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Arbitration

Held that unilateral appointment of an arbitrator without the consent of the other party would be non-est in law

Bysclaw

Jul 1, 2023

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Arbitration

Arbitration and Conciliation Act, 1996 — Section 11(6), Section 11(12)(a), Section 2(1)(f), Section 2(2) — Applicability of Part I, including Section 11, to International Commercial Arbitration (ICA) — Dispute arising from a Buyer and Seller Agreement (BSA) where Respondent No. 1 is foreign company (incorporated in Benin) — BSA stipulates arbitration “will take place in Benin” and is governed by laws of Benin — Held: Dispute is an ICA under Section 2(1)(f) — Under Section 2(2), Part I of the Act applies only where the place of arbitration is in India — Designation of Benin as the place of arbitration, coupled with choice of Benin law as governing/curial law, unequivocally establishes Benin as the juridical seat — Indian Courts lack jurisdiction under Section 11 to appoint an arbitrator for a foreign-seated arbitration — Petition seeking appointment of an arbitrator in India is fundamentally misconceived and legally untenable. (Paras 2, 23, 24, 25, 26, 30)

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Arbitration

Arbitration and Conciliation Act, 1996 — Section 11(6) — Appointment of Arbitrator — Power of High Court to Review/Recall – Scope of Judicial Intervention — An order passed under Section 11 appointing an arbitrator is judicial in nature, but the High Court’s review jurisdiction over such an order is highly circumscribed and must be limited to correcting a patent or procedural error; it cannot be exercised to revisit findings of law or re-interpret the arbitration agreement based on a subsequent judgment. (Paras 11.7, 11.12, 11.15)

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Arbitration

Arbitration and Conciliation Act, 1996 — Execution of Arbitral Award — Letters Patent Appeal (LPA) — Maintainability — Code of Civil Procedure (CPC), 1908 — Order 21 Rule 22 — Execution proceedings against legal representatives — The Act is a self-contained code restricting judicial interference — An order passed by a Single Judge in the course of executing an arbitral award is traceable to the Act, not the CPC; therefore, a Letters Patent Appeal against such an order is not maintainable — Where execution is sought against entities/persons arrayed as executors/legal representatives of the deceased judgment debtor, they step into the shoes of the judgment debtor for limited execution purposes and cannot be treated as third parties to the arbitral award for the purpose of challenging maintainability of the appeal under the Act.

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