Summary
The Supreme Court dismissed an application to appoint an arbitrator because the agreement, read as a whole, selected Hong Kong as the arbitral seat. Indian governing law and a Delhi-courts clause did not override the provision for final resolution by arbitration administered in Hong Kong. The 2015 proviso permitting specified Indian-court assistance for foreign-seated arbitrations did not include section 11. The petitioner remained free to approach the Hong Kong International Arbitration Centre.
Issues
- Whether Hong Kong was the arbitral seat despite Indian governing law and a Delhi jurisdiction clause.
- Whether an Indian appointment application was maintainable for that foreign-seated arbitration.
Provisions considered
- Section 2(2), including 2015 proviso, Arbitration and Conciliation Act, 1996Specified provisions can apply to qualifying foreign-seated international arbitrations, subject to contrary agreement; section 11 is not among them. (¶¶ 16, 25, 26)
Held
- Seat and venue are distinct; the words specifying a place alone do not conclusively establish the seat. Intention must be gathered from the agreement’s other clauses and the parties’ conduct. (¶¶ 19, 20, 21)
- The designation of Hong Kong, together with the requirement of final resolution by arbitration administered there, established a Hong Kong seat and its curial law and supervisory jurisdiction. Indian courts consequently lacked appointment jurisdiction. (¶¶ 17, 21, 22, 23, 24)
- The Indian-law clause governed the substantive contract. Its Delhi-courts language, read with the express interim-relief clause, did not change or dilute the choice of Hong Kong as arbitral seat. (¶¶ 25, 26)
- The 2015 proviso to section 2(2) extended specified assistance provisions to qualifying foreign-seated arbitrations, but omitted section 11. The appointment petition was therefore not maintainable, with liberty to seek appointment through the Hong Kong International Arbitration Centre. (¶¶ 25, 26, 27)
- The Court expressly declined to decide the challenge to the correctness of BGS Soma or its treatment of Hardy Exploration, resolving this petition on its own definite contractual clauses. (¶ 13)
Result
Arbitration petition dismissed as not maintainable; petitioner free to approach the Hong Kong International Arbitration Centre for appointment if desired.