{"id":163264,"date":"2006-05-09T00:00:00","date_gmt":"2006-05-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/centrotrade-minerals-metal-inc-vs-hindustan-copper-ltd-on-9-may-2006"},"modified":"2018-05-27T00:48:04","modified_gmt":"2018-05-26T19:18:04","slug":"centrotrade-minerals-metal-inc-vs-hindustan-copper-ltd-on-9-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/centrotrade-minerals-metal-inc-vs-hindustan-copper-ltd-on-9-may-2006","title":{"rendered":"Centrotrade Minerals & Metal Inc vs Hindustan Copper Ltd on 9 May, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Centrotrade Minerals & Metal Inc vs Hindustan Copper Ltd on 9 May, 2006<\/div>\n
Author: T Chatterjee<\/div>\n
Bench: S.B. Sinha, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (civil)  2562 of 2006\n\nPETITIONER:\nCENTROTRADE MINERALS & METAL INC.\n\nRESPONDENT:\nHINDUSTAN COPPER LTD.\n\nDATE OF JUDGMENT: 09\/05\/2006\n\nBENCH:\nS.B. SINHA & TARUN CHATTERJEE\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
WITH<\/p>\n
C.A. 2564 of 2005<\/p>\n
TARUN CHATTERJEE, J.\n<\/p>\n
I have had an opportunity to go through the judgment delivered\/proposed by
\nmy learned brother S.B. Sinha, J. I am unable to agree with the conclusion
\nas well as the reasons of my learned brother and in that view of the matter
\nI would prefer to give my own reasons. In my view, the judgment and order
\nof the Division Bench and the learned Single Judge of the Calcutt High
\nCourt should be set aside and the matter be sent back to International
\nChamber of Commerce arbitrator for fresh disposal of the arbitration
\nproceedings in London in the manner indicated hereinafter.\n<\/p>\n
Leave granted in both the SLPs.\n<\/p>\n
These are two appeals which arise from the judgment or order of a Division
\nBench of the Calcutta High Court reversing a judgment or order of a learned
\nSingle Judge of the same High Court whereby and whereunder the Hindustan
\nCopper Limited (in short HCL’) was directed to make payment to Centrotrade
\nMinerals & Metals Inc. (in short “Centrotrade”).\n<\/p>\n
Centrotrade is incorporated in United States of America dealing with sale
\nand purchase of non-precious metals including copper. Whereas HCL is a
\nGovernment of India undertaking and its business includes purchase of
\ncopper concentrate. They entered into an agreement on 16th of January, 1996
\nwhere centrotrade was the seller and the HCL was the purchaser of copper
\nconcentrate. Clause 14 of the agreement provides for arbitration in case
\nany differences or disputes arise between the parties. Clause 14 of the
\nagreement reads as under :\n<\/p>\n
“14. Arbitration –\n<\/p>\n
All disputes and difference whatsoever arising between the parties out of,
\nor relating to the construction meaning and operation or effect of the
\ncontract or the breach thereof shall be settled by arbitration in India
\nthrough the arbitration panel of the Indian Council of Arbitration in
\naccordance with the Rules of arbitration of the Indian Council of
\nArbitration.\n<\/p>\n
\tIf either party is in disagreement with the arbitration result in
\n\tIndia, either party will have the right to appeal to a second
\n\tarbitrator in London, U.K. in accordance with the rules of
\n\tconciliation and arbitration of the International Chamber of
\n\tCommerce in effect on the date hereof and the result of this second
\n\tarbitration will be binding on both the parties. Judgment upon the
\n\taward may be entered in any Court of Jurisdiction.”\n<\/p>\n
The only other relevant clause of the agreement which is required to be
\ntaken note of is Clause 16 which runs as under :\n<\/p>\n
“16. CONSTRUCTION:\n<\/p>\n
The contract is to be constructed and to take effect as a contract made in
\naccordance with the laws of India.”\n<\/p>\n
Disputes arose between the parties to the agreement during December 1998
\nand January 1999 and pursuant to clause 14 of the agreement, disputes were
\nreferred to Indian Council of Arbitration where Centrotrade was the
\nclaimant. The Indian Council of Arbitration appointed an arbitrator before
\nwhom Centrotrade claimed an award for a sum of US$ 383,442.90 (equivalent
\nto Indian Rupees 1,36,73,573.00 calculated at the exchange rate of Rs.
\n35.66 as prevailing on May 10, 1997) in respect of the goods shipped on
\nboard the vessels “M.V. MARITIME MASTER” AND “M.V. LOK PRITI”, and for
\ninterest pendent lite at such rate as Centrotrade was entitled to under the
\nlaw and also for interest on the sum awarded until decree was pronounced in
\nterms of the award. The arbitrator appointed by the Indian Council of
\nArbitration, however, made a `NIL’ award dated 15th June, 1999. Disagreeing
\nwith the award passed by the arbitrator appointed by the Indian Council of
\nArbitration, and relying on the second part of Clause 14 of the agreement,
\nCentrotrade approached the International Chamber of Commerce (in short
\n`ICC’) on 22nd February, 2000. The arbitrator appointed by the ICC passed
\nan award on 29th of September, 2001 in favour of the Centrotrade in the
\nfollowing manner :\n<\/p>\n
“a. HCL do pay Centrotrade the sum of $ 152,112.33, inclusive of interest
\nto the date of this award in respect of the purchase price for the first
\nshipment.\n<\/p>\n
a.\tHCL do pay Centratrade the sum $ 15,815.59, inclusive of interest
\nto the date of this Award in respect of demurrage due on the first
\nshipment.\n<\/p>\n
b.\tHCL do pay centrotrade the sum of $ 284,653.53, inclusive of
\ninterest to the date of this Award in respect of the purchase price on the
\nsecond shipment.\n<\/p>\n
c.\tHCL do pay centrotrade their legal costs in this arbitration in the
\nsum of $ 82,733 and in addition the cost of the international court of
\nArbitration, the arbitrator’s fees and expenses totaling $ 29,000.\n<\/p>\n
d.\tHCL do pay Centrotrade compound interest on the above sums from the
\ndate of this Award at 6% p.a. with quarterly rests until the date of actual
\npayment.”\n<\/p>\n
After the award was passed by the ICC arbitrator, an application was filed
\nby HCL seeking declaration of the award passed by the ICC as void and not
\nenforceable. At the same time, Centrotrade filed an application for
\nenforcement of the ICC Award. These applications were transferred to the
\noriginal side of the Calcutta High Court which were heard and disposed of
\nby the Judgment and order of the learned Single Judge of that Court on 10th
\nMarch 2005. The learned Single Judge held that the ICC Award was
\nenforceable in law and therefore direction was made to HCL to make payment
\nto Centrotrade. While making this direction, it was inter alia held by the
\nlearned Single Judge as under :\n<\/p>\n
(a)\tThe ICC award was a foreign award under Section 44 of the
\nArbitration and Conciliation Act, 1996 (in short `the Act’) as it satisfied
\nall the conditions mentioned thereunder, namely,<\/p>\n
(i)\tThere was commercial relationship between the parties;\n<\/p>\n
(ii)\tThe award was made in U.K. – a Convention country; and<\/p>\n
(iii)\tThe award was made in pursuance of a written agreement between the
\nparties.\n<\/p>\n
(b)\tthe plea of HCL that it was not given proper opportunity to present
\ntheir case before the arbitrator appointed by the ICC was liable to be
\nrejected. In this connection, the learned Judge observed that HCL had full
\nknowledge of the proceedings and proper opportunity to present their case
\nwas duly given to HCL and therefore the plea of HCL that proper opportunity
\nwas not given, was rejected. It was also held that some papers had in fact
\nreached the arbitrator after the stipulated time and the arbitrator also
\nconsidered the submissions of HCL before making the award.\n<\/p>\n
(c)\tUnder the Indian law it was not impermissible to have an appellate
\narbitration forum where the agreement provided for it, following the
\njudgments in the cases of Heeralal Agarwalla & Co. v. Joakim Nahapiet &
\nCo., AIR (1927) Calcutta 647; Fazalally Jivaji Raja v. Khimji Poonji & Co.,
\nAIR (1934) Bombay 476 and M.A. & Sons v. Madras Oil and Seeds Exchange
\nLtd., AIR (1965) Madras 392, and a decision of this Court in Garikapatti
\nVeerava v. N. Subbiah Chaudhury, AIR<\/a> (1957) SC 540.\n<\/p>\n
(d)\tThe award passed by the ICC arbitrator is the relevant `award’
\nunder the Act.\n<\/p>\n
(e)\tThe question of the award of the Indian arbitrator becoming final
\nand binding on the parties did not arise at all.\n<\/p>\n
(f)\tIn view of Second Part of Clause 14 of the Agreement it was only
\nthe ICC award that was binding on the parties.\n<\/p>\n
(g)\tThe ICC Award was not contrary to public policy. Accordingly the
\nclaim of the HCL that Indian award was a deemed decree of the court under
\nSection 36 of the Act and therefore a provision for appellate forum and an
\naward passed by it, are against public policy of India insofar as they
\nundermine powers of Indian Courts under Sections 34, 35, and 36 of the Act,
\nwas rejected.\n<\/p>\n
However, on appeal, a Division Bench of the High Court, in substance, held
\nas under :\n<\/p>\n
(a)\tThe Second part of clause 14 of the contract allowing a second
\narbitration is valid. Relying on the decisions of Heeralal Agarwalla & Co.
\nv. Joakim Nahapiet & Co., (supra) Fazalally Jivaji Raja v. Khimji Poonji &
\nCo., (supra) and M.A. & Sons v. Madras Oil and Seeds Exchange Ltd.,
\n(supra), the Division Bench held<\/p>\n
that an appellate arbitration forum or a second arbitration was not
\nimpermissible under the Indian Law. Therefore, the award by the arbitrator
\nappointed by the ICC who is a second arbitrator is<\/p>\n
valid.\n<\/p>\n
(b)\tThe ICC award was not a `foreign award’ within the meaning of
\nSection 44 of the Act, as according to the Division Bench, mere fulfillment
\nof conditions of section 11 of the Act did not make the award a `foreign
\naward’. This conclusion was arrived at by the Division Bench on the ground
\nthat the conditions under Section 44 are qualified by the expression –
\n`unless the context otherwise requires’. According to it, if one context
\notherwise requires, then an award which fulfills the conditions of section
\n44 becomes a domestic award. According to the Division Bench,<\/p>\n
a contract being governed by Indian laws is one such<\/p>\n
context. Therefore, the Division Bench concluded that since the present
\ncase where the law governing the contract was Indian law, the ICC Award
\nthough made outside India, was not a “foreign award”.\n<\/p>\n
(c)\tOn the interpretation of Clause 14 of the arbitration agreement,
\nthe Division bench held that the second arbitration in London was not in
\nthe nature of an appeal against the award of the Indian Council of
\nArbitration. Therefore, the ICC award cannot overrule the award passed by
\nthe Indian Arbitrator and thus it was not enforceable due to the operation
\nof the Indian award.\n<\/p>\n
On the above observation and findings made by the Division bench the
\njudgment of the learned Single Judge was set aside. Aggrieved thereby,
\nCentrotrade has filed Special Leave Petition against the aforesaid judgment
\nof the Division Bench of the Calcutta High Court and at the same time HCL
\nhas also filed another Special Leave Petition against the same judgment. In
\nboth the Special Leave Petitions notices were issued and they were taken up
\nfor final hearing together for decision.\n<\/p>\n
We have heard Mr. Sarkar learned senior counsel appearing for Centrotrade
\nand Mr. Debabrata Roy Choudhury learned senior counsel for HCL. I have also
\nexamined the entire material on record including the arbitration agreement,
\nthe awards and judgments of the Division Bench as well as the learned
\nSingle Judge. Before us, the following issues were raised by the learned
\ncounsel for the parties for decision in the appeals :\n<\/p>\n
(1) Whether second part of Clause 14 of the agreement<\/p>\n
providing for a two tier arbitration was valid and permissible in India
\nunder the Act ?\n<\/p>\n
(2) If it is valid, on the interpretation of clause 14 of the agreement,
\ncan it be said that the ICC Arbitrator sat in appeal against the award of
\nthe Indian Arbitrator ?\n<\/p>\n
(3) Whether the ICC award is a foreign award or not ?\n<\/p>\n
(4) Whether HCL was given proper opportunity to present its case before the
\nICC arbitrator?\n<\/p>\n
Issue No. 1 – Whether second part of Clause 14 of the agreement providing
\nfor a two tier arbitration was valid permissible in India under the Act?\n<\/p>\n
So far as this issue is concerned, before I go into it, it would be
\nappropriate to state that both the Division Bench and the learned Single
\nJudge held that a two tier agreement was valid and permissible in India
\nunder the Act.\n<\/p>\n
In my view, a two tier arbitration entered into before or after the coming
\ninto force of the Act is valid and permissible in India. A two tier
\narbitration was permissible and valid in India under both, the 1899 Act and
\nthe 1940 Act, is now well settled. In the case of Hiralal Agarwalla v.
\nJokin Nahopier & Co., AIR (1927) Calcutta 647, before coming into force of
\nthe present Act, it was held that the agreement by parties to submit to
\nmore than one arbitration on the same dispute was permissible. Applying the
\nprinciples laid down in the same dispute was permissible. Applying the
\nprinciples laid down in Hiralal’s case (supra), Bombay High Court in
\nFazalally Jivaji Raja v. Khimji Poonji & Co., AIR (1934) Bombay 476,
\nanswered the issue saying that a two tier arbitration is valid and
\npermissible in India. While answering this question, after considering the
\nprovisions of the Indian Arbitration Act, 1899, Bombay High Court observed
\nas follows :\n<\/p>\n
\t“The intention of the parties is to be sole guide for determining
\n\tthe mode of working out the submission and reaching a final
\n\tdecision till the law of arbitration is based upon the principles
\n\tof withdrawing the disputes from the ordinary Courts and enabling
\n\tthe parties to substitute a domestic tribunal. Once a Tribunal
\n\treaches a final decision, as contemplated or agreed upon by the
\n\tparties, the Arbitration Act as it was enforced come to the help to
\n\tthe parties to enforce the same decision.”\n<\/p>\n
This view of the Calcutta High Court and the Bombay High Court was also
\naccepted by the Madras High Court in the case of M.A. & Sons v. Madras Oil
\n& Seeds Exchange Ltd., AIR (1965) Madras 392. I Need not deal with the
\nissue of validity of two-tier arbitration in respect of disputes arising
\nbefore the coming into force of the Act any further.\n<\/p>\n
In my view this position of law has remained the same as I do not find any
\nprohibition or ban being introduced by the Act from entering into an
\nagreement providing for a two-tier arbitration and that at the time of
\nintroduction of the Act, it was well known to the legislature that it was
\nconsistently held and approved by courts of India that two-tier arbitration
\nwas permissible in India.\n<\/p>\n
However, it was submitted by Mr. Rai Choudhary learned senior counsel
\nappearing for HCL that use of the word “only” in Section 34 of the Act
\nwould show the legislative intendment that the domestic award cannot be
\nchallenged in any manner except in the manner provided by Section 34 of the
\nAct. This is not the position in the present case in view of second Part of
\nclause 14 of the agreement. In this case the parties consciously agreed to
\nhave the domestic award followed by the foreign award. In any view of the
\nmatter, the provisions of Section 34 of the Act are not intended to curtail
\nthe powers of the contracting parties to contract in the manner they
\ndesire.\n<\/p>\n
For the reasons aforesaid, I am in agreement with the conclusions of the
\nlearned Single Judge as well as the Division Bench of the Calcutta High
\nCourt that a two tier arbitration agreement, even after coming into force
\nof the present Act, is valid and permissible in India. Before I switch over
\nto the other issues, I may point out that a question arose before us that
\nthis two tier agreement under the instant case was opposed to public
\npolicy.\n<\/p>\n
Coming to the issue of the agreement being against the public policy of
\nIndia, I wish to differ with the findings of my learned brother S.B. Sinha,
\nJ. I agree that it is well settled that any contractual arrangement
\nnegating the statutory provisions is invalid as being opposed to public
\npolicy. My learned brother has held in his judgment, that the contractual
\narrangement entered into by the parties in this case, in particular, second
\npart of clause 14 of the agreement would in all intent and purport make the
\nprovisions of Sections 34 and 36 of the 1996 Act nugatory. I disagree with
\nthis finding of my learned brother. After a careful consideration of the
\n1996 Act, I find nothing in it prohibiting the parties from entering into
\nan agreement providing for a two tier arbitration. According to my learned
\nbrother, the part of the agreement providing for two tier arbitration is
\ninvalid under the 1996 Act and that validity of an award can only be
\nquestioned before a court under Section 34 and before no other forum chosen
\nby the parties. In my view, however, the award that must be considered by
\nthe court, for its enforcement or on the question of validity is the final
\naward that has been passed following the procedure agreed upon by the
\nparties.\n<\/p>\n
As already held, the reasoning adopted in the decisions, as noted herein
\nearlier, in the cases of Heeralal Agarwalla & Co. v. Joakim Nahapiet & Co.,
\nAIR (1927) Calcutta 647, Fazalally Jivaji Raja v. Khimji Poonji & Co., AIR
\n(1934) Bombay 476 and M.A. Sons v. Madras Oil and Seeds Exchange Ltd., AIR
\n(1965) Madras 392, squarely apply to the present Act as well. Just as there
\nwas no express prohibition on the appellate arbitration in 1899 and 1940
\nActs, so there is no express prohibition in the 1996 Act. The relevant
\nsection of 1996 Act is Section 35 which only provides that “subject to this
\npart of arbitral award shall be final and binding on the parties and
\npersons claiming under them respectively.” Similarly, I find that Condition
\nNo. 7 of the First Schedule of the 1940 Act provided that “the award shall
\nbe final and binding on the parties and persons claiming under them
\nrespectively”. In M.A. & Son’s case (supra) the Madras High Court while
\ndealing with this aspect of the matter made the following observations :\n<\/p>\n
“Naturally, these words have to be construed as subject to any right of
\nappeal, which might be provided for either by the contract itself, or by
\nany by-law governing the parties… No doubt, except upon grounds specified
\nin S. 30 of the Act, an award is not liable to be set aside, and is final
\nbetween the parties. But, what is the award that is final between the
\nparties, when the procedure governing the parties itself makes provision
\nfor an initial award on arbitration, and an appeal which may be instituted
\nby either party aggrieved?… As observed by the Supreme Court… the legal
\npursuit of successive remedies will make them all proceedings `connected by
\nan intrinsic unity’ and `to be regarded as one legal proceeding”. In that
\nsense, it is the award by the appellate Tribunal, if an appeal is preferred
\nwhich becomes the final award that governs the parties….”\n<\/p>\n
The reasoning given by the Madras High Court in the aforesaid decision in
\nmy view equally applies to the 1996 Act, since it is based on the meaning
\nto be given to the term “award” in the case of successive arbitration. In
\nview of the discussion made herein earlier, and considering the above
\ndecisions, I am, therefore, of the view that Section 35 is not a bar to
\nappellate arbitration. In my view this section only comes into operation
\nonce the arbitration proceedings as a whole which must include appellate
\narbitrations, if any, have ended.\n<\/p>\n
In my view allowing the appellate arbitrations is fully in consonance with
\nthe objects of the 1966 Act.\n<\/p>\n
Before parting with this aspect of the matter, we may take into
\nconsideration the question whether an arbitration clause that leads to both
\ndomestic and foreign awards on the same dispute, i.e. an arbitration clause
\nproviding for two different modes of arbitration, is valid or not under the
\nAct. In His Lordship’s view even if a two tier agreement is valid under the
\n1996 Act, it cannot be such that one award is governed by Part I of the Act
\nand the award in the second tier governed by Part-II of the 1996 Act, as
\nthe procedure applicable to the arbitration proceedings as well as for
\nenforcement of the awards is different under different parts. In my view,
\nthere is nothing under the 1996 Act prohibiting the parties from entering
\ninto an agreement whereunder the first arbitration proceeding is conducted
\nunder Part I of the 1996 Act and the appeal therefrom is conducted under
\nPart II of the 1996 Act. In fact, earlier, two separate legislations, i.e.
\nthe 1940 and 1961 Act, dealt with domestic awards and foreign awards
\nrespectively. However, the legislature keeping in mind the necessity to
\nhave similarity in administration of domestic awards as well as foreign
\nawards, has consolidated the laws relating to domestic and foreign awards
\nin the 1996 Act, in effect making both the types of awards enforceable
\nunder the same Act. Keeping this in mind, and also that parties’ autonomy
\nis paramount, I am of the view that it is not impermissible under the 1996
\nAct to have one part of the award governed by Part I and the other part by
\nPart II. Further, an appeal is an intrinsic part of the original proceeding
\nand it is the final award that comes out after an appeal is preferred from
\nthe first award, that is relevant for the purpose of 1996 Act. Thus it
\nfollows that nothing in the 1996 Act prohibits the parties from providing a
\ntwo tier arbitration wherein one tier is dealt with under Part I and the
\nother under Part II of the 1996 Act. Such an agreement does not violate the
\nprovisions of Sections 34 and 36 of the 1996 Act and it cannot be said to
\nbe invalid as being opposed to public policy of India. Therefore, in my
\nview, the second part of clause 14 of the agreement and the ICC arbitration
\nin its furtherance, are not invalid as being opposed to public policy of
\nIndia.\n<\/p>\n
It is well recognized as my learned brother S.B. Sinha, J. had pointed out
\nthat party autonomy is a paramount consideration of the 1996 Act subject
\nonly to such safeguards as are necessary in the public interest. Therefore,
\nso long as an agreement between the parties to enter into an appellate
\narbitration does not derogate from the public interest, it is always
\npermitted. The object of Section 35 of the Act as observed in the 176th
\nReport of the Law Commission, is to limit the ambit of court intervention
\nin arbitral awards and this object is not affected by allowing appellate
\narbitrations. In this connection, it may be noted that even in foreign
\njurisdiction such as U.K., the appellate arbitrations are permitted. (See
\nRussel on Arbitration 22nd Edition page 393).\n<\/p>\n
That apart, even two tier arbitrations wherein the original arbitration
\nproceeding is domestic and thus governed by Part I of 1996 Act, and the
\nappellate proceeding is foreign and thus governed by Part II of the Act can
\nbe permitted. The judgment of my learned brother S.B. Sinha, J. that such
\nproceedings are opposed to the public policy of India because the Act
\nprovides different procedures in respect of domestic and foreign awards
\nappears to be based on his views that the final award in such a case would
\nbe “an admixture of domestic and foreign award”, such that “one part of
\narbitration agreement shall be enforceable as a domestic award but the
\nother part would be enforeceable as a foreign award.” But we must keep it
\nin mind that the doctrine of merger equally applies in cases of appellate
\narbitrations, such that on the issuance of appellate award, the original
\naward merges with it and only the appellate award is valid and capable of
\nenforcement. This was also the intention of the parties while incorporating
\nPart II of Clause 14 of the agreement, which clearly says that only the
\naward that would be passed by the ICC arbitrator would be binding on the
\nparties and the judgment upon that award maybe entered in any court of
\njurisdiction. Therefore, I am unable to agree that such two tier
\narbitration proceedings culminate into an admixture of two different types
\nof awards, as there is eventually only one award that subsists.\n<\/p>\n
For the reasons aforesaid, I, therefore, conclude that the second Part of
\nClause 14 of the agreement is valid and permissible in India under the Act.\n<\/p>\n
Issue No. 2 : Whether the ICC Arbitrator sat in appeal against the award of
\nthe Indian arbitrator or not?\n<\/p>\n
In my view, to decide Issue No. 2, it is appropriate for us to read clause
\n14 of the agreement in depth and to find out from the same the intention of
\nthe parties. In order to come to a proper conclusion on this issue, let us
\nagain reproduce Clause 14 of the arbitration agreement.\n<\/p>\n
“14. Arbitration –\n<\/p>\n
All disputes and differences whatsoever arising between the parties out of,
\nor relating to the construction meaning and operation or effect of the
\ncontract or the breach thereof shall be settled by arbitration in India
\nthrough the arbitration panel of the Indian Council of Arbitration in
\nAccordance with the Rules of arbitration of the Indian Council of
\nArbitration. If either party is in disagreement with the arbitration result
\nin India, either party will have the right to appeal to a second arbitrator
\nin London, U.K. in accordance with the rules of conciliation and
\narbitration of the International Chamber of Commerce in effect on the date
\nhereof and the result of this Second arbitration will be binding on both
\nthe parties. Judgment upon the award maybe entered in any Court of
\nJurisdiction.”\n<\/p>\n
It appears that the first part of the arbitration agreement deals with
\narbitration in accordance with the Rules of  Arbitration of the Indian
\nCouncil of Arbitration. This part of clause 14 of the arbitration agreement
\ndoes not say that the results of the arbitration will be binding on both
\nthe parties. Nor it says that the judgment upon the award of the first
\narbitration may be entered in any court of jurisdiction. On the other hand,
\nthe second Part of Clause 14 of the agreement, as quoted above, clearly
\nstates that if a party is in disagreement with the arbitration result in
\nIndia then the aggrieved party would have a right to appeal to a second
\narbitration in London, U.K. The word `appeal’, in my view, in this part of
\nClause 14 of the agreement has significance. If the phrase `in disagreement
\nwith the arbitration result in India’ and the word `appeal’ are read
\ntogether, we may come to inevitable conclusion that the ICC arbitrator
\nwould act as an appellate arbitrator based in London, U.K. Moreover, if the
\nsecond arbitration is not treated as an appeal, then it would be pointless
\nfor a party dissatisfied with a `NIL’ Award in India to refer the matter
\nfor a second arbitration in London, U.K. as the `NIL’ Award would always
\nprevail over the ICC Award. Accordingly, this would defeat the object of
\nthe provision in the second part of clause 14 which clearly states that
\n`the results of this second arbitration will be binding on both the
\nparties’.\n<\/p>\n
That apart it is now well established that original and appellate
\nproceedings are not distinct legal proceedings, but only constitute stages
\nof the same legal proceedings, which are connected by an intrinsic unity.\n<\/p>\n
Further, while passing the ICC Award, the ICC arbitrator in his award dated
\n29th of September, 2001, had observed that the award passed by the Indian
\nArbitrator was wrong. For clarity of factual situation, I refer to
\nparagraph 18 of the award of the International Arbitrator and in my view
\nthe said paragraph needs to be reproduced :\n<\/p>\n
\t“It is clear therefore that the dry weight, determined in
\n\taccordance with clause 6 at the discharge port is the final and
\n\tbinding basis for payment to be made by HCL to Centrotrade. The
\n\tArbitration Award of 15th June 1999 held otherwise, but, in my
\n\tview, this was obviously wrong. In that Award, the arbitrator found
\n\tthat clause 4, and particularly clause 4.4 of the agreement was the
\n\t`dominant clause’ when that clause specifically dealt with the
\n\tquality certificate to be submitted with the shipping documents
\n\twhich would form the basis for acceptance of the shipping documents
\n\tunder the letter of credit. When in the context of the contract as
\n\ta whole, it is plain that this part of the terms relating to
\n\tprovisional payment, made on the basis of load-port quantity and
\n\tquality whereas the final amount due was to be determined by
\n\tcertificates issued at the discharging port in relation to quantity
\n\tand quality. In so far as the first stage arbitrator found that
\n\tthere was no express promise given by HCL to pay Centrotrade in
\n\trespect of Centrotrade’s claim, he appears to have ignored the
\n\tclear terms of the contract. Nor can there be any question of
\n\tapplying any public policy of India “because copper is a valuable
\n\tmaterial for the growth of Industrial development in the developing
\n\teconomy of India”, in order to influence the decision on this
\n\tpoint, whether the claim is framed in contract or for unjust
\n\tenrichment.”\n<\/p>\n
As seen from the above quoted passage, the ICC arbitrator dealt with the
\ncorrectness of the first award and was not acting as a mere second
\narbitrator but rather as an appellate forum.\n<\/p>\n
I have already held, because of the use of the word `appeal’ in the second
\npart of the arbitration clause it can be said that the intention of the
\nparties was that the second arbitration was in the nature of an appeal and
\nthat the second award would take precedence over the first award. It is
\ntherefore amply clear that the intention of the parties to the agreement
\nwas that if the parties are dissatisfied with the first award and if
\napproach was made to the ICC arbitrator, in view of second Part of Clause
\n14 of the agreement, then the first arbitration award would not be binding
\non the parties nor there would be any existence of the same after the ICC
\naward was made.\n<\/p>\n
Thus, it cannot be said that the proceeding before the ICC arbitrator was
\nan independent proceeding nor it could be said that it was merely a second
\narbitration in London, U.K. Therefore, I am unable to agree with the views
\nexpressed by the Division Bench of the Calcutta High Court saying that the
\nICC arbitration was not in the nature of appeal. Accordingly, the findings
\nof the Division Bench of the High Court on this issue are set aside.\n<\/p>\n
Issue No. 3 : Whether the ICC award is a Foreign Award or not?\n<\/p>\n
The next question is whether the ICC award is a foreign award or not. The
\nlearned Single Judge held that it is a foreign award, whereas, the Division
\nBench of the Calcutta High Court held it not to be so and that it was fact
\na domestic award. Section 44 of the Act, deals with “foreign award”. To
\nappreciate whether a particular award is a foreign award or not, it would
\nbe appropriate for us to refer to section 44 which reads as under :\n<\/p>\n
“44. Definition. – In this Chapter, unless the context otherwise requires,
\n“foreign award” means an arbitral award on differences between persons
\narising out of legal relationships, whether contractual or not, considered
\nas commercial under the law in force in India, made on or after the 11th
\nday of October, 1960 –\n<\/p>\n
(a)\tin pursuance of an agreement in writing for arbitration to which
\nthe convention set forth in the First Schedule applies, and<\/p>\n
(b)\tin one of such territories as the Central Government, being
\nsatisfied that reciprocal provisions have been made may, by notification in
\nthe Official Gazette, declare to be territories to which the said
\nConvention applies.”\n<\/p>\n
From a bare perusal of section 44 of the Act, it appears that in order to
\ncome to a conclusion that a particular award is a foreign award, the
\nfollowing conditions have to be satisfied.\n<\/p>\n
(1) The legal relationship between the parties must be commercial.\n<\/p>\n
(2) The award must be made in pursuance of an agreement in writing.\n<\/p>\n
(3) The award must be made in a convention country.\n<\/p>\n
In the present case, it cannot be disputed that the aforesaid three
\nconditions were satisfied, that is to say, there exists a commercial
\nrelationship between the parties, the ICC award was made in pursuance of an
\nagreement in writing between the parties and the award was made in a
\nConvention Country (London, U.K.). In spite of all these conditions having
\nbeen fully satisfied, the Division Bench of the Calcutta High Court
\ndifferent with the views of the learned Single Judge by holding that it was
\na domestic award.\n<\/p>\n
Section 44 of the Act, as quoted herein above, therefore, makes an award
\nforeign, if the above mentioned criteria are fulfilled, `unless the context
\notherwise requires’. The Division Bench, however, laid heavy stress on this
\nphrase to say that, even though the ICC award fulfils conditions under
\nsection 44 of the Act, it cannot be considered to be a “foreign award”.
\nAccording to the Division Bench one of the situations to which the phrase
\n“unless the context otherwise requires” is applicable, is when the law
\ngoverning an arbitration agreement is Indian law. Thereby, saying that if
\nthe law governing the “otherwise foreign award” is Indian, the award
\nbecomes a domestic award. While coming to this decision, the Division Bench
\nrelied on the decisions of this Court in Sumitomo Heavy Industries Limited
\nv. ONGC Ltd.,<\/a> [1998] 1 SCC 305 and National Thermal Power Corporation v.
\nSinger Company,<\/a> [1992] 3 SCC 551. However, the aforesaid two decisions of
\nthis Court were based on section 9(b) of the repealed Foreign Awards
\n(Recognition and Enforcement) Act, 1961. Under the repealed Foreign Awards
\n(Recognition and Enforcement) Act 1961, section 9(b) expressly provided
\nthat its provisions would not be applicable to any award made on an
\narbitration agreement governed by the law of India. However, on repeal of
\nthis 1961 Act, by section 85 of the Act, no corresponding provision to
\nSection 9(b) of the 1961 Act has been made. In other words, the position of
\nlaw under section 9(b) of the Foreign Awards (Recognition and Enforcement)
\nAct, 1961 was deliberately not incorporated in the present Act. Therefore,
\nunder the present Act, an award in pursuance of an arbitration agreement
\ngoverned by Indian Law, if the conditions under Section 44 are satisfied,
\nwill not cease to be a foreign award, merely because the arbitration
\nagreement is governed by the law of India. Accordingly, in my view, the
\naforesaid two decisions of this Court on which strong reliance was placed
\nby the Division Bench of the Calcutta High Court can easily be
\ndistinguished. The Division Bench of the Calcutta High Court also held that
\nsection 48(1)(e) of the Act is one such provision which attracts the first
\npart of section 44 i.e. the phrase “unless the context otherwise requires”.
\nSection 48 (1)(e) reads as under :\n<\/p>\n
“48. Conditions for enforcement of foreign awards.-\n<\/p>\n
(1)\tEnforcement of a foreign award may be refused, at the request of
\nthe party against whom it is invoked, only if that party furnishes to the
\ncourt proof that-\n<\/p>\n
(2)\tThe award has not yet become binding on the parties, or has been
\nset aside or suspended by a competent authority of the country in which, or
\nunder the law of which, that award was made.”\n<\/p>\n
From a bare reading of this Section, it is evident that Section 48 (1)(e)
\ndeals with the grounds for refusal of the enforcement of a Foreign Award.
\nProduction of proof that such an award has been set aside or suspended by a
\ncompetent authority of the country in which, or under the law of which,
\nthat award was made, cannot change a foreign award to a domestic award, but
\nmerely makes it a foreign award which may not be enforced. In Sumitomo
\nHeavy Industries Limited v. ONGC Ltd.,<\/a> [1998] 1 SCC 305 it was however
\nheld, in substance, by this Court, where the contract is governed by Indian
\nlaw and the seat of the arbitration is elsewhere, wherein arbitrability of
\nthe dispute is established, procedural law of the country of seat of
\narbitration governs the conduct of the arbitration proceedings till the
\naward is delivered. Therefore, the phrase “or under the law of which that
\naward was made” used in section 48(1)(e) refers to the law of the country
\nin which the arbitration had its seat rather than the country whose law
\ngoverns the substantive contract. It is true that the contract and the
\nagreement clause is governed by the substantial law of India. It is an
\nadmitted position that the seat of the second arbitration was in U.K.
\nTherefore, relying on Sumitomo Heavy Industries v. ONGC Ltd. (Supra) the<\/a>
\nrelevant country was U.K. under the procedural law of which the award was
\nmade. Thus, section 48 (1)(e) does not by itself contemplate attracting
\nfirst part of section 44 of the Act.\n<\/p>\n
In this connection, the next question is whether the expression “unless the
\ncontext otherwise requires” as used in section 44 of the Act ever comes
\ninto play. This question can be looked into by the following illustration
\nwhere the expression takes relevance.\n<\/p>\n
Let us consider a contract, including the arbitration agreement, governed
\nby Indian Law and under it the seat of arbitration is mentioned as U.K.
\nHowever, before the commencement of the arbitration proceeding, the parties
\nagree that though the physical seat of arbitration is in U.K., for all
\npurposes the seat of arbitration shall be deemed to be India and the
\narbitral  proceedings shall be conducted under the curial law of India. In
\nthis situation, though all the conditions under section 44 were satisfied
\nthe award by the arbitrator cannot be said to be a foreign award. In such a
\nsituation, the expression “unless the context otherwise requires” in
\nsection 44 takes meaning and becomes applicable and relevant.\n<\/p>\n
There is yet another aspect in this matter on the question whether the
\naward that was passed by the ICC arbitrator was a foreign award of not.
\nAccording to the Division Bench, as noted herein earlier, the award passed
\nby the ICC arbitrator was not a foreign award. Sub-section (2) of Section 2
\nof the Act clearly says that Part I of the Act shall apply where the place
\nof arbitration is in India. Sub-Section (7) of Section 2 of the Act says
\nthat an arbitral award made under Part I shall be considered as a domestic
\naward. In view of sub-sections (2) and (7) of Section 2 of the Act read
\nwith Section 44, in respect of which I have already dealt with, there
\ncannot be any doubt that the Division Bench was wrong in its conclusion
\nthat the award passed by the ICC arbitrator was a domestic award. As noted
\nherein earlier, we should also keep in mind that Section 9(b) of the
\nForeign Awards (Recognition and Enforcement) Act, 1961 which provided that
\nit did not apply to an arbitral award made pursuant to an arbitration
\nagreement governed by law of India, has been clearly omitted by Section 51
\nof the 1996 Act. In this connection, reference may be made to a decision of
\nthis Court in Shreejee Traco (I) Pvt. Ltd. v. Paperline International Inc.,
\n[2003] SCC 79.\n<\/p>\n
In this view of the matter and in view of the discussions made herein
\nabove, I am of the firm opinion that the award of the ICC arbitrator was
\nnot a domestic award but a foreign award as rightly held by the learned
\nSingle Judge of the High Court.\n<\/p>\n
Issue No. 4 : Whether HCL was given proper opportunity to present its case
\nbefore the ICC arbitrator ?\n<\/p>\n
Under Section 48 (1) (b) enforcement of a foreign award can be refused if :\n<\/p>\n
“(b) the party against whom the award is invoked was not given proper
\nnotice of the appointment of the arbitrator or of the arbitral proceedings
\nor was otherwise unable to present his case.”\n<\/p>\n
In the case at hand, HCL had the knowledge of appointment of the
\narbitrator. In fact, it had approached the Indian courts to stall the ICC
\narbitral proceedings. On a Special Leave Petition filed by Centrotrade
\nagainst the order of the Rajasthan High Court staying the ICC arbitral
\nproceedings, an order was passed by this Court by which the stay order of
\nthe Rajasthan High Court was vacated on 8th February 2001 and direction was
\ngiven for the ICC proceedings to continue in accordance with law.\n<\/p>\n
It is true, in his award, Mr. Jeremy Lionel Cooke, the ICC arbitrator has
\nnoted that he was appointed by ICC on 7th June 2000 and that HCL refused to
\nparticipate in the arbitral proceedings on the ground that the second
\narbitration clause in the contract was null and void. He directed
\nCentrotrade and HCL to file submissions and supporting evidence through
\norders dated 20th December 2000, 19th January 2001 and 3rd May 2001.
\nHowever, HCL did not comply with these orders. On 30th July 2001, he sent a
\nfax to HCL to find out whether they intended to file their defence. He sent
\na further fax on 9th August 2001 informing them that he was proceeding with
\nthe Award. Then on 11th August 2001, the ICC arbitrator received a reply
\nseeking extension of time. He granted time till 31st August 2001. He
\nreceived another request from HCL’s representatives on 27th August 2001 for
\nfurther extension of time. He granted extension till 12th September 2001.
\nHe received the first set of submissions filed by HCL, without supporting
\nevidence, on 13th September 2001. He considered those submissions and took
\nthem into account while making the award. He has further recorded in his
\naward that :\n<\/p>\n
“I made plain in my orders that no further material provided thereafter
\nwould be taken into account, and I have not done so”.\n<\/p>\n
This last statement indicates that he received further material from HCL,
\nwhich he did not consider while making the award. On the face of it, it
\nseems that HCL was given sufficient opportunity to present its case by the
\narbitrator. However, this question must be looked into from the then
\nexisting situation.\n<\/p>\n
It must be noted that this Court vacated the stay on the proceedings on 8th
\nFebruary 2001. The first direction of the ICC arbitrator to the parties,
\nafter the order of this Court on 8th February 2001, to serve submissions to
\nhim was made on 3rd May 2001, i.e. after a time gap of nearly 3 months. Co-
\noperation of HCL was next requested only on 30th July 2001, i.e. after a
\ntime gap of nearly 2 months. Then the communication on 9th August 2001
\nstated that the arbitrator was proceeding with the award. This time there
\nwas a response from HCL. Upon there requests, a time limit of nearly one
\nmonth ending on 12th September 2001, was given to HCL. The arbitrator
\nreceived first set of submissions filed by HCL on 13th September 2001. Then
\nhe made award 16 days later on 29th September 2001. It seems that between
\n13th and 29th September 2001, he did receive further material from HCL
\nwhich he did not consider while making the award on the ground that they
\nwere received after the time limit granted by him to HCL had lapsed.\n<\/p>\n
It is clear from the above lay out of facts that there have been delays in
\nthe arbitral proceedings right from the beginning when Centrotrade
\napproached in ICC on 22nd February 2000. Most of the delays were due to
\nHCL’s refusal to participate in the proceedings. However, there were some
\ndelays which cannot be related to HCL’s conduct. For instance, the period
\nfrom the 8th February 2001 when the order of this Court was made to 3rd May
\n2001 when the first direction of the arbitrator was made. The whole
\narbitral proceeding was conducted in a manner indicative of lack of
\nurgency. Further, I find merit in the submission of HCL that due to the
\ntotal dislocation of air traffic caused by the terrorist attack of 11th
\nSeptember 2001, the materials sent by HCL to the ICC arbitrator reached
\nlate. Under these circumstances, a delay of few days in serving their
\nsubmissions with supporting evidence, after having accepted to participate
\nin the arbitral proceedings, seems excusable and should have been excused.
\nConsidering the overall picture of the circumstances and the delays,
\nrefusal of the arbitrator to consider material received by him after 13th
\nSeptember 2001 and before 29th September 2001, seems to be based on a
\nfrivolous technicality. The arbitrator ought to have considered all the
\nmaterial received by him before he made the award on 29th September 2001.
\nConsidering the decisions in Hariom Maheshwari v. Vinit Kumar Parikh,
\n[2005] 1 SCC 379 and Minmetal Germany GmbH v. Ferco Steel Ltd., [1999] 1
\nAll ER (Comm.) 315, it is true that where a party is refused an adjournment
\nand where it is not prevented from presenting its case, it cannot,
\nnormally, claim violation of natural justice and denial of a fair hearing.
\nHowever, in the light of the delays, some of which were not attributable to
\nHCL’s conduct, it was only fair to excuse HCL’s lapse in filing the
\nrelevant material on time. Therefore, it can be said that HCL did not get a
\nfair hearing and could not effectively present its case.\n<\/p>\n
For the reasons aforesaid, I am of the view that HCL could not effectively
\npresent its case before the ICC arbitrator and therefore enforcement of the
\nICC award should be refused in view of section 48 (1)(b) of the Act.
\nAccordingly, the judgment of the Division Bench and also the judgment of
\nthe learned Single Judge of the Calcutta High Court must be set aside and
\nthe matter be remitted back to the ICC arbitrator for fresh disposal of the
\narbitral proceedings in accordance with law after giving fair and
\nreasonable opportunity to both the parties to present their cases before
\nhim. In view of the fact that I have set aside the award of the ICC
\narbitrator on the ground that HCL was unable to effectively present its
\ncase before the ICC arbitrator, in compliance with Section 48(1)(b) of the
\nAct, I direct the ICC arbitrator to pass a fresh award within three months
\nfrom the date of commencement of the fresh arbitral proceedings.\n<\/p>\n
Accordingly, both the appeals are disposed of.\n<\/p>\n
There will be no order as to costs.\n<\/p>\n
ORDER<\/p>\n
In view of difference of opinion, the matter is referred to a larger Bench
\nfor consideration. The Registry of this Court shall place the matter before
\nthe Hon’ble the Chief Justice for constitution of a larger Bench.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Centrotrade Minerals & Metal Inc vs Hindustan Copper Ltd on 9 May, 2006 Author: T Chatterjee Bench: S.B. Sinha, Tarun Chatterjee CASE NO.: Appeal (civil) 2562 of 2006 PETITIONER: CENTROTRADE MINERALS & METAL INC. RESPONDENT: HINDUSTAN COPPER LTD. DATE OF JUDGMENT: 09\/05\/2006 BENCH: S.B. SINHA & TARUN CHATTERJEE JUDGMENT: JUDGMENT WITH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-163264","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCentrotrade Minerals & Metal Inc vs Hindustan Copper Ltd on 9 May, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/centrotrade-minerals-metal-inc-vs-hindustan-copper-ltd-on-9-may-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Centrotrade Minerals & Metal Inc vs Hindustan Copper Ltd on 9 May, 2006 - 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