656.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

At the outset, it would be appropriate to quote the relevant

clauses of the agreements, which have been relied on by the

parties:-

"20. Severability:
In the event of any of these provisions are or
become unenforceable under applicable law, such
provision shall be modified or limited in its effect to
the extent necessary to cause it to be enforceable.
Otherwise such provision shall be severed and the
remaining provisions of this contract shall continue in
full force.
.........................

.........................

27. Governing Law/Arbitration:

27.1 Governing Law:

This contract, including the arbitration clause, shall be governed by, interpreted and construed in accordance with the law of England and Wales excluding the United Nations Convention on Contracts for the International Sales of Goods of April 11, 1980 (CISG).

27.2 Arbitration:

All disputes arising out of or in connection with this Agreement (including the question regarding its existence validity or termination) shall be referred to and finally settled by arbitration venue in London, United Kingdom and in accordance with the Rules of the London Court of International Arbitration in effect on the date of invocation of this clause and which Rules are deemed to be incorporated by reference into this clause.

The Arbitration shall be conducted in English Language by Arbitral Tribunal consisting of three arbitrators, one to be appointed by each party and (Downloaded on 28/06/2019 at 01:16:24 AM) (7 of 17) third to be appointed by President of London Court of International Arbitration. Any decision or award shall be final and binding on both the Buyer and the Seller."

The applicant-HZL approached the Registrar of the LCIA with request for arbitration. Clause 4 of the application relevant for the present purpose reads as under:-

"4. The Matters of the Arbitration 4.1 In accordance with the Arbitration Agreement, the parties have agreed that:

(a) the seat of the arbitration is London;

(b) the language of the arbitration is English;

(c) each Tribunal shall be constituted by three arbitrators, one to be appointed by each party and the third to be appointed by the President of the London Court of International Arbitration;

(d) the procedural law of the arbitration is English law; and

(e) the substantive law of the arbitration is English law."

(emphasis supplied) Whereafter the parties contested the matter before the Arbitral Tribunal, which resulted in passing of the impugned awards dated 17.08.2017.

This Court in R.K. Industries v. Maximus International General Trading LLC & Anr.: S.B. Arbitration Application No.25/2017, decided on 16.03.2018 while examining the scope of provisions of the Act in relation to International Commercial Arbitration inter alia laid down as under:-

"A perusal of the Act reveals that scope of Part-I of the Act, which includes Section 34 also, has been confined by Section 2(2) of the Act to cases where the place of arbitration is in India. Though now by Arbitration and Conciliation (Amendment) Act, 2015, provisions of Sections 9, 27, 37(1)(a) and 37(3) have been made applicable to international commer- cial arbitration, which also have been made subject to an agreement to the contrary.

The foreign awards have been dealt with in Part-II of the Act. Sections 44 to section 49 give a complete procedure as to the enforcement of the for- eign award in India. To facilitate contest, if any, to the person against whom the award is made, section (Downloaded on 28/06/2019 at 01:16:24 AM) (8 of 17) 48 prescribes the conditions for enforcement of for- eign awards and at the same time grant liberty to the person against whom the award has been pub- lished to contest the enforcement of the said award by pointing out that the conditions embodied in sec- tion 48 have not been fulfilled. Sub-section 3 of sec- tion 48 also entitles the person against whom the award is made to seek adjournment of decision on the ground that the setting aside application or appli- cation for suspension of award has been made to a competent authority. The 'competent authority' has been qualified in Section 48(1)(e) of the Act by the words "of the country in which, or under the law of which, that award was made".

However, section 49 prescribes that if the con- ditions of section 48 are fulfilled the award shall be deemed to be a decree of the Indian Courts.

A close reading of the above Sections reveal that they don't contemplate a situation where a for- eign award could be challenged by way of application under Section 34 of the Act in Indian Courts. Rather a right is given to the award holder to enforce the award coupled with only a right to the losing party to resist/contest such action on the grounds that would be available to him. The losing party does not have any right at all to challenge the award in India. The reason is not far to seek. The basic concept of law suggests that the forum available to a party would be the place where incident occurs giving rise to a right to approach the forum. When arbitration is held at a particular place, the aggrieved party has to approach the Court/Forum under the governing law, where the arbitration was held and/or award was published un- less the parties mutually agreed to be guided by an- other law."

Hon'ble Supreme Court in the case of Hardy Exploration (supra) while dealing with the issue of venue/seat, inter alia, laid down as under:-

"23. In view of the aforesaid development of law, there is no confusion with regard to what the seat of arbitration and venue of arbitration mean. There is no shadow of doubt that the arbitration clause has to be read in a holistic manner so as to determine the jurisdiction of the Court. That apart, if there is mention of venue and something else is appended thereto, depending on the nature of the prescription, the Court can come to a conclusion that there is implied exclusion of Part I of the Act. The principle laid down in Sumitomo Heavy Industries Ltd. (supra) has been referred to in Reliance Industries Limited (II) and distinguished. In any case, it has no applicability to a controversy under the Act. The said controversy has to be governed by the BALCO principle or by the agreement or by the principle of (Downloaded on 28/06/2019 at 01:16:24 AM) (9 of 17) implied exclusion as has been held in Bhatia International.

24. Thus, we answer the reference accordingly."

It was further laid down, in the context of the case before it, as under:-

"33. The word 'determination' has to be contextually determined. When a 'place' is agreed upon, it gets the status of seat which means the juridical seat. We have already noted that the terms 'place' and 'seat' are used interchangeably. When only the term 'place' is stated or mentioned and no other condition is postulated, it is equivalent to 'seat' and that finalises the facet of jurisdiction. But if a condition precedent is attached to the term 'place', the said condition has to be satisfied so that the place can become equivalent to seat. In the instant case, as there are two distinct and disjunct riders, either of them have to be satisfied to become a place. As is evident, there is no agreement. As far as determination is concerned, there has been no determination. In Ashok Leyland Limited and State of T.N. and another, the Court has reproduced the definition of 'determination' from Law Lexicon, 2nd Edition by Aiyar, P. Ramanatha and Black's Law Dictionary, 6th Edition. The relevant paragraphs read thus:-

"Determination or order.--The expression 'determination' signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression 'order' must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills Ltd. v. Lakshmi Chand (Constitution of India, Article 136)."

"A 'determination' is a 'final judgment' for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken."

The said test clearly means that the expression of determination signifies an expressive opinion. In the instant case, there has been no adjudication and expression of an opinion. Thus, the word 'place' cannot be used as seat. To elaborate, a venue can become a seat if something else is added to it as a concomitant. But a place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions precedent is satisfied. It does not ipso facto assume the status of seat. Thus understood, Kuala Lumpur is not the seat or place of arbitration and the interchangeable use will not apply in stricto sensu."

(emphasis supplied) (Downloaded on 28/06/2019 at 01:16:24 AM) (10 of 17) The principle laid down, which is relevant to the present case is that if there is mention of venue and something else is appended thereto, depending on the nature of the prescription, the Court can come to a conclusion that there is implied exclusion of Part-I of the Act and that a venue can become a seat, if something else is added to it as a concomitant.

As to what would be a concomitant has been dealt with in the case of Roger Shashoua (supra), wherein after elaborately referring to the judgment in Enercon (India) Ltd. v. Enercon GmbH : (2014) 5 SCC 1, wherein referring to the judgment in the case of Roger Shashoua by the High Court of Justice, Queen's Bench Division Commercial Court, Royal Courts of Justice, London, it was laid down as under:-

"72. It is worthy to note that the arbitration agreement is not silent as to what law and procedure is to be followed. On the contrary, Clause 14.1 lays down that the arbitration proceedings shall be in accordance with the Rules of Conciliation and Arbitration of the ICC. In Enercon (India) Ltd., the two-Judge Bench referring to Shashoua case accepted the view of Cooke, J. that the phrase "venue of arbitration shall be in London, UK" was accompanied by the provision in the arbitration clause or arbitration to be conducted in accordance with the Rules of ICC in Paris. The two-Judge Bench accepted the Rules of ICC, Paris which is supernational body of Rules as has been noted by Cooke, J. and that is how it has accepted that the parties have not simply provided for the location of hearings to be in London. To elaborate, the distinction between the venue and the seat remains. But when a Court finds that there is prescription for venue and something else, it has to be adjudged on the facts of each case to determine the juridical seat. As in the instant case, the agreement in question has been interpreted and it has been held that London is not mentioned as the mere location but the courts in London will have the jurisdiction, another interpretative perception as projected by the learned senior counsel is unacceptable."

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(11 of 17) Coming to the case in hand based on the principles laid down above, a perusal of the clause 27, which deals with the governing law and arbitration provides that all disputes shall be referred to and finally settled by arbitration venue in London, United Kingdom. The clause pertaining to arbitration indicates London, United Kingdom as venue, however, as laid down by Hon'ble Supreme Court, the indication of place/venue in the agreement depending on the circumstances would become seat. The governing law indicated in the clause is that the contract including the arbitration clause shall be governed, interpreted and construed in accordance with law of England and Wales and that the dispute would be settled in accordance with the Rules of LCIA, which Rules have been incorporated by reference into the clause.

The very fact that though indicating London as venue, the further provision in the clause that the contract and the arbitration clause shall be governed by law of England and Wales and the arbitration shall be conducted in accordance with the Rules of LCIA, and the fact that in the application made by the HZL to the Registrar of the LCIA with request for Arbitration, it was specifically indicated that seat of arbitration is London and procedural law as well as substantive law of arbitration is the English Law, in view of the law laid down by Hon'ble Supreme Court as considered (supra), clearly makes London the seat of arbitration and once the seat of arbitration is London, in terms of Section 2(2) of the Act, the applicability of Part-I of the Act including Section 34 of the Act, stands excluded. (Downloaded on 28/06/2019 at 01:16:24 AM)

(12 of 17) So far as the plea regarding non-applicability of the interpretation laid down by Hon'ble Supreme Court based on the cut-off as prescribed in the case of Balco-I (supra) is concerned, the issue has been dealt with in the case of Reliance Industries Ltd. (supra), wherein Hon'ble Supreme Court reiterating the principles laid down by it in Reliance Industries Ltd. v. Union of India : (2014) 7 SCC 603 [RIL (2014)] and noticing that in the said case, the arbitration agreements were entered into before 12.09.2012 i.e. the date of pronouncement of judgment in Balco-I (supra), laid down as under:-

"20. The last paragraph of Bharat Aluminium's judg- ment has now to be read with two caveats, both em- anating from paragraph 32 of Bhatia International it- self-that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agree- ment, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would con- tinue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitra- tion agreement is Indian law which would continue to be governed by the Bhatia rule."

Further in para-14 of Balco-II (supra) again the principles laid down in the case of Reliance Industries Ltd. (supra) were reiterated.

In view of the above, the plea sought to be raised based on the date of agreement and the cut-off as indicated in Balco-I (supra), has no substance.

The reliance placed by the applicant on the judgment of Hon'ble Supreme Court in the case of Venture Global Engineering (supra), on account of the fact that in the said judgment on (Downloaded on 28/06/2019 at 01:16:24 AM) (13 of 17) account of difference of opinion among the members of the Bench, the matter was directed to be placed before Hon'ble the Chief Justice for further appropriate action, the reliance placed on the conflicting opinion in the said judgment is misplaced.

Once it is held that the seat of arbitration in the present case is London and, therefore, the applications under Section 34 would not be maintainable, the issue raised pertaining to severability and the award being not appealable under the English Arbitration Act and as to whether the said aspect can make, the applications maintainable, requires consideration.

At the outset, it may be noticed that insofar as applicability of Part-I and Section 34 of the Act is concerned, provisions of Section 2(2) of the Act does not provide for any exception based on the nature of award. In a case where the place of arbitration is not in India and the award as delivered even if is not open to challenge at the concerned place, it cannot be said that in such an eventuality, the award would be open to challenge under Section 34 of the Act.

So far as reliance placed on the provision relating to severability in the agreements is concerned, suffice it to notice that the said stipulation in the contract (quoted above) only deals with the various provisions of the contract and cannot be employed for the purpose of enforcing provision in a different law i.e. Indian Arbitration Act on the ground that in the English Law of Arbitration, the award purportedly could not be challenged on the grounds alleged and as such the plea based on the clause relating to severability is baseless.

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(14 of 17) The provisions relevant for the purpose of examining the plea raised by the applicant seeking to maintain the present applications under Section 34 of the Act based on provisions of the English Arbitration Act, reads as under:-

"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--

(a) ............................

(b) ............................

(d) ............................

(e) ............................

(f) ............................

(g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy;

(h) ............................

(i) ............................

(3) ............................

(4) ............................

.................................. .................................. ..................................

81. Saving for certain matters governed by common law.

(1) Nothing in this Part shall be construed as excluding the operation of any rule of law consistent with the provisions of this Part, in particular, any rule of law as to--

(a) matters which are not capable of settlement by arbitration;

(b) the effect of an oral arbitration agreement; or

(c) the refusal of recognition or enforcement of an arbitral award on grounds of public policy. (2) Nothing in this Act shall be construed as reviving any jurisdiction of the court to set aside or remit an award on the ground of errors of fact or law on the face of the award.

.................................. .................................. ..................................

103. Refusal of recognition or enforcement. (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases.

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(15 of 17) (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves-

(a) ............................

(b) ............................

(d) ............................

(e) ............................

(f) ............................

(3) Recognition or enforcement of the award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to recognise or enforce the award.

(4) ............................

(5) ............................"

It is submitted by the learned counsel for the applicant that provisions of Section 81(1)(c) of the English Arbitration Act provide that operation of any rule of law as to the refusal of recognition or enforcement of an arbitral award on the grounds of public policy is not excluded and under Section 68(2)(g) of the English Arbitration Act an award is only open to challenge on the ground of (i) the same being obtained by fraud or (ii) procured contrary to public policy.

Based on the above provisions it is contended that on the plea raised by the applicant qua the awards, though appeal under Section 68 would not be maintainable, the fact that operation of rule of law, under Section 81 of the English Arbitration Act is not excluded, the applications under Section 34 of the Act, which provides for challenge to an award, if the arbitral award is in conflict with the public policy of India, would be maintainable.

The submission as made though sounds attractive, on consideration, the same has no substance.

A bare reading of provisions of Section 81 of the English Arbitration Act would reveal that certain matters governed by common law have been saved by providing that the provisions of Part-I of the English Arbitration Act shall not be construed as (Downloaded on 28/06/2019 at 01:16:24 AM) (16 of 17) excluding the operation of any rule of law pertaining to the matters indicated in clause (a), (b) and (c) of sub-Section (1), which inter alia includes 'rule of law as to the refusal of recognition or enforcement of an award on ground of public policy'.

The provisions in the English Arbitration Act pertaining to 'refusal of recognition or enforcement' of an arbitral award have been indicated in Section 103 of English Arbitration Act, which is contained in Part-III of the Act dealing with recognition and enforcement of certain foreign awards. The provision of Section 103(3) (quoted supra) specifically provides for refusal of an award, if it would be contrary to public policy to recognize or enforce the award and in those circumstances, the saving provision has been incorporated under Section 81 of the English Arbitration Act. The issue of recognition of an arbitral award, arises only in case of a foreign award, which is governed by Section 103 of the English Arbitration Act as Section 47 and 48 of the Indian Act. Therefore to read the provision of Section 81 so as to claim that the same would make an otherwise not maintainable application under Section 34 of the Act before this Court against the award, maintainable, has no substance.

The plea regarding alleged non-maintainability of the appeal under Section 68 of the English Arbitration Act on the ground of the award being in conflict with public policy also is apparently baseless, inasmuch as, a plain reading of provisions of Section 68(2)(g) of the English Arbitration Act reveals that ground of serious irregularity, inter alia, effecting the award has been inter alia indicated to mean (i) the award being obtained by (Downloaded on 28/06/2019 at 01:16:24 AM) (17 of 17) fraud; (ii) the award being contrary to public policy and (iii) the way, in which the award was procured being contrary to public policy.

The submission made seeking to confine the appeal only on grounds (i) and (iii) above by ignoring (ii), cannot be countenanced and, therefore, as already observed hereinbefore, the plea raised has no basis.

In view of the above, it is apparent that the seat of arbitration being at London, United Kingdom, the applications under Section 34 of the Act would not be maintainable. The submissions made by learned counsel for the applicant, cannot be accepted and the preliminary objections raised by the respondents deserve acceptance.

In view of the above discussion, the applications filed by the applicant under Section 34 of the Act against the impugned Arbitral Awards dated 17.08.2017 are not maintainable, the same are therefore, dismissed.

No order as to costs.

(ARUN BHANSALI),J PKS/-

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