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SURINDER SINGH NIJJAR, J.

1. Leave granted.

2. This appeal is directed against the judgment of the High Court of Delhi at New Delhi rendered in OMP No.46 of 2013 dated 22nd March, 2013. By the aforesaid judgment, the Delhi High Court has allowed the petition filed by the respondent under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Arbitration Act, 1996’), challenging the Final Partial Award dated 12th September, 2012. By the aforesaid Award, the objection raised by the Union of India relating to the arbitrability of the claims made by the petitioner in respect of Royalties, Cess, Service Tax and CAG Audit have been rejected.

24.The appellant raised preliminary objection to the maintainability of the arbitration petition primarily on the ground that by choosing English Law to govern their agreement to arbitration and expressly agreeing to London seated arbitration, the parties have excluded the application of Part I of the Arbitration Act, 1996. It was submitted that the High Court of Delhi had no jurisdiction to entertain the objection filed by the Union of India under Section 34 of the Arbitration Act, 1996. It was emphasized that Courts of England and Wales have exclusive jurisdiction to entertain any challenge to the award. It was pointed out that the PSCs were amended on two occasions. On 24th February, 2004, PSC was sought to be amended to change the seat of arbitration from London to Paris. However, on 14th September, 2011, the parties to the arbitration agreed that the seat of the present arbitration proceedings would be London, England. This agreement is recorded in the Final Partial Consent Award rendered by the arbitral tribunal on 29th July, 2011. As noticed earlier, the final partial consent award provided that the juridical seat or legal place of arbitration for the purpose of arbitration initiated under the claimants notice of arbitration dated 16 th December, 2011 shall be London, England. Article 33.9 of the PSC provides that the arbitration shall be conducted in accordance with the UNCITRAL Rules, 1985. However, subsequently it was recorded in the award that the applicable rules shall be the UNCITRAL Arbitration Rules, 1976. It was also submitted on behalf of the appellants that the objections raised by the UOI are yet to be determined by the tribunal on merits and shall be considered after considering the evidence at the time of rendering the final award.

66.Mr. Ganguly has next sought to persuade us that the seat of arbitration shall be in India as the PSC is governed by the law of India. According to Mr. Ganguly, laws of India would include the Arbitration Act, 1996. Therefore, irrespective of the provisions contained in Article 33.12, Arbitration Act, 1996 would be applicable to arbitration proceedings. The English law would be applicable only in relation to the conduct of the arbitration upto the passing of the Partial Final Award. We are unable to accept the aforesaid submissions of Mr. Ganguly. As noticed earlier, Article 32.1 itself provides that it shall be subject to the provision of Article 33.12. Article 33.12 provides that the arbitration agreement contained in this Article shall be governed by the laws of England. The term ‘laws of England’ cannot be given a restricted meaning confined to only curial law. It is permissible under law for the parties to provide for different laws of the contract and the arbitration agreement and the curial law. In Naviera Amazonica SA (supra), the Court of Appeal in England considered an agreement which contained a clause providing for the jurisdiction of the courts in Lima, Peru in the event of judicial dispute and at the same time contained a clause providing that the arbitration would be governed by the English Law and the procedural law of arbitration shall be the English Law. The Court of Appeal observed as follows :-

70.We are in respectful agreement with the aforesaid judgment.

71.In view of the aforesaid binding precedent, we are unable to accept the submission of Mr. Ganguly that the Arbitration Act, 1996 has not been excluded by the parties by agreement. For the same reasons, we are unable to approve the conclusions reached by the Delhi High Court that reference to laws of England is only confined to the procedural aspects of the conduct of the arbitration reference.

72.We are also unable to agree with the submission of Mr. Ganguly that since the issues involved herein relate to the public policy of India, Part I of the Arbitration Act, 1996 would be applicable. Applicability of Part I of Arbitration Act, 1996 is not dependent on the nature of challenge to the award. Whether or not the award is challenged on the ground of public policy, it would have to satisfy the pre-condition that the Arbitration Act, 1996 is applicable to the arbitration agreement. In our opinion, the High Court has committed a jurisdictional error in holding that the provisions contained in Article 33.12 is relevant only for the determination of the curial law applicable too the proceedings. We have already noticed earlier that the parties by agreement have provided that the juridical seat of the arbitration shall be in London. Necessary amendment has also been made in the PSCs, as recorded by the Final Partial Consent Award dated 14th September, 2011. It is noteworthy that the Arbitration Act, 1996 does not define or mention juridical seat. The term ‘juridical seat’ on the other hand is specifically defined in Section 3 of the English Arbitration Act. Therefore, this would clearly indicate that the parties understood that the arbitration law of England would be applicable to the arbitration agreement.