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6. In the written submissions it is submitted that the Scheme of comap136.17.doc the Arbitration Act vis-a-vis foreign seated arbitration does not permit the respondent to approach courts in India under Section 9 of the Act. This submission is based on the fact that the parties had executed the Settlement Deed, and consequently the Arbitration Agreement, prior to the Arbitration and Conciliation (Amendment) Act, 2015 and had agreed to seat their arbitration in Singapore. The parties have excluded availability of Part-I of the Act, including Section 9 of the Act. The law in India was settled by the Supreme Court in Bharat Aluminum Co. vs. Kaiser Technical Service (2012) 9 SCC 552 ('BALCO' for short). It was held that Section 9 of the Act was not applicable to foreign-seated International Commercial Arbitration. The BALCO judgment was pronounced on 6th September, 2012. The Arbitration Agreement in the present case was executed on 9th September, 2014. Section 9 of the Act, therefore, is not applicable to the facts of the case. The dispute between the parties was referred to arbitration on 12th April, 2015. The amended act came into effect from 23rd October, 2015. The Counsel, therefore, submitted that the negative right of the parties under the Settlement Deed - to not have comap136.17.doc the ability to approach courts in India under Part I of the Act - had accrued before the amendment to the Act took effect. It is submitted that Section 26 of the Amendment Act must be given purposive interpretation based on the findings of Apex Court in the case of Thyssen judgment. The Counsel referred to the 246 th report of the Law Commission of India. It is the submission of the Counsel that proviso to Section 2(2) of the Arbitration Act cannot be made applicable retrospectively. One of the written submission of the appellant reads as under:

(ii) While the decision in BALCO was made prospective to ensure that hotly negotiated bargains are not overturned overnight, it results in a situation where Courts, despite knowing that the decision in Bhatia is no longer good law, are forced to apply it whenever they are faced with a case arising from an arbitration agreement executed pre- BALCO.