CASES AND RATIO DECENDII

CASE FACTS RATIO DECENDI

Afcons Infrastructure v.  Construction dispute with no  Afcon held that the language of
Cherian Verkey Pvt. Co. arbitration clause in the agreement Section 89 is wrong and the
Ltd., (2010) 8 SCC 24…  Under Section 89, parties decided definitions of judicial settlement and
to go to court mediation have been interchanged
 Court held that Section 89 is badly  Saleem held that the court cannot
drafted force parties to settle and can only
 Supreme Court reviewed the direct them to appropriate dispute
Saleem case again to determine resolution mechanisms
the validity of Section 89  Court held that under Section 89,
both parties must give clear consent
for arbitration to take place
 However, Lok Adalat, Mediation,
Judicial settlement possible w/o
consent
 Suitable cases- Trade, commerce &
contracts; soured relationships; Need
of continuity; Tortious liability;
Consumer disputes

Patil Automation Private N/A  Section 12A of the Commercial Courts

Limited vs Rakheja Act is mandatory. Any suit violating
Engineers Private Limited, this will be rejected.
2022 (SC)
678
Ayodhya Dispute (M. Siddiq N/A  One of first cases to be officially
(D) v. Mahant Suresh Das, mandated for mediation by the
Civil Appeal No. 10866- judiciary.
10867 of 2010)
Jagdish Chander v. Ramesh  A partnership existed between two  The terms of the agreement must
Chander, (2007) 5 SCC 719 partners indicate the parties' intention to
 One partner claimed the engage in dispute settlement privately,
partnership ended a long time ago i.e., through arbitration.
 Appellant filed a SLP before the  The use of the term 'adjudication'
Supreme Court, stating they were does not necessarily exclude the
unable to appoint an arbitrator possibility of arbitration; it may still
 Other party argued there was no indicate an intention to resolve
dispute as the partnership had disputes privately.
ended and Clause 16 was not an  The words used must demonstrate a
arbitration clause determination and conviction to use
arbitration as a remedy, rather than
mere contemplation.
 The intention of the parties is crucial,
and the written document must show
their intention to use arbitration,
either in the present or the future.
 If the agreement is only suggesting
possibility of arbitration in the future,
rather than obligating the parties to
 refer to arbitration, the agreement is
not valid and enforceable.
 If an arbitration clause is present, the
courts will give a liberal interpretation
to uphold its validity.

MV Baltic Confidence v.  A standard arbitration clause in a  The validity of an arbitration clause in

STC, (2001) 7 SCC473 Charter Party Agreement was a Bill of Lading depends on the
incorporated in a Bill of Lading. intention of the parties.
 However, the expression “Charter  Specific reference to the arbitration
Party” was not changed to “Bill of clause in the Charter Party Agreement
Lading” while incorporating the must be made while incorporating the
arbitration clause in the Bill of conditions in the Bill of Lading.
Lading.  The incorporating clause should be
given a meaning that gives effect to it
and not invalidated by a pedantic or
technical reading of the clause.

Caravel Shipping Services v.  A consignor (Premier Sea Foods  The printed condition for the
Premier Sea Foods Exim Pvt. Ltd.) and an agent arbitration clause of the Bill of Lading
[Supreme Court, 29 (Caravel Shipping Services Pvt. Ltd.) were part and parcel of the main
October 2018 entered into a Bill of Lading for contract and both parties were bound
in Civil Appeal No. 10800- transport of consignment. by the same.
10801/2018]  The consignor filed a suit to  An arbitration agreement needs to be
recover money from the agent. in writing but need not be signed by
 The agent filed an Interlocutory both parties, as provided in Section
Application stating that the dispute 7(3) of the Act.
should be referred to arbitration as  Section 7(4) of the Act merely adds to
there was an arbitration clause in the requirement under Section 7(3)
the Bill of Lading. and does not provide that an
 The Sub-Judge's Court, Kochi, arbitration agreement needs to be
dismissed the application stating signed in all cases.
that the arbitration clause printed
in the terms and conditions of the
Bill of Lading would not be binding
on the parties.

Enercon India Ltd. v.  Enercon India is a joint venture  The Supreme Court found that the
Enercon GmBH, AIR 2014 company formed by the Mehra arbitration agreement in the IPLA was
SC 3152. family (Appellants 2 and 3) and valid and existing. They stated that the
Enercon Germany. parties cannot avoid arbitration
 The dispute arose due to the non- without just cause, even if there is
delivery of supplies governed by an dispute about validity of underlying
Intellectual Property Licence contract. The arbitral tribunal could
Agreement (the IPLA). decide on the dispute (Kompetenz-
 Enercon India and the Mehra Kompetenz)
family claimed that the IPLA was  The court interpreted the arbitration
not concluded and did not bind the clause from the point of view of a
parties. ‘reasonable business person’ and
 They also contended that there held that it was not ‘unworkable’ or
 was no binding arbitration pathological, and therefore
agreement as the arbitration enforceable.
clause was in the IPLA.  The seat of arbitration was
determined to be in India, as Indian
law was chosen as the law applicable
to all aspects of the agreement and
the arbitration, and there were no
other connecting factors in favor of
London.
 Once the seat of arbitration has been
fixed as India, the Indian courts have
exclusive jurisdiction to exercise
supervisory powers over the
arbitration.

NN Global Mercantile Pvt N/A  Court held that non-payment of

Ltd v. Indo Unique Flame stamp duty on contract would not
Ltd & Ors., (2021). render the arbitration agreement
contained in it as invalid or
unenforceable.
 Relied on doctrine of separability and
stated that it’s a curable defect,
therefore no need to stay arbitration
until payment of stamp duty.
 Observed that fraud is arbitrable as
arguments against it are archaic and
obsolete.
 Court also provided guidelines on how
courts should deal with situations of
insufficient stamping in respect of
cases under section, 8.9 and 11. (8
and 11 no impounding and stamp duty
to be paid before tribunal adjudicates,
whereas in 9, the interim relief will be
granted and then impounding and
payment of stamp duty). (RULE OF
LAW, HOWEVER OVERTURNED)
Intercontinental Hotels  There was an international  The court held that the doctrine of
Group (India) Pvt Ltd v. commercial arbitration agreement separability overrides the concern
Waterline Hotels Pvt Ltd, between two parties. under the respective Stamp Act.
Arbitration  The petitioner alleged that the  The court found that insufficient
Petition (Civil) No. 12 of respondent failed to pay the payment of stamp duty does not
2019 required fees and invoked section 9 affect the arbitrability of the
of the Arbitration Act for interim agreement. The issue of whether the
relief. stamp duty paid was insufficient or
 The petitioner claimed that the inappropriate is a question to be
agreement containing the answered at a later stage.
arbitration clause was an  The court did not determine what
unstamped document, rendering would be the sufficient stamp duty,
the arbitration defective. but instead required payment of the
 The court was asked to determine stamp duty as a condition for
 the sufficiency of stamp duty. allowing the arbitration clause as
valid.

Garware Walls Ropes Ltd v.  Case involves an arbitration  Court divided its judgment into non-
Coastal Marine agreement in an agreement not registration and non-stamping
Constructions & properly stamped as required by  Doctrine of severability applied to
Engineering Ltd in Indian Stamp Act Section 35 uphold party's intent to arbitrate
[Supreme Court, 10 April  Severability applied to non-
2019 in CA No 3631/ 2019, CRITIQUE: registration, but not to non-stamping
arising out of SLP(C) 9213/  Non-registration does not affect
2018]  Ruling relies on unrelated statutes invocation of arbitration
and defeats the purpose of the  Non-stamping invalidates arbitration
severability clause clause because it is inadmissible in
 Narrow application of doctrine evidence
impedes parties' intent to
arbitrate and fails to promote pro-
arbitration policy
 Interpretation of admissibility of
evidence as admissibility of
arbitration is too narrow and
ignores specific context of
arbitration agreements

Hero Electric Vehicles  Dispute between two families  Intellectual property disputes are
Private Limited & Anr v. (Family 1 and Family 4) over the non-arbitrable because they involve
Lectro E-Mobility Private use of the "Hero" trademark. rights in persona, whereas arbitration
Limited  There is a family settlement deals with rights in rem.
& Anr., 2021 SCC OnLine agreement and a trademark  Wherever rights in rem exist, they
Del 1058 agreement between the parties. must be determined by courts and
 Family 4 started using the "Hero" tribunals, not private forums like
trademark for their electric arbitration.
vehicles, which Family 1 disputes.  The trademark agreement was
 Family 1 claims exclusive right to incidental to the family agreement
use the "Hero" trademark, but and therefore arbitrable, but disputes
arbitration tribunal rules against involving deceptively similar marks or
them. infringement are not arbitrable and
must be determined by a court of law.

Cox and Kings Ltd v. SAP  Cox and Kings Limited entered into  The Supreme Court of India examined
India Pvt Ltd, Arbitration an agreement with SAP India the doctrine of Group of Companies in
Petition (Civil) No. 38/2020 Private Limited. the context of arbitration proceedings.
 Due to issues, Cox and Kings  The Court found various
rescinded the contractual inconsistencies in the approach
framework and demanded a adopted by various courts to apply the
refund. doctrine.
 Respondent No. 1 invoked an  The Court referred the matter to a
arbitration. larger bench for reconsideration of the
 An arbitral tribunal was Chloro Controls judgement.
constituted, but Respondent No. 2  The Court was of the view that the
was not made a part of the doctrine of Group of Companies
 proceedings. should be applied with caution and
 National Company Law Tribunal an arbitration agreement will not
appointed an Interim Resolution extend to the non-signatory party
Professional to an application merely on the ground that party is a
made against Cox and Kings member of a group of affiliated
Limited under the Insolvency and companies.
Bankruptcy Code, and directed the  The Court referred the matter to the
parties to adjourn the arbitration larger bench to determine whether
proceedings. the phrase 'claiming through or under'
 Cox and Kings Limited filed an in Sections 8 and 11 could be
application before the Supreme interpreted to include the Group of
Court of India to constitute an Companies doctrine and whether the
arbitral tribunal after sending a doctrine as expounded by Chloro
second notice to invoke arbitration Controls and subsequent judgments is
and arraying Respondent No. 2, but valid in law.
receiving no response from the
Respondents' side. Note: The bench opined that Chloro
Controls case has created a broad
understanding of this Doctrine which is not
suitable as it would go against distinct legal
identities of companies and party autonomy.
Further, its important to consider other factors
such as non-signatories participation in
execution of agreement as well as involvement
in performance and termination of contract.

Chloro Controls (I) P. Ltd v.  A suit was filed before the court  Normally, arbitration only takes place
Severn Trent Water regarding the validity of a Joint between parties who were signatories
Purification, (2013) 1 SCC Venture Agreement (JVA) between to the arbitration agreement and the
641. two parties, where the petitioner substantive contract. However, in
contended that the respondent some cases, a claim may be made
had breached the agreement by against a person who was not
not following the terms related to originally named as a party. In such
gas chlorination. cases, arbitration may still be possible
 The issue was whether the JVA only between a signatory and a non-
covered gas chlorination or signatory, but the onus lies on the
whether it could include electro signatory to show that the non-
chlorination even though it was not signatory should be a party to the
explicitly mentioned in the JVA. arbitration.
 There were multiple agreements  To include a third party in an
involved, some with an arbitration arbitration dispute without their
clause and some without. prior consent, two conditions must
Additionally, there were multiple be met:
parties involved, creating confusion  The intention to bind both
and complexity in resolving the the signatory and the non-
dispute. signatory should be clear and
established before the scope
of arbitration.
 You must show that the
transactions were with a
group of companies. Further,
 the transactions should be of
a composite nature, with a
direct relationship between
the signatory and the non-
signatory and commonality of
subject matter.
 In this case, it was established that all
the transactions were attached to the
mother agreement, and the
execution of supplementary
agreements was essential for the
mother agreement to come into
execution.

GMR Energy Ltd. v. Doosan  There are two agreements and two  The court relied on a Supreme Court
Power Systems India, 2017 MoUs, with three agreements judgement that upheld a similar
SCC OnLine Del 11625. being an EPC and two MoUs. arbitration clause providing that
 Doosan India has sent notice to all arbitration should be governed by the
parties, including a respondent SIAC rules and the Singapore
who is not a party to the three Arbitration Act, with Singapore as the
main agreements but is only a seat of arbitration.
subsidiary mentioned in the MoU.  The parties explicitly agreed to the
 Doosan argues that the parties SIAC rules and consented to the
agreed to arbitration under the choice of Singapore as the seat of
Singapore Arbitration Act, with arbitration.
Singapore as the seat of arbitration  GMR, a non-signatory, was part of
and SIAC rules applying (part 2). the MoU where there was no
 The respondent argues that they arbitration clause, but they were
were incorrectly added as a party deemed to be an alter ego of the
and that part 1 of the Arbitration parent company due to their
and Conciliation Act should apply common management and lack of
since both parties are Indian. corporate formality between the
companies.
 The issue of lifting the corporate veil
could be decided by both the arbitral
tribunal and the court as per Section
16 of the Arbitration and Conciliation
Act.
 If the dispute falls under part 1 of the
act, only the court can decide on
lifting the corporate veil.
 However, if the dispute falls under
part 2 of the act, which is an
international commercial arbitration,
then both the court and the tribunal
have the competence to decide on
lifting the corporate veil.
 In this case, since both parties
consented to SIAC rules and Singapore
as the seat of arbitration, it was
deemed to be a foreign arbitration
 and thus fell under part 2 of the act,
allowing both the court and the
tribunal to decide on lifting the
corporate veil.
 The court upheld the parties' consent
to the arbitration clause.

MTNL v. Canara Bank,  The case involves a dispute  An arbitration agreement can be
(2020) 12 SCC 767. between MTNL and CanFina. derived from communication between
 CanFina was created by Canara the parties, including electronic means
Bank for the purpose of issuing as per section 7(4)(b) of the act.
bonds.  If it can prima facie be shown that
 CanFina was not a party to the there was consent to arbitrate, it
agreement. would amount to arbitration.
 A non-signatory can be bound by an
arbitration agreement on the basis of
"group of companies" if three
essential factors are established.
 CanFina must be made a party to the
arbitration proceedings in order to
settle the dispute as the transaction
was of composite nature and also met
the other requirements. (applies the
principle in Chloro Controls)
 The principles of alter ego, lifting of
the corporate veil, and group of
companies must be applied to
determine liability.

Shapoorji Pallonji and Co  Indiabulls called for tender but  The court applied the "group of
Pvt Ltd v. Rattan India contract was executed by its companies" doctrine and cited the
Power Ltd & Anr., (Delhi HC subsidiary Elena Chloro Controls and MTNL cases
Judgment dated April 7)  Shapoorji received order from  The court found that Indiabulls was a
Indiabulls but a disagreement direct beneficiary of the contract
arose regarding contract execution between Elena and Shapoorji
 It was argued that Indiabulls was  There was a direct relationship
not a party to the contract and between Indiabulls and Elena, with
could not be compelled to arbitrate Indiabulls taking part in all execution
Issue:  Elena is a subsidiary of Indiabulls
 Can a non-signatory parent  The parent company (Indiabulls) was
company be compelled to arbitrate treated as a signatory to the contract
in a dispute between its subsidiary by applying the group of companies
and another party? doctrine

Galaxy Infra and  Praveen Electricals won a bid but  Existence of arbitration agreement
Engineering Pvt. Ltd. v. had a consultancy agreement with was established, and appointment of
Pravin Electricals Pvt. Ltd. the respondent. sole arbitrator upheld.
[Del HC,12 May  Invoices for the commission were  Invoices were not considered
2020] processed to Pravin Electricals exchanges under Section 7(4)(b) of
(parent company). the Arbitration and Conciliation Act.
  Galaxy filed an application for the  Group of companies doctrine was
appointment of an arbitrator. applied to establish the three
Issue: essentials and include Pravin
 Whether Pravin Electricals, a non- Electricals as a party to the
signatory to the consultancy agreement.
agreement, could be compelled to
arbitrate?

Alstom Systems India Pvt  The parties entered into an 1. Clause 29 of the Agreement made
Ltd v. Zillion Infra projects agreement in 2015. mediation a mandatory step before
Pvt Ltd, O.M.P. (COMM)  The Petitioner terminated the arbitration, barring direct application
351/2021 contract and delivered the for arbitration unless mediation fails.
termination letter to the 2. The Section 21 notice for arbitration
Respondent on the same day. can only be given after the mediation
 Clause 29 of the Agreement stated process has failed.
that any dispute should first be 3. The Tribunal must determine the
referred to mediation under the breaking point, i.e., the moment
rules of ICC-ADR. when it becomes clear that an
 The Respondent invoked the notice amicable settlement is impossible, to
under Section 21 of the Arbitration start the period of limitation for filing
Act, seeking arbitration. a Section 21 notice.
 The Tribunal rejected the 4. Article 10 of the ICC-ADR Mediation
Petitioner's application to dismiss Rules allows parties to refer a dispute
the case as time-barred. to arbitration even if mediation is
pending, unless there is an agreement
to the contrary.
5. Clause 29, which foreclosed
arbitration if mediation failed,
constituted an agreement within the
scope of Article 10.
6. The time consumed in mediation can
be excluded from the limitation
period according to Article 10.

PT Perusahaan Gas Negara  A dispute arose between  The court clarified that the DAB's
(Persero) TBK v. CRW Joint Perusahaan Gas Negara and CRW decision becomes final and binding if
Operation [2015] SGCA over variation order proposals. no dissatisfaction notice is submitted
30  The contract had provisions for a within 28 days.
dispute adjudication board (DAB)  Clause 20.4 of the contract stated that
and arbitration. the DAB's decision is binding unless
 Perusahaan Gas Negara disagreed revised through amicable settlement
with one decision of the DAB, or arbitration.
requiring payment of USD$17  The court ruled that because
million to CRW. Perusahaan Gas Negara expressed
 Perusahaan Gas Negara expressed dissatisfaction, the DAB's decision was
dissatisfaction with the decision. not final and binding.
 CRW initiated arbitration, claiming  The dispute should have been referred
the right to the payment. to arbitration as a second dispute
under Clause 20.6, instead of relying
on non-compliance provisions (Clause
20.7).
  The court found that the arbitration
tribunal exceeded its authority by
treating the DAB's decision as final
without reviewing its compliance
with the contract.
 The tribunal's award was set aside,
emphasizing the need to review the
case's merits and follow the
contractual provisions.
 This case provides guidance on when
a decision becomes final and binding
under the contract and how to
handle disputes between the DAB
and arbitration.

Saraswati Construction  The parties intended to resolve  The court held that if the parties
Company v. East Delhi Co- their dispute through amicable solely rely on amicable resolution
Operative Group Housing consultation. without initiating any settlement
Society Ltd., 1994 SCC  There was uncertainty regarding talks, they risk running out of the
OnLine Del 563 whether the clause for amicable limitation period and losing their
resolution was mandatory or right to pursue other dispute
directory. resolution methods.
 It was concluded that the clause for
amicable resolution was directory in
nature, not mandatory.
 The court emphasized the potential
downfall of relying on a precondition
for amicable resolution, where the
parties have a limited time frame to
resolve the dispute but fail to take any
action until the last day.
M/s. Simpark Infrastructure  The court considered the drafting of
Pvt. Ltd. v. Jaipur Municipal the Multi-Tiered Dispute Resolution
Corporation, 2012 SCC (MTDR) clause to determine the
OnLine Raj 2738 intention of the parties.
 The court emphasized that the
language used in the MTDR clause is
crucial in understanding the parties'
intent.
 The court found that the use of the
word "shall" in the clause indicated a
mandatory nature, suggesting that
the parties were obligated to engage
in conciliation within the specified
time frame. Basically, it was held that
where the parties agreed to a
particular procedure for dispute
resolution and prescribed condition
precedent for invoking the arbitration
clause, the same is required to be
followed.
Geo Miller & Co. Pvt. Ltd. v.  The court emphasized the importance
Rajasthan Vidyut Utpadan of subjective analysis in determining
Nigam Ltd 2019 SCC the intention of the parties in relation
OnLine SC 1137 to negotiation and mediation.
 The court recognized that the
limitation period should be adjusted
based on the breaking point or the
point at which a party ceases to
participate in the negotiation or
mediation process in good faith.
 The court acknowledged that while
the Limitation Act and the Arbitration
Act may not explicitly allow for
extensions or second arbitrations,
there is room for interpretation and
amendment in light of the parties'
intentions.
Bharat Aluminium  The parties entered into an  The court held that the Bhatia and
Company v. Kaiser agreement for the supply of Venture Global decisions wrongly
Aluminium Technical equipment and related services, granted extra-territorial application
Service Inc., (2012) 9 with a dispute resolution clause to the 1996 Act, which was not the
SCC 552 referring disputes to arbitration intention of the Indian Parliament.
seated in England.  Indian courts should not assert
 The Appellant filed applications to jurisdiction in matters related to
set aside the arbitration awards interim remedies, appointment of
before the Chhattisgarh High Court arbitrators, and setting aside foreign
under Section 34 of the Arbitration awards in foreign-seated arbitrations.
and Conciliation Act, 1996 (Part I of  The Indian courts do not have
the Act). jurisdiction to entertain civil suits
seeking interim relief in aid of foreign-
seated arbitrations, as such relief does
not warrant the institution of a civil
suit.
 Part I of the 1996 Act will continue to
apply to domestic and international
arbitrations seated in India, granting
Indian courts broad supervisory
powers over the arbitral process in
such cases.

Union of India v. Reliance  Two Production Sharing Contracts  Reliance I held that both a foreign
Industries, 2015 (10) SCALE (PSCs) were entered into between seat and a foreign law governing the
149 RIL, UOI, Enron, and ONGC, which arbitration agreement were
were later amended to substitute necessary to exclude Part I.
Enron with BG.  Reliance II relaxed the criteria for
 The arbitration agreement exclusion, requiring either a foreign
provided for the venue to be seat or a foreign law to govern the
London (later consented to as the arbitration agreement to exclude Part
seat) and governed by English law, I.
while Indian law governed the  Reliance II appears to blur the
 substantive issues. distinction between contracts pre and
 Disputes arose between RIL and post BALCO, reducing the scope of
UOI, and arbitration proceedings Indian court interference by relying on
were initiated. Bhatia International.
 However, Reliance II introduced
uncertainty by stating that the Bhatia
principle would apply where the
agreement stipulates a seat in India or
when a judgment cannot be reached
on the seat being outside India.
 The distinction between venue and
seat in the second limb of the
judgment is unclear and might refer to
cases where the venue is outside India
for convenience but the seat is inside
India.

Aniket SA Investments LLC  Aniket SA Investments LLC filed a  The choice of seat in an arbitration
v. Janapriya Engineers petition under Section 9 of the agreement confers exclusive
Syndicate Private Limited Arbitration and Conciliation Act, jurisdiction on the courts of that seat.
and seeking interim reliefs.  The 'subject to' clause in the
Ors (Judgment dated  The arbitration agreement stated governing law and jurisdiction
January 29) that the 'seat' of arbitration was provision means that the courts
Mumbai. specified therein will have jurisdiction,
 The governing law and jurisdiction but only to the extent not conflicting
clause specified that 'subject to' with the chosen seat.
the arbitration clause, the courts of  In this case, the arbitration agreement
Hyderabad shall have exclusive designated Mumbai as the seat,
jurisdiction over disputes arising granting exclusive jurisdiction to the
from the agreement. courts in Mumbai.
 The courts in Hyderabad mentioned in
the jurisdiction clause were subject to
the seat at Mumbai, and therefore,
the courts in Mumbai had exclusive
jurisdiction over the matter.

Test for seat:

 In cases where a specific "venue" is
explicitly mentioned in the
arbitration agreement, and no
alternative place is designated as the
"seat," along with the presence of a
supranational set of rules governing
the arbitration and absence of other
significant indications to the contrary,
it can be firmly concluded that the
stated venue is, in fact, the legal seat
of the arbitration proceedings.
PASL Wind Solutions  PASL Wind Solutions Pvt Ltd  The Supreme Court clarified that two
Private Limited v. GE Power ("PASL") and GE Power Conversion Indian parties can choose a foreign
Conversion India Private India Pvt Ltd ("GE India") entered arbitral seat and that parties to such
Limited, 2021 SCC Online into a settlement agreement. foreign-seated arbitrations can obtain
SC 331.  Both companies are incorporated interim relief from Indian courts.
in India.  The court held that the arbitral seat
 The settlement agreement was Zurich based on the arbitration
contained an arbitration clause agreement and the tribunal's
providing for arbitration under ICC determination.
Rules seated in Zurich, Switzerland,  The court rejected the argument that
governed by Indian law. only an "international commercial
 Disputes arose, and PASL initiated arbitration" under Section 2(1)(f) of
arbitration proceedings against GE the Act can be considered a foreign
India in 2017. The tribunal ruled award enforceable under Part II of the
that Zurich was the seat, but Act.
hearings would be conducted in  The court clarified that Part I and Part
Mumbai. II of the Act are mutually exclusive,
 In 2019, the tribunal issued a final and the definition of "international
award dismissing PASL's claims and commercial arbitration" in Part I does
awarded damages and costs to GE not apply to Part II. The relevant factor
India. for Part II is the choice of a foreign
 GE India sought enforcement of arbitral seat, irrespective of the
the award before the Gujarat High parties' foreign nexus.
Court under Sections 47 and 49 of  The court determined that the award
the Indian Arbitration and satisfied the requirements of Section
Conciliation Act 1996 (the "Act"), 44 of the Act, making it a "foreign
which applies to the enforcement award" enforceable under Part II.
of foreign awards.  The court held that allowing two
Indian parties to choose a foreign seat
does not contravene public policy
under Section 23 of the Indian
Contract Act or Section 28 of the Act,
as arbitration agreements are
exempted from the application of
Section 28.
 The court concluded that there is no
harm to the public in allowing Indian
parties to exercise party autonomy in
selecting a foreign arbitral seat.
 The court clarified that Indian
substantive law is mandatorily
applicable only to domestic disputes
seated in India, and two Indian parties
choosing a foreign seat does not
preclude the choice of foreign
substantive law.

Hunch Circle Private Ltd v.  The case involved a petition under  Usually, the court having jurisdiction
Future times Technology Section 11(6) of the Arbitration and over the seat of arbitration, as
India Pvt Ltd, DHC (2022) Conciliation Act, 1996 (the "Act") specified in the contract, would have
for the appointment of an the authority to handle matters
arbitrator. under Sections 9, 11, and 34 of the
  The main agreement between the Arbitration and Conciliation Act.
parties contained two clauses However, if the jurisdiction clause in
relevant to the dispute: Clause 8.1 the contract grants exclusive
on "Governing Law" and Clause 8.2 jurisdiction for arbitral proceedings to
on "Arbitration." a court located in a different place,
 Clause 8.1 stated that the then the petition under Section 11 of
agreement would be governed by the Act must be filed in the High
the laws of India, and the courts at Court that exercises jurisdiction over
the location of the main premises that particular place.
(Gurgaon) would have exclusive
supervisory jurisdiction over
matters arising from the
agreement, including interim relief
and enforcing arbitral awards.
 Clause 8.2 provided for arbitration
under the Act, with the seat of
arbitration specified as Delhi and
the venue of arbitration as India.
 The question before the Delhi High
Court (DHC) was which court had
jurisdiction to entertain the
petition under Section 11 of the
Act.

Booz Allen & Hamilton v.  Capstone Investment Co. Pvt. Ltd.  The Supreme Court identified three
SBI Home Finance (2011) 5 and Real Value Appliance Pvt. Ltd. conditions for a subject matter to fall
SCC 532 obtained a loan from SBI Home within the jurisdiction of arbitration:
Finance Ltd., secured by capability of adjudication and
mortgaging their flats. settlement by arbitration, coverage
 The parties entered into a leave by the arbitration agreement, and
and license agreement with Booz reference of the disputes to
Allen and Hamilton Inc., which arbitration.
included an arbitration agreement.  The court reserved certain categories
 SBI filed a suit for redemption of of disputes, such as rights in rem, from
money through the sale of the arbitration, as they involve rights
mortgaged premises. against the world and not just
between the parties.
 Rights in personam, including those
arising out of rights in rem, were held
to be arbitrable.
 The court clarified that rights in rem
determine rights between parties to
the action and against any other
person claiming an interest in the
subject matter.
 Supreme court carved out a list of 6
categories of dispute that are not
arbitrable-
1. Disputes which give rise to or arise out
criminal offences.
2. Matrimonial disputes
 3. Guardianship matters.
4. Insolvency and winding up matters.
5. Testamentary matters
6. Eviction or tenancy matters (transfer of
property issue)
Vidya Drolia v Durga  Vidya Drolia entered into a lease  Disputes related to tenancy and
Trading [Supreme Court, 14 agreement with Durga Trading. eviction under rent control laws were
December 2020]  Disputes arose between Vidya previously held non-arbitrable.
Drolia and Durga Trading.  Rent control legislation aims to
 Vidya Drolia initiated arbitration protect tenants from eviction and
proceedings under Section 11. ensure fair rents.
 Durga Trading challenged the  Disputes involving the interpretation
arbitrability of the dispute. and application of rent control
 Durga Trading argued that the legislation require detailed factual
dispute involved the interpretation inquiries and may involve complex
and application of rent control legal issues.
legislation.  The Supreme Court has propounded
 Durga Trading contended that the a four-fold test to determine non-
involvement of rent control arbitrability.
legislation rendered the dispute  The test includes factors such as
non-arbitrable. actions in rem, third-party rights,
sovereign and public interest
functions of the State, and non-
arbitrability under specific statutes.
 An affirmative answer to any of the
factors renders the dispute non-
arbitrable.
 The tests are not absolute but
provide guidance in determining non-
arbitrability under Indian law.

Avitel Post Studioz Limited  Avitel Post Studioz Limited entered  The first test for determining the
v HSBC PI Holdings into a share purchase agreement arbitrability of fraud is whether the
(Mauritius) Limited with HSBC PI Holdings (Mauritius) arbitration clause or agreement itself
[Supreme Limited. can be considered to exist. If it is
Court, 19 August 2020 in  HSBC discovered facts about clear that the party accused of
CA No 5145/ 2016] Avitel's finances that contradicted breaching the agreement did not
the claims made by Avitel during enter into the arbitration agreement
the deal. at all, the dispute would not be
 HSBC initiated arbitration arbitrable.
proceedings and sought urgent  The second test applies when
relief by notifying the Singapore allegations of arbitrary, fraudulent, or
International Arbitration Centre malafide conduct are made against
(SIAC) and appointing an the State or its instrumentalities. In
emergency arbitrator. such cases, where questions arise in
 HSBC also filed proceedings in the the public law domain, it may be
Bombay High Court under Section necessary for the case to be heard by
9 of the Arbitration and a writ court rather than an arbitrator.
Conciliation Act (ACA), seeking  In the present case, the fraud alleged
interim relief that required Avitel does not vitiate the arbitration
to deposit $60 million USD for the agreement itself, as the agreement
 disputed amount in arbitration. should be read as an independent
 Avitel challenged the arbitrability clause. A finding that the contract is
of the dispute, arguing that it null and void or voidable due to fraud
involved allegations of fraud and does not invalidate the arbitration
misrepresentation, which should clause, which is generally broad in
be resolved through court scope.
proceedings rather than  The fraudulent actions of Avitel,
arbitration. including impersonation and diversion
of funds, do not have a "public
flavour" and therefore the dispute is
arbitrable.
 The filing of a criminal case does not
automatically render a dispute non-
arbitrable. The seriousness of the
case and the impact on third-party
rights should be considered to
determine arbitrability.

Deccan Paper Mills Co. Ltd.  Deccan Paper Mills and Ashray  Disputes involving allegations of
v. Regency Mahavir Premises entered into an fraud in the execution of an
Properties & Ors. [Supreme agreement for the development of agreement can be arbitrated if they
Court, land owned by Deccan. fall under Section 17 of the Contract
19 August 2020 in CA No  Ashray later assigned the rights and Act or involve fraud in the
5147/ 2016] execution of the agreement to performance of the contract, which is
Regency Mahavir Properties. a civil wrong.
 Mr. Atul Chordia, who orchestrated  Mere criminal overtones in a
the transaction fraudulently, transaction do not automatically
assured Deccan's directors of the render it non-arbitrable.
assignment.  The absence of averments regarding
 Deccan challenged the binding the signing of the Regency
nature of the Regency Agreement Agreement and Deed negates the
and filed a suit for its cancellation. arbitration clause and the "fraud
 Regency sought arbitration under exception" in this case.
Section 8 of the Arbitration and  The proceeding under Section 31(1)
Conciliation Act, which was of the Specific Relief Act, concerning
granted. the cancellation of written
 Deccan appealed to the Supreme instruments, is an action in personam
Court after its writ petition was between parties or those with
dismissed by the High Court. derivative title, rather than an action
in rem.
 Cancelling an unregistered instrument
is considered an action in personam,
while cancelling a registered
instrument is not an action in rem.
 Judgments passed under Section 31 of
the Specific Relief Act bind only the
parties to the suit, not all claimants to
the property.

Lamps Plus, Inc. v. Varela -  An employee of Lamps Plus, Inc.  The Federal Arbitration Act (FAA)
139 S. Ct. 1407 (2019) filed a class action lawsuit against governs the enforcement of
the company. arbitration agreements.
 The employee alleged that the  The FAA requires that arbitration
company failed to protect his agreements be enforced according to
personal information from a data their terms.
breach.  Courts cannot impose requirements
 The employee had signed an on arbitration agreements that are not
arbitration agreement as a inherent to the agreement itself.
condition of his employment, but  The consent of the parties is crucial in
the agreement did not explicitly arbitration, and parties should not be
address class arbitration. compelled into procedures they did
not agree to.
 The parties must explicitly authorize
class arbitration, and such
authorization cannot be inferred from
ambiguous contract language.

Fulham Football Club  Fulham Football brought court  Fulham's dispute did not involve
(1987) Ltd v Richards proceedings against Sir David seeking a public policy remedy but
[2012] 1 All E.R. (Comm) Richards. was related to a contractual matter.
1148  Sir David was the Chairman of FAPL  The arbitration award would only be
(Football Association Premier binding on the parties involved and
League) at the time. would not affect the public.
 The dispute arose from allegations  The dispute was limited to a contract
that Sir David acted as an between the football clubs and did not
unauthorized agent in the transfer concern all football clubs.
of player Peter Crouch.  The existence of a statutory right
 Arbitration was available as a form does not make it inalienable, and
of dispute resolution under the contractual agreements can differ
FAPL Articles of Association and from statutory rights.
Rules.  If the dispute falls within the terms of
 Fulham attempted to invoke the arbitration agreement, it should
Section 994 (Unfair Prejudice proceed with arbitration unless there
Petition) of the Companies Act, are public policy factors involved.
2006.  Third parties are not bound by
 Sir David and FAPL requested a stay arbitration agreements, and even if
of the petition in favor of the statute provides for court relief,
arbitration. arbitrators can still grant appropriate
 The court of first instance granted relief.
the stay, stating that the dispute  The inclusion of the court's jurisdiction
fell within the arbitration does not exclude the jurisdiction of
agreement and that the statutory arbitrators.
right of a member to present an
unfair prejudice petition could be
removed or diminished by
contract.
 The Court of Appeal upheld the
lower court's ruling but on
different grounds.

Nori Holdings Limited et al  Nori Holdings and other companies  The dispute arose from a legal
v PJSC Bank Okritie (Claimants) entered into a loan relationship between the parties, and
Financial Corporation agreement with PJSC Bank Okritie therefore, it was capable of being
[2018] Financial Corporation (Defendant). resolved through arbitration.
EWHC 1343 (Comm)  The loan agreement included an  The arbitration agreement was found
arbitration clause specifying LCIA to be valid and binding, and the
arbitration in London. parties were obligated to arbitrate the
 The Defendant failed to repay the dispute as per the terms of the
loan, leading the Claimants to agreement.
initiate a court action to recover  Absent any statutory restrictions or
the amount owed. rules of public policy, a broadly
 The dispute primarily centered worded arbitration clause should be
around the termination of loan and interpreted according to its plain
pledge agreements worth meaning without implying any
approximately US $500 million limitations.
between the parties.  Insolvency claims were not excluded
 Most of the pledge agreements from the scope of the arbitration
and termination agreements clause unless explicitly stated.
contained arbitration clauses  The court determined that the dispute
designating London-seated was arbitrable since it involved a
arbitration under the LCIA rules, disagreement regarding the
governed by Cypriot law. restructuring and did not seek
remedies outside the authority of the
arbitral tribunal.
 As a result, the court stayed the court
proceedings and directed the parties
to pursue arbitration in accordance
with the LCIA arbitration agreement.

Vijay Kumar Munjal and  Dispute between two families  Disputes arising between the
Ors v. Pawan Munjal and (Family 1 and Family 4) over the contracting parties regarding their
Ors, ARB.P. 975/2021 use of the "Hero" trademark. rights and obligations under a
 There is a family settlement contract are arbitrable.
agreement and a trademark  The focus of the dispute being limited
agreement between the parties. to the contractual rights under the
 Family 4 started using the "Hero" Family Settlement Agreement and
trademark for their electric Trade Marks and Name Agreement.
vehicles, which Family 1 disputes.  The rights of the F1 Family group are
 Family 1 claims exclusive right to being contested, and the dispute does
use the "Hero" trademark, but not affect the rights of any third party.
arbitration tribunal rules against  The court recognizes that actions to
them. enforce contractual rights in such
disputes are actions in personam,
rather than involving broader rights
in rem.
 Therefore, the dispute falls within the
scope of arbitrability, and arbitration is
a suitable means of resolving the
dispute between the parties.

Emaar v MGF  The agreement between the  The presence of an arbitration clause
parties contained an arbitration in the agreement does not
 clause. automatically oust the jurisdiction of
 The respondent filed a complaint the consumer court.
before the NCDRC due to the  The amendment to Section 8 of the
appellant's failure to deliver the Arbitration Act aimed to minimize
villa. judicial intervention and requires
 The appellant filed an application courts to determine the existence of a
under Section 8 of the Arbitration valid arbitration agreement.
Act to refer the matter to  Unless it is prima facie established
arbitration. that no valid arbitration agreement
exists, courts are obligated to refer
parties to arbitration.
 The expansive interpretation of the
amendment should not undermine
the jurisdiction of special statutes
designed to address specific disputes.
 The NCDRC retains jurisdiction to
decide the case, even in the presence
of an arbitration clause, unless it is
established that no valid arbitration
agreement exists.

Ssangyong Construction  Ssangyong Construction Limited  A party can challenge an arbitral

Limited v NHAI [Supreme entered into a contract with NHAI award on the ground of patent
Court, 8 May 2019] for the construction of a highway. illegality.
 A dispute arose between the  Patent illegality refers to an error that
parties regarding the contract. goes to the root of the matter and has
 The dispute was referred to a material bearing on the outcome of
arbitration. the case.
 The arbitrator issued an award in  The court discussed the setting aside
favor of NHAI. of an award if it contravenes public
 The Appellant (Ssangyong policy.
Construction Limited) filed an  The inclusion of a new circular in the
appeal under Section 34 of the contract brought material changes,
Arbitration and Conciliation Act raising questions about the validity of
(A&C Act) before the Delhi High the old arbitration agreement and the
Court. award given by the arbitrator.
 The single judge of the Delhi High  The court set aside the arbitral award
Court upheld the majority award in due to patent illegality and remitted
favor of NHAI. the matter back to the arbitral tribunal
 The Appellant then appealed to a for reconsideration.
Division Bench of the Delhi High  If the majority award was set aside,
Court, which also upheld the the parties would have to re-agitate
majority award in favor of NHAI. their claims before a new arbitral
 Dissatisfied with the decisions of tribunal.
the Delhi High Court, the Appellant  However, the Supreme Court has the
approached the Supreme Court. power under Article 142 to uphold the
minority awards in special
circumstances.

Lohia vs. Lohia (2002) 1 Arb  Family members entered into a  Section 10 of the Arbitration and
LR 493 (SC family settlement to resolve their Conciliation Act, 1996 requires an
 disputes through two arbitrators. arbitral tribunal to consist of an odd
 Claims were made by parties number of arbitrators.
before these two arbitratorss, and  Section 16 of the Act allows parties to
an award was passed. challenge the composition of the
 The award was challenged by the arbitral tribunal before the tribunal
first and second respondents, itself, but the challenge must be made
arguing that an even number of before submitting the statement of
arbitrators is not permissible under defense.
the Arbitration and Conciliation  An arbitral award can only be
Act, 1996. challenged under Section 34 if the
 The single judge of the Kolkata composition of the arbitral tribunal
High Court set aside the award, or the arbitral procedure is not in
and the division bench upheld the accordance with the agreement of
decision. the parties and conflicts with a
 The appeal was filed before the provision of Part I of the Act from
Supreme Court, challenging the which the parties cannot derogate.
composition of the arbitral  Section 10 is considered a derogable
tribunal. provision, and an arbitration
agreement providing for an even
number of arbitrators can be valid if
parties knowingly agree and
participate in the proceedings.

MMTC Ltd. vs. Sterlite  The dispute involved two parties,  Section 7 of the Act does not require
Industries Ltd. (1996) 6 SCC M and S, who had a contract that the number of arbitrators to be
716 required the appointment of three specified in the arbitration agreement
arbitrators. for its validity.
 M claimed that the contract  Section 10 deals with the number of
stipulated the appointment of only arbitrators and is a machinery
two arbitrators, which rendered provision for the working of the
the agreement invalid according to arbitration agreement.
Section 10 of the Arbitration and  An arbitration agreement specifying
Conciliation Act. an even number of arbitrators does
 The parties decided to go to court not render the agreement invalid.
to resolve the issue.  The arbitration clause in this case
states that each party will nominate
one arbitrator, and the two arbitrators
will then appoint an umpire.
 This arrangement satisfies the
requirements of Section 7 of the Act,
making the arbitration agreement
valid.
 The agreement complies with the
implied condition in the First Schedule
to the Arbitration Act, 1940, which
requires the two arbitrators to appoint
an umpire.
 The Act does not contain any
provision that would make such an
agreement unenforceable.
 The appointment of arbitrators should
 be done in accordance with the terms
of the arbitration agreement and
Section 11 of the Act.

Garware Walls Ropes Ltd. v.  Garware Walls Ropes Ltd. and  The original arbitration agreement
Coastal Marine Coastal Marine Constructions & stipulated a three-member arbitral
Constructions & Engineering Ltd. had a contract for tribunal.
Engineering Ltd. vessel construction.  The parties agreed to appoint a sole
[Supreme Court, 10 April  The contract had an arbitration arbitrator to resolve their dispute
2019 in CA No 3631/ 2019, clause for a three-member arbitral instead.
arising out of SLP(C) 9213/ tribunal.  The court held that parties have the
2018]  A dispute arose, and Garware Walls freedom to determine the number of
Ropes Ltd. initiated arbitration arbitrators.
proceedings.  The absence of specific qualifications
 They later agreed to resolve the or experience requirements for the
dispute through a sole arbitrator arbitrator(s) in the agreement
and appointed one. supported the validity of the sole
 The sole arbitrator issued an award arbitrator appointment.
in favor of Coastal Marine  The court emphasized the principle of
Constructions & Engineering Ltd. party autonomy in arbitration.
 Garware Walls Ropes Ltd.  The decision made by the sole
challenged the validity of the arbitrator in the arbitral tribunal was
appointment of a sole arbitrator in upheld by the court.
court.
 The case reached the Supreme
Court for a final decision on the
validity of the appointment under
the arbitration agreement.

Amazon.Com NV  Future Group, a prominent offline 1. Legal status of an emergency

Investment Holdings LLC v. retailer in India, sought arbitrator (EA):
Future Coupons Private collaboration with foreign investors  The Delhi High Court ruled
Limited & to expand its business. that an EA is a sole arbitrator
Ors, 2021 SCC OnLine Del  Future Coupons Private Limited appointed by an arbitral
1279. (FCPL), a group entity, was institution to consider
restructured to acquire shares of applications for emergency
Future Retail Limited (FRL). interim relief.
 Amazon invested in FCPL and  The EA's order/award is
acquired 49% of its shares through binding on all parties, and it
a Share Subscription Agreement can only deal with emergency
(FCPL-SSA). interim relief.
 The FCPL-SSA stated that Amazon  The order/award of the EA
and the promoters (Biyanis) would can be challenged only at the
jointly exercise rights in FRL, seat of arbitration.
requiring Amazon's consent for any  The EA is considered an
decisions. arbitrator for all intents and
 FRL approved a transaction with purposes, and their powers
the Mukesh Dhirubhai Ambani are recognized under the
Group (MDA), which was restricted Indian Arbitration and
under the FCPL-SSA without Conciliation Act.
Amazon's approval.
  Amazon invoked arbitration under
the FCPL-SSA, governed by the
Singapore International Arbitration
Centre (SIAC) with New Delhi as
the seat.
 Amazon filed an application for the
appointment of an emergency
arbitrator (EA) due to the urgency
of the matter.
 FRL raised objections to the
jurisdiction and appointment of
the EA, claiming there was no valid
arbitration agreement.

Pravin Electricals Pvt Ltd v.  The case involved an appeal before 1. Inconclusive evidence on the
Galaxy Infra and the Supreme Court arising from a existence of an arbitration agreement
Engineering Pvt Ltd., 2021 Delhi High Court order on the 2. Inability to conclusively determine the
SCC appointment of an arbitrator under existence of an arbitration agreement
Online SC 190 Section 11(6) of the Arbitration and in summary proceedings:
Conciliation Act. The Supreme Court
 The High Court had concluded that acknowledged that it could
an arbitration agreement existed not definitively determine the
based on the documentation existence of an arbitration
placed on record and referred the agreement because it
parties to arbitration. required a detailed
 The Supreme Court was tasked examination of documentary
with determining whether an evidence and witness
arbitration agreement actually testimony.
existed.  Proceedings under Section 11
of the Act are summary in
nature and not suitable for a
factual examination of the
existence of an arbitration
agreement.
3. Setting aside the High Court's finding
on the existence of an arbitration
agreement:
 The Supreme Court
overturned the High Court's
conclusion regarding the
existence of an arbitration
agreement.
 However, it upheld the
appointment of the arbitrator
by the High Court.
 The Supreme Court directed
the arbitrator to determine
the existence of the
arbitration agreement as a
preliminary issue.
 If an arbitration agreement is
 found to exist, the arbitrator
can proceed to consider the
merits of the case.
4. Pro-arbitration approach and
avoidance of lengthy proceedings:
 The Supreme Court adopted a
pro-arbitration stance, aiming
to facilitate the resolution of
disputes through arbitration.
 By directing the arbitrator to
determine the existence of
the arbitration agreement as a
preliminary issue, the court
avoided subjecting the parties
to the entire arbitration
process until the existence of
the agreement is established.
5. Highlighting the need for legislative
clarity:
 The Supreme Court noted an
anomaly resulting from the
parity between Sections 8 and
11 of the Act in terms of the
scope of determination of the
validity or existence of an
arbitration agreement.
 The court suggested that the
legislature should consider
amending the relevant
provisions to ensure
consistency and uniformity in
the appealability of orders
made under Sections 8 and
11.

Sanjiv Prakash v. Seema  Formation of Asian Films  Courts have limited jurisdiction under
Kukreja and Ors., 2021 SCC Laboratories Private Limited by Section 11 of the Arbitration and
Online SC 282 Prem Prakash using personal funds. Conciliation Act, 1996, and cannot
 Distribution of shares among determine the novation of
family members without agreements or discuss complex
consideration. questions that fall within the
 Execution of Memorandum of jurisdiction of arbitral tribunals.
Understanding (MoU) and  Section 11 does not provide a
Shareholder's Agreement (SHA) touchstone for judicial review to
between Prakash family and determine the existence of an
Reuters. arbitration agreement.
 Dispute arises regarding transfer of  Prima facie review by courts under
shareholdings. Section 11 is not final and should not
 Sanjiv Prakash invokes arbitration involve extensive fact-finding.
clause in the MoU.  The case does not fall within the
 Response from Seema Kukreja and category that entirely excludes
 Daya Prakash denying existence of arbitration.
arbitration clause.  Prima facie standard applies during
 Delhi High Court holds that the judicial review under Section 11.
SHA supersedes the MoU and  The plea to refer the matter to
invalidates the arbitration clause. arbitration is not frivolous.
 Appeal made to the Supreme  The Supreme Court upheld the
Court. referral to arbitration in this case.

NHAI v. Sayedabad Tea  Sayedabad Tea Estate was acquired  The NH Act, being a special law,
Company (2019) 9 SCC by the National Highways Authority overrides the general law of
2019 of India for highway construction. arbitration.
 The Respondent filed for  The NH Act provides for a mechanism
arbitration under Section 3G(5) of to determine compensation and
the National Highways Act, 1956 appoint an arbitrator by the Central
(NH Act) for compensation Government, making it a complete
dissatisfaction. code in itself.
 The Central Government did not  The provisions of the 1996 Act apply
respond within the specified subject to the NH Act, giving
period, and the Respondent filed overriding effect to the NH Act in
an application to the Chief Justice compensation disputes.
for appointment of an arbitrator  The power to appoint an arbitrator
under Section 11(1) of the under the 1996 Act is abrogated by
Arbitration and Conciliation Act, the NH Act in relation to
1996 (1996 Act). compensation matters.
 The Central Government appointed  The right of appointment by the
an arbitrator later, while the Central Government does not forfeit
Calcutta High Court (HC) also within 30 days, and if it fails to appoint
appointed an arbitrator under an arbitrator, the party can invoke writ
Section 11 of the 1996 Act. jurisdiction or approach the civil court.
 The Calcutta HC held that the  The application under Section 11(6) of
appointment by the Central the 1996 Act for appointment of an
Government was invalid. arbitrator is not maintainable in this
case.
 Conclusion: The Central Government
is ordered to appoint an arbitrator
under the NH Act, and the orders
passed by the Calcutta HC are
quashed. The appointed arbitrator is
directed to decide the dispute within a
reasonable time.

Durga Welding Works v.  The parties entered into a  Once an application under Section
Chief Engineer, Railway commercial contract with an 11(6) of the Act is filed before the
Electrification, C.A. 54 of arbitration clause. High Court, the Respondents forfeit
2019  The Appellant served a notice their right to appoint an arbitrator,
invoking arbitration and requesting and the High Court has the
the appointment of an arbitrator to jurisdiction to make the
the Respondents. appointment.
 The Respondents failed to appoint  The arbitral tribunal did not have
an arbitrator within the prescribed jurisdiction to entertain the dispute
time limit. between the parties based on the law.
  The Appellant filed a petition under  The Court considered the peculiar
Section 11(6) of the Arbitration and facts of the case, such as the
Conciliation Act in the High Court Appellant's failure to notify the
of Orrisa, without notifying the opposite party in the arbitration
Respondents. petition and their active participation
 The Respondents later replied and in the arbitral proceedings.
proposed a panel of arbitrators,  Despite the Respondents forfeiting
leading to the Appellant filing their right, the High Court's dismissal
another petition seeking restraint of the Section 11(6) application was
against the Respondents from not in error, considering the
appointing an arbitrator. circumstances.
 The Appellant eventually selected
an arbitrator from the
Respondents' proposed list, and an
arbitral tribunal was constituted.
 The Appellant raised objections
regarding the appointment of the
tribunal, but the application was
dismissed.
 The Appellant chose not to
participate further, and an ex-parte
arbitral award was passed against
them.
 The Section 11(6) petition filed by
the Appellant was dismissed later,
with liberty to submit objections
against the ex-parte award.
 The Appellant approached the
Supreme Court against the
dismissal of their Section 11(6)
Application.

A K Builders v. DSIIDC,  The petitioner was awarded a  The petitioner is not precluded from
O.M.P. (T) (COMM.) contract for executing a work raising objections to the eligibility of
12/2022 within a specific time frame. the arbitrator under Section 12(5) of
 The execution of the work was the Arbitration and Conciliation Act,
significantly delayed. 1996.
 Disputes arose between the  A petition under Section 14 of the Act,
parties, and the petitioner invoked based on an arbitrator's ineligibility
the arbitration clause. under Section 12(5) of the Act, is
 The petitioner filed a petition maintainable.
seeking termination of the  The proviso to Section 12(5) applies
mandate of the arbitrator, claiming only if the parties waive the
that the arbitrator was ineligible to applicability of Section 12(5) by an
act. express agreement in writing and
 The petitioner argued that the cannot be implied through conduct.
appointment of the arbitrator was
not by consent but through the
exercise of powers under Clause 25
of the GCC (General Conditions of
Contract).
  The petitioner had requested the
concerned authority to act
according to the said clause.

Government of Meghalaya  The case involved an agreement  The Court held that the writ petition is
v. M/s BSC- C&C JV between the Petitioner and maintainable against the Tribunal's
Respondent for a two-laning order.
project.  The Tribunal's framing of an issue on
 A dispute arose, and the parties a claim already addressed in the
were referred to arbitration. interim award justifies the
 The Arbitrator partially awarded an maintainability of the writ petition.
amount to the Respondent.  When a tribunal frames an issue, it
 The Respondent sought a should be clear and concise, allowing
modification of the award, but the parties to make submissions and
Tribunal rejected the application tender evidence.
and framed an issue regarding the  Granting a remedy under Section 16
interim award. would not be in the interest of justice
 Both parties approached the High since the order rejecting the
Court to challenge the Tribunal's Petitioner's objection is challengeable
decision. only after the final award.
Issues:  The Tribunal's reconsideration of the
1. Whether the writ petition is claim would violate the principle of
maintainable when the Petitioner Functus Officio.
has the right to claim modification  Such reconsideration would create a
of the interim award under conflicting situation if the Petitioner
Sections 16 and 34 of the Act? successfully challenges the award,
2. Whether the Arbitral Tribunal has disadvantaging the Respondent's
inherent jurisdiction to reconsider request for an additional award.
the Respondent's claim already  Reconsideration would be considered
decided in the interim award, functus officio and undesirable.
considering the doctrine of Functus  Therefore, the Court upheld the
Officio? maintainability of a writ petition to
challenge the Tribunal's framing of an
issue on a claim already decided in the
interim award.

Associate Builders v. DDA,  Associate Builder (Appellant)  The Division Bench of the Delhi High
(2015) 3 SCC 49 entered into a construction Court set aside the arbitral award by
contract with Delhi Development re-examining factual findings and
Authority (Respondent) for considering facts not referred to in the
residential houses. arbitration.
 The construction was delayed, and  The Supreme Court rejected the
a dispute arose. Division Bench's judgment and
 The sole arbitrator found the enforced the award.
Respondent liable for the delay.  The Court held that the Division Bench
exceeded its jurisdiction by interfering
with a pure finding of fact made by
the arbitrator.
 The expression "justice" in setting
aside an award on public policy
grounds means that the award shocks
 the conscience of the court.
 The court clarified the grounds for
setting aside an award under the
public policy ground as provided in
Section 34 of the Arbitration Act:
 Contrary to the fundamental
policy of Indian law.
 Contrary to the interests of
India.
 Contrary to justice and
morality.
 Patently illegal.
 The court emphasized that the merits
of an award can be scrutinized on
public policy grounds, but there are
limitations on the extent of re-
evaluation that can be conducted.
 The court provided further guidance
on each ground:
 Fundamental policy of Indian
law: Violations include
disregarding superior court
orders, ignoring binding
judgments, failing to adopt a
judicial approach, failing to
follow natural justice
principles, and reaching a
perverse or irrational
decision.
 Interests of India:
Interpretation is related to
India's relations with foreign
powers.
 Justice and morality: The
award must shock the
conscience of the court and
include situations where the
arbitrator awards more than
claimed or relates to
agreements against prevailing
mores.
 Patent illegality: Includes
contravention of substantive
law, contravention of the
Arbitration Act, and failure to
decide the dispute in
accordance with the contract
terms.

. Ssangyong v NHAI  The dispute arose from a contract 1. Scope of "Public Policy" under Section
[Supreme Court, 8 May between Ssangyong Engineering 34:
2019] and NHAI for the construction of a  The Supreme Court held that the
four-lane bypass on a National broad interpretation of "fundamental
Highway in Madhya Pradesh. policy of Indian law" under the
 The contract provided for previous case law does not apply to
compensation to Ssangyong for Section 34, as amended by the 2015
inflation in prices of components Act.
based on the Wholesale Price  The Court clarified the interpretation
Index (WPI) following 1993-1994 as of different species of public policy:
the base year.  "Fundamental policy of
 NHAI issued a circular revising the Indian law" includes
WPI to follow 2004-2005 as the contravention of a law
base year, which Ssangyong protecting national interest,
disputed. disregarding orders of
 The dispute was referred to a superior courts, and
three-member arbitral tribunal, principles of natural justice.
and the majority upheld NHAI's  "Most basic notions of
revision of the WPI as within the morality or justice" means an
contract terms, while the minority award that shocks the
disagreed. conscience of the court,
 Ssangyong challenged the award as considering prevailing
against public policy before the societal mores.
Delhi High Court, which dismissed  "Patent illegality" refers to
the challenge, leading to an appeal illegality going to the root of
to the Supreme Court. the matter, excluding
erroneous application of law
or re-appreciation of
evidence by an appellate
court.
 Specific grounds for invoking
"patent illegality" include
failure to provide reasons,
taking an impossible view of
contract interpretation,
deciding beyond the scope of
the reference, and arriving at
a perverse finding based on
no evidence or overlooking
vital evidence.
2. Prospective Applicability of the 2015
Act:
 The Supreme Court affirmed that the
2015 Act, amending Section 34, has
prospective applicability.
 The amendments apply to applications
filed on or after October 23, 2015,
even if the arbitration proceedings
commenced before that date.
3. Minority Decisions:
 The Supreme Court set aside the
judgments of the Delhi High Court
and exercised its power under Article
 142 of the Constitution to declare the
minority decision as the enforceable
award between the parties.
 Article 142 grants the Court power to
make orders necessary for doing
"complete justice," but the Court's
plenary power cannot bypass
statutory considerations.
 The Court's approach raises questions
about the efficacy of the remedy
available under Section 34, as it goes
beyond the Act's scheme of not
allowing modification of an award
during a Section 34 application.
 The judgment suggests that if a
majority award is set aside, parties
may have to commence arbitral
proceedings afresh, and suitable
clarifications or amendments to the
Act are necessary to address this
uncertainty.

Patel Engineering Ltd. v.  The dispute arose between Patel  The Supreme Court affirmed the
NEEPCO [Supreme Court. Engineering Ltd. (PEL) and North scope of 'patent illegality' as a ground
22 May 2020] Eastern Electric Power Corporation for setting aside a domestic arbitral
Ltd. (NEEPCO) over a works award under section 34(2A) of the
contract. Act.
 Three separate arbitration awards  The amended section 34 applied to
were issued in favor of PEL. the case as the petitions were filed
 NEEPCO challenged the awards after the Amendment came into force.
under section 34 of the Arbitration  'Patent illegality' allows setting aside
and Conciliation Act, 1996. a domestic award if it is found to be
 The Meghalaya High Court set perverse, irrational, contrary to the
aside the awards, and PEL filed substantive provisions of law,
review petitions before the court, provisions of the Act, or terms of the
which were dismissed. contract.
 PEL challenged the Meghalaya High  The Meghalaya High Court rightly
Court's decision before the relied on the test laid down in
Supreme Court. Associate Builders and Ssangyong
cases to determine the validity of the
award.
 The Supreme Court dismissed the
review petitions filed by PEL, affirming
the Meghalaya High Court's decision
to set aside the arbitral award.

Gammon India Ltd. & Anr v.  A contract was signed between  The Court dismissed the petition
NHAI [Delhi HC, 23 June Gammon-Atlanta JV (Contractor) challenging Award No.2, finding no
2020] and National Highways Authority of patent illegality or perversity in the
India (NHAI) on December 23, 2000 findings of AT 2.
for road construction work.  The Court held that the findings in
  Disputes arose during the project, Award No.3 concerning delays and
and the parties invoked arbitration. liquidated damages did not apply to
 Three separate Arbitral Tribunals the claims made in Award No.2.
were constituted to resolve the  The Court concluded that attempting
disputes: AT 1, AT 2, and AT 3. to conflate the different awards would
 AT 1 rendered Award No.1 on lead to unpredictable consequences
October 05, 2007, addressing and was not advisable.
certain claims raised by both the  The Court emphasized the need to
Contractor and NHAI. avoid multiplicity of arbitral
 AT 2 rendered Award No.2 on proceedings and inconsistent awards,
February 21, 2011, rejecting the providing directions to address this
claims of the Contractor. issue in future cases.
 AT 3 rendered Award No.3 on  Directions given by the Court:
February 20, 2012, allowing the  Parties must disclose the existence
Contractor's claim for recovery of and stage of any other proceedings
liquidated damages imposed by related to the same contract or series
NHAI. of contracts in Section 34 petitions.
 Award No.1 and Award No.3  Section 34 petitions related to the
attained finality through court same contract should be heard
proceedings. together to avoid conflicting findings.
 The present petition challenges  Parties seeking the appointment of
Award No.2. an Arbitrator/Tribunal must disclose
if another Tribunal has already been
constituted for claims arising from
the same contract, and efforts should
be made to refer the matter to the
same Tribunal to avoid conflicting
findings.
 Appointing authorities should avoid
appointing separate
Arbitrators/Tribunals for different
claims arising from the same contract
or series of contracts.

South East Asia Marine  The appellant had a contract for  The Supreme Court's decision
Engineering and drilling operations, which included expands the powers of courts under
Constructions Ltd v Oil a clause accounting for changes in Section 34 of the ACA 1996.
India Limited costs due to changes in law.  It goes against earlier cases that
[Supreme Court, 11 May  A government circular increased discouraged reinterpreting contract
2020 in Civil Appeal No. the price of High Speed Diesel, provisions already decided by the
673 of 2012] leading to higher costs for the arbitral tribunal.
appellant.  Parties may now use this decision to
 The appellant asked for reopen arguments in setting aside
reimbursement, but the proceedings and challenge the
respondent refused, so they went interpretation of contracts by the
to arbitration. tribunal.
 The arbitral tribunal ruled in favor  An incorrect interpretation of a
of the appellant, granting contract can now be a valid reason to
compensation for the increased set aside an arbitral award.
costs.  The decision highlights the importance
 The respondent tried to set aside of interpreting contracts as a whole
 the award, and the High Court and avoiding broad interpretations
initially agreed with them. that go against the contract's purpose.
 Parties should provide sufficient
evidence to support their
interpretation of the contract during
arbitration.

Megha Enterprises And Ors  Megha Enterprises (Petitioner) and  The High Court cannot interfere with
v. Haldiram Snacks Pvt Ltd Coral Products Pvt. Ltd. (Coral) an arbitral award on the grounds of
(Judgment dated March 1). entered into agreements for the the nature of inference drawn by the
sale and purchase of Crude Palm arbitrator from the evidence.
Oil.  The absence of an affidavit under
 Coral merged with Haldiram Snacks Section 65B of the Indian Evidence
Pvt. Ltd. (Respondent) through a Act does not render the evidence
Scheme of Amalgamation. inadmissible in arbitral proceedings.
 Respondent claimed that Petitioner  The court's scope of examination
owed an outstanding amount of under Section 34 of the Arbitration
Rs. 19,03,77,000/- and invoked the and Conciliation Act is limited, and it
Arbitration Clause. cannot reappreciate the evidence on
 The Respondent filed a Statement the ground of patent illegality.
of Claim before the arbitrator, and  A delay in filing a claim does not
the Petitioner filed a Statement of extinguish a debt but only bars the
Defense claiming the claims were remedy.
barred by limitation.  The acknowledgment of debt through
 The arbitrator rejected the electronic communications can fulfill
Petitioner's contentions and the requirements of Section 18 of the
awarded in favor of the Limitation Act.
Respondent.  The court will not interfere with an
 The Petitioner filed an application award on the ground of erroneous
to set aside the award before the conclusion on evidence unless it
High Court. amounts to patent illegality.

LEEPEE Enterprise v. Mehul  Leepee Enterprise (appellant) and  The issue of the arbitrator's
Industrie Mehul Industries (respondent) jurisdiction should be challenged
were parties to an arbitration when the notice under Section 11 of
agreement. the A&C Act is served.
 The Arbitral Tribunal rendered an  Leepee Enterprise failed to raise the
arbitral award in favor of Mehul issue of jurisdiction in response to
Industries. the notice or participate in the
 Leepee Enterprise filed a motion to arbitral proceedings, which
set aside the award under Section prevented setting aside the award
34 of the Arbitration and based on lack of jurisdiction.
Conciliation Act, 1996 (A&C Act).  Section 34 of the A&C Act has a
 The application filed by Leepee narrow scope for setting aside an
Enterprise was dismissed by the arbitral judgment.
Additional District Judge (ADJ).  Leepee Enterprise's claim of the
 Leepee Enterprise appealed to the Arbitrator's lack of jurisdiction due to
Gujarat High Court under Section an invalid arbitration agreement was a
37 of the A&C Act. valid claim under Section 34(2)(a)(i) of
the A&C Act.
  Leepee Enterprise should have raised
the issue of the Arbitrator's
jurisdiction at the earliest opportunity.
 Leepee Enterprise did not object to
the alleged unilateral arbitration
provision or respond to the notice for
the appointment of the Arbitrator.
 Leepee Enterprise's failure to
participate in the arbitration
proceedings and delayed invocation of
jurisdiction spoke against its claim.

MSM Satellite (Singapore)  The Board of Control for Cricket in  The Supreme Court referred to Section
Pvt. Ltd. vs. World Sport India (BCCI) awarded media rights 45 of the Indian Arbitration and
Group (Mauritius) Ltd. for broadcasting a cricketing Conciliation Act, 1996 (Arbitration
Appeal tournament to MSM Satellite Act), which states that the court shall
(Lodging) No. 534 of 2010 (Singapore) Pte Ltd (MSM). refer parties to arbitration upon the
in Notice of Motion No.  After the first year of the request of one of the parties unless
1809 of 2010 in Suit No. tournament, the BCCI terminated the arbitration agreement is "null and
1828 of the agreement with MSM and void, inoperative or incapable of being
2010 entered into a new agreement with performed."
World Sport Group (Mauritius) Ltd  The court held that an arbitration
(World Sports Mauritius). agreement may be considered "null
 World Sports Mauritius entered and void" if there is an attack on the
into a Facilitation Deed with MSM, arbitration agreement itself, separate
relinquishing its media rights and from an attack on the underlying
facilitating MSM to re-acquire contract.
these rights from the BCCI directly.  The allegation of fraudulent
 MSM alleged that World Sports misrepresentation, even if accepted,
Mauritius fraudulently did not impact the validity of the
misrepresented its rights and arbitration agreement, which was
purported to relinquish rights it did separable from the rest of the
not have. contract.
 MSM filed a suit in the Bombay  The court determined that an
High Court against World Sports arbitration agreement does not
Mauritius and the BCCI, seeking a become "inoperative or incapable of
declaration that the Facilitation being performed" solely because
Deed was illegal and null and void. allegations of fraud need to be
 World Sports Mauritius referred inquired into, as such allegations
the disputes to arbitration in should be examined by the court
Singapore under the ICC Rules rather than the arbitrator.
based on the arbitration clause in  The court clarified that the decision in
the Facilitation Deed. Radhakrishna, which held that fraud
 MSM applied to the Bombay High and criminal misappropriation should
Court for an injunction to prevent be submitted to the court instead of
the arbitration proceedings. arbitration, only applied to domestic
arbitrations.

P.E.C. Ltd v. Austbulk  PEC and Austbulk entered into a  The word "shall" in Section 47 of the
Shipping SDN BHD, 2018 Charter Party agreement for Arbitration and Conciliation Act,
(15) SCALE 25 transporting Chickpeas from regarding the production of evidence,
Australia to India, which included should be interpreted as "may" in the
an arbitration clause. context of filing an application for
 PEC arranged a vessel for the enforcement of an award.
carriage of Chickpeas and served  The intention of the legislature, the
notice of readiness to Austbulk at scope of the statute, and the
the discharge port. consequences of the construction
 Austbulk requested a change of the should be considered when
discharge port to Mumbai and interpreting the word "shall" as per
undertook to indemnify PEC for the Act.
any liabilities arising from the  The New York Convention, Article III,
change. aims to facilitate recognition and
 PEC invoked the arbitration clause enforcement of arbitral awards and
when Austbulk failed to make restricts imposing substantial onerous
payment, appointing its own conditions.
arbitrator as the Sole Arbitrator.  The UNCITRAL Model Law, which the
 Austbulk responded by denying its Act is based on, does not require the
liability under the Charter Party presentation of the arbitration
and the arbitration agreement. agreement at the time of
 The Sole Arbitrator proceeded with enforcement.
the reference and passed an award  Liberalization of formal requirements
in favor of PEC. in the 2006 amendment to the Model
 PEC filed a petition for Law removed the necessity of
enforcement of the foreign award presenting a copy of the arbitration
in the Delhi High Court. agreement.
 The interpretation of "shall" as "may"
only applies to the initial stage of filing
the application for enforcement and
not thereafter.
 The Delhi High Court's decision
directing enforcement and execution
of the foreign award was upheld.

National Agricultural  In 1980, the National Agricultural  The Indian Supreme Court (SC)
Cooperative Marketing Co-operative Marketing Federation reviewed the award on its merits and
Federation of India v of India (NAFED) entered into a held that NAFED could not fulfill its
Alimenta SA 2020 contract with Alimenta S.A for the contractual obligations without
SCC OnLine SC 381 supply of Indian HPS groundnut. government permission, and both
 The contract incorporated the parties were aware that non-supply in
terms of the FOSFA 20 contract, quantity would result in cancellation
which stated that if export was of the contract.
prohibited by executive order or  The SC interpreted the public policy
law, the contract would be treated exception to enforcement of foreign
as cancelled. awards narrowly but concluded that
 NAFED could not supply the full enforcing the award would
quantity stipulated in the contract contravene India's public policy
due to export restrictions imposed relating to exports, as permission
by the Indian government. from the Indian government was
 Alimenta initiated arbitration necessary.
proceedings before FOSFA, London,  The SC refused to enforce the award
which resulted in an award in 1989 as it was opposed to the fundamental
 directing NAFED to pay damages. policy of Indian law and basic
 NAFED raised objections to the concepts of justice, based on the
enforcement of the award on the contravention of export policy.
ground that it contravened the
Indian government's export policy
and public policy.

. Centrotrade Minerals &  The provision allowing the appeal

Metal vs. Hindustan Copper of an award from the ICA to the
Ltd, (2006) 11 SCC 245 ICC was deemed void and had no
effect as it was against public
policy.
 Serious procedural defects in
arbitral proceedings could be
considered contrary to public
policy and a ground for refusing
enforcement of an award.
 Indian law does not permit parties
to agree on the appealability of an
award, as it goes against public
policy.
 The court has the power, under
Section 45 of the 1996 Act, to
determine the validity of an
arbitration agreement both for
referring parties to arbitration and
for enforcing an award.

Centrotrade Minerals and  Centrotrade and Hindustan Copper  The issue was whether HCL had an
Metals Inc v. Hindustan Ltd. entered a contract for the sale opportunity to fully present its case
Copper Limited [Supreme of copper concentrate. and could resist enforcement under
Court,  The contract included a two-tier Section 48(1)(b) of the Arbitration and
2 June 2020] arbitration clause: disputes were to Conciliation Act, 1996.
be settled by arbitration in India,  The Supreme Court interpreted the
with the right to appeal to a term "otherwise unable to present his
second arbitration conducted by case" in Section 48(1)(b) and relied on
the ICC. the Vijay Karia v. Prysmian Cavi E
 The arbitration conducted in India Sistemi Srl case.
ruled in favor of Hindustan Copper  The court held that the test under
Ltd. (HCL), but Centrotrade Section 48(1)(b) considers whether a
appealed and obtained an award in party was unable to present its case
its favor from the ICC. due to factors beyond its control,
 HCL resisted the enforcement of normally when the procedure
the ICC award, arguing that multi- adopted was not in accordance with
tiered arbitral clauses were not principles of natural justice.
enforceable in India and that they  If a party fails to take advantage of
were unable to fully present their opportunities given to fully present
 case. their case due to reasons within their
control, they cannot resist
enforcement.
 The Supreme Court noted that the
arbitrator had granted multiple
extensions to HCL for filing
submissions and considered the
submissions filed beyond the
extended deadline.
 Therefore, the court held in favor of
Centrotrade and dismissed HCL's plea
to refuse enforcement of the ICC
award. (reversed above judgement?)

. Reliance Industries Refer above Refer above

Limited and Anr v. Union of
India, (2014) 7 SCC 603
Shin Etsu Chemical co ltd v  Shin-Etsu, a Japanese chemical  The issue before the Supreme Court
M/s Aksh Optifibre Ltd & company, entered into an was whether, under Section 45 of the
Anr Civil Appeal No 5048 of agreement with Aksh Optifibre, an Act and Article II(3) of the New York
2005 Indian company. Convention (NYC), a trial judge is
 The agreement included an required to refer a matter to
arbitration clause stating that any arbitration upon a prima facie showing
disputes would be arbitrated in that an arbitral agreement is not null
Japan under ICC rules. and void, inoperative, or incapable of
 Shin-Etsu terminated the being performed.
agreement, and Aksh filed a lawsuit  The Supreme Court, by a 2-1 majority,
in India seeking an injunction and a held that under Section 45 of the Act
declaration that the contract was and Article II(3) of the NYC, a judge
void, inoperable, and incapable of must refer a matter to arbitration
performance or effect due to upon a prima facie showing that the
unconscionability and undue agreement is not null and void,
influence. inoperative, or incapable of being
 Shin-Etsu invoked Section 8 of performed.
India's 1996 Arbitration and  The Court found that requiring only a
Conciliation Act ("Act"), the prima facie showing better served the
domestic provision, and obtained purpose of the Act and the NYC, which
an order to submit the matter to aimed to enable expeditious
arbitration before the ICC in Tokyo. arbitration without unnecessary
 On appeal, the High Court ruled intervention by judicial authorities.
that the trial court wrongly applied  Although the language of Section 45
Section 8 and remanded the case did not explicitly indicate whether
to the trial court, stating that the finding on the nature of the
Section 45 (the foreign awards arbitral agreement had to be ex facie
counterpart of Section 8) should or prima facie, the Court concluded
have been applied. that a prima facie showing was
 Shin-Etsu appealed to the Supreme sufficient.
Court.