I

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

BHATIA INTERNATIONAL....................................................................APPELLANT

Versus

BULK TRADING S.A. AND ANOTHER..............................................RESPONDENTS

(2002) 4 SUPREME COURT CASES 105

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TABLE OF CONTENTS

INDEX OF AUTHORITIES............................................................................III

STATEMENT OF FACTS.................................................................................V

STATEMENT OF ISSUES................................................................................VI

SUMMARY OF ARGUMENTS........................................................................VII

BODY OF ARGUMENTS..................................................................................IX

STATEMENT OF JUDGMENT........................................................................XIII

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INDEX OF AUTHORITIES

A. WEBSITES REFERRED
 [Link]
 [Link]
 [Link]

B. STATUTES CITED
 The Arbitration & Reconciliation Act, 1960
 Constitution of India, 1950

C. ADVOCATES APPEARED IN THIS CASE

 APPELLANT – B. SEN, SENIOR ADVOCATE (SUSHIL KR. JAIN, U.
CHOUKSEY, MS RUCHI KOHLI, MS ANJALI DOSHI AND L.P.
SINGH, ADVOCATES WITH HIM)
 RESPONDENT – C. A. SUNDARAM, SENIOR ADVOCATE (MS FARISHTY D.
SETHENA, V. KRISHNAN, TRIPURARI RAY, VISHWAJIT SINGH AND MS
S. AIYAR, ADVOCATES WITH HIM)

D. CASE LAWS CITED

 AIR 2000 DEL 377, MARRIOTT INTERNATIONAL INC. V. ANSAL HOTELS
LTD.
 1998 APO Nos. 490, 499, OF 1997 AND CS No. 592 OF 1997, dated 27.01.1998
(CAL), KEVENTOR AGRO LTD. V. SEAGRAM CO. LTD.
 (1992) 3 SCC 551, NATIONAL THERMAL POWER CORPN. V. SINGER CO.
 (1978) 3 ALL ER 37: (1978) 3 WLR 538: 1980 AC 37 (HL), JOHNSON V.
MORETON
 (1978) 1 ALL ER 948: (1978) 1 WLR 231 (HL), STOCK V. FRANK
JONES (TIPTON) LTD.

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 (1975) 2 SCC 810: AIR 1975 SC 1952, STATE OF HARYANA V.

SAMPURAN SINGH
 (1968) 3 WLR 714: (1969) 1 QB 616: (1968) 2 ALL ER 1059,
COROCROFT LTD. V. PAN AMERICAN AIRWAYS
 AIR 1961 SC 1549: (1961) 2 Cri LJ 720, COLLECTOR OF CUSTOMS
V. DIGVIJAYSINJHI SPG. & WVG. MILLS LTD.
 1924 AC 185: 93 LJPC 81: 130 LT 518 (PC), SHANNON REALITIES LTD. V.
VILLE DE ST MICHEL

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STATEMENT OF FACTS

The appellant entered into a contract with the 1 ST respondent on 9-5-1997. This contract
contained an arbitration clause which provided that arbitration was to be as per the rules of
the International Chamber of Commerce (for short “ICC”). On 23-10-1997 the 1st
respondent filed a request for arbitration with ICC. Parties agreed that the arbitration be
held in Paris, France. ICC had appointed a SOLE ARBITRATOR.

The 1st respondent filed an application under Section 9 of the Arbitration and Conciliation
Act, 1996 (hereinafter called “the said Act”) before the IIIrd Additional District Judge,
Indore, Madhya Pradesh against the appellant and the 2nd respondent. One of the interim
reliefs sought was an order of injunction restraining these parties from alienating,
transferring and /or creating third-party rights, disposing of, dealing with and/or selling
their business assets and properties. The appellant raised the plea of maintainability of such
an application. The appellant raised the plea of maintainability of such an application. The
appellant contended that Part I of the said Act would not apply to arbitrations where the
place of arbitration is not in India. This application was dismissed by the IIIrd Additional
District Judge on 1 – 2 – 2000. It was held that the court at Indore had jurisdiction and the
application was maintainable. The appellant filed a writ petition before the High Court of
Madhya Pradesh, Indore Bench. The said writ petition has been dismissed by the
impugned judgement dated 10 – 10 – 2000.

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STATEMENT OF ISSUES

I. Whether PART I of the Arbitration & Conciliation Act, 1960 would apply to
international arbitrations seated in India?

II. Whether international arbitrations were governed solely by PART II of the act,
which incorporates the UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW (UNCITRAL) MODAL LAW?

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SUMMARY OF ARGUMENTS

Whether PART I of the Arbitration & Conciliation Act, 1960 would apply to
international arbitrations seated in India?

 ON BEHALF OF APPELLANTS,

o Part I of the Act only applies to arbitrations where the place of arbitration
is in India.
o Section 2(2) of the Act provides that Part I shall apply where the place of
arbitration is in India and provisions of Part I do not apply where the place
of arbitration is not in India.
o The purpose of the legislature in not adopting Article 1(2) of the
UNCITRAL Model Law shows that Part I does not apply to arbitrations
outside India.
o The definition of "International Commercial Arbitration" in Section 2(1)(f)
supports their position that Part I does not apply to arbitrations outside
India.
o Sub-sections (3), (4), and (5) of Section 2 would be redundant if Part I
applied to all arbitrations.
o In this case, the arbitration is being held in Paris, which is outside India,
therefore Part I does not apply.

 ON BEHALF OF THE RESPONDENTS,

o A conjoint reading of the provisions of the Act shows that Part I applies
to all arbitrations.

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Whether international arbitrations were governed solely by PART II of the act, which

incorporates the UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE

LAW (UNCITRAL) MODAL LAW?

 ON BEHALF OF THE APPELLANTS,

o Part II of the Act deals with enforcement of foreign awards and provides a
framework for it.
o The absence of provisions similar to Section 9 (interim relief) in Part II
suggests it's not applicable to foreign arbitrations.
o International arbitrations are governed by the rules of the chosen arbitral
institution (e.g., ICC rules provide for interim relief under Article 23).
o Section 9 itself doesn't mention enforcement under Sections 48-58, further
indicating inapplicability to foreign arbitrations.
o Section 5 emphasizes judicial non-interference except as permitted by the
Act.
o The Madhya Pradesh High Court erred by entertaining the application for
interim relief under Section 9.
o High Courts of Delhi, Calcutta, Bombay, Madras and Orissa have similar
judgements supporting this argument.

 ON BEHALF OF THE RESPONDENTS,

o Parties' agreement can't exclude Part I's application to

international commercial arbitrations, including those outside

India.

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BODY OF ARGUMENTS

 Whether PART I of the Arbitration & Conciliation Act, 1960 would apply to

international arbitrations seated in India.

ON BEHALF OF THE APPELLANTS,

Mr. Sen submitted that Part I of the said Act only applies to arbitrations where the place
of arbitration is in India. He submitted that if the place of arbitration is not in India, then
Part II of the said Act would apply. He had relied on sub-section (2) of Section 2 of the
said Act which provides that Part I shall apply where the place of arbitration is in India
and provisions of Part I do not apply where the place of arbitration is not in India.

Mr. Sen pointed out that the said Act is based on the UNCITRAL Model Law on
International Commercial Arbitration. In his contention, he had mentioned Article 1(2)
which talks about the jurisdiction of the state. Further, he had mentioned that the purpose
of the legislature in not adopting Article 1(2), clearly shows the intention of the
legislature that it did not want Part I to apply to arbitrations which take place outside
India.

Mr. Sen in his further arguments mentions the definition of “International Commercial
Arbitration” as mentioned in Section 2(1)(f) of the said Act, which explains that an
international commercial arbitration could take place either in India or outside India, and
if international commercial arbitration takes place out of India, then Part I of the said Act
would not apply.

Mr. Sen fairly draws the attention of this Court to sub-sections (3), (4), and (5) of Section
2, as certain phrases used in sub-section (5) and sub-section (4) which implies that these
sections would only apply to arbitrations which take place in India, otherwise there would
be a conflict between sub-section (2) on one hand and sub-section (4) and/or (5) on the
other. Further, the appellant mentioned that if it is held that Part I applies to all
arbitrations including the arbitrations held outside India, then sub-section (2) of Section 2
would become redundant and/or otiose.

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Mr. Sen submits that in this matter arbitration is being held in Paris, which is out of
India, therefore Part I shall not be applicable to such arbitrations. As Sections 9 and 17
fall in Part I of the said Act, the relevant provisions would become inapplicable and
cannot be used in cases where the place of arbitration is not in India.

ON BEHALF OF THE RESPONDENTS,

Mr. Sundaram had taken the court through the various provisions of the said Act, and had
submitted that a conjoint reading of the provisions shows that Part I is to apply to all
arbitrations.

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 Whether international arbitrations were governed solely by PART II of the act,

which incorporates the UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW (UNCITRAL) MODAL LAW?

ON BEHALF OF THE APPELLANTS,

Mr. Sen submits that Part II deals with enforcement of foreign awards and makes
elaborate provisions in respect thereof, by specifically mentioning that Part II of the
Act doesn’t have any provision similar to Sections 9 and 17, which provides interim
relief to the parties concerned. The intention of the legislature is clear as they have
purposely omitted such provisions, for which the reason submitted was that, where
arbitrations take place outside India they would be governed by the rules of the country
or the body under whose jurisdiction they are being conducted, and the ICC rules of
arbitration, Article 23 provides for interim relief. So, if any remedy is required by the
parties concerned, then it is to be applied under Article 23.

Mr. Sen submits that a plain reading of Section 9 also makes it clear that it would not
apply to arbitrations which take place outside India. He submits that it is very
significant that Section 9 does not talk of enforcement of the award in accordance with
Sections 48, 49, 57 and 58.

Mr. Sen relies on Section 5 of the said Act and submits that the underlying principle is
that a judicial authority should not interfere except as provided in the said Act.

Mr. Sen submits that the Madhya Pradesh High Court did not have jurisdiction to
entertain the application seeking interim relief under Section 9 of the said Act, as the
judgement of the High Court was in contrary to the judgement made by the other High
Courts.

Mr. Sen took the court through the authority of the Division Bench of the Delhi High
Court in the case of Marriott International Inc. v. Ansal Hotels Ltd. Further, he also
mentioned an unreported judgment of a Division Bench of the Calcutta High Court
dated 27 – 1 – 1998 in the case of Keventor Agro Ltd v. Seagram Co. Ltd. These
authorities

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adopt the same reasoning as has been canvassed by Mr. Sen. The Delhi High Court
further notices that this reasoning may lead to a situation where a party may be left
remediless and, therefore, would work hardship on a party.

ON BEHALF OF THE RESPONDENTS,

Mr. Sundaram submitted that the parties by their agreement exclude its provisions Part
I would also apply to all international commercial arbitrations including those that take
place out of India.

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STATEMENT OF JUDGEMENT

The judgment was delivered by a three-judge bench on March 13 th, 2002, the part of
which were –

JUSTICE G.B. PATTANAIK

JUSTICE S.N. PHUKAN

JUSTICE S.N. VAIRAVA

At first blush, the arguments of Mr. Sen appear very attractive. Undoubtedly sub-section

(2) of Section 2 states that Part I is to apply where the place of arbitration is in India.
Undoubtedly, Part II applies to foreign awards. Whilst the submissions of Mr. Sen are
attractive, one has to keep in mind the consequence which would follow if they are
accepted. The result would:

Amount to holding that the legislature has left a lacuna in the said Act. There would be
a lacuna as neither Part I or II would apply to arbitrations held in a country which is not
a signatory to the New York Convention or the Geneva Convention (hereinafter called
“a non – convention country”). It would mean that there is no law, in India, governing
such arbitrations.

Lead to an anomalous situation, inasmuch as Part I would apply to Jammu and

Kashmir in all international commercial arbitrations but Part I would not apply to the
rest of India if the arbitration takes place out of India

Lead to a conflict between sub – section (2) of Section 2 on one hand and sub – sections

(4) and (5) of Section 2 on the other. Further, sub – sections (2) of Section 2 would
also be in conflict with Section 1 which that the Act extends to the whole of India.

Leave a party remediless inasmuch as in international commercial arbitrations which

take place out of India the party would not be able to apply for interim relief in India
even though the properties and assets are in India. Thus, a party may not be able to get
any interim relief at all.

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It is necessary to see whether the language of the said Act is so plain and unambiguous
as to admit of only the interpretation suggested by Mr. Sen. It must be borne in mind
that the very object of the Arbitration and Conciliation Act of 1996, was to establish a
uniform legal framework for the fair and efficient settlement of disputes arising in
international commercial arbitration.

Courts are held as “finishers, refiners and polishers of legislation which comes to them
in a state requiring varying degrees of further processing”, (in Corocraft Ltd v. Pan
American Airways, All ER of p. 1071 D, WLR at p. 732, State of Haryana v.
Sampuran Singh, AIR at p. 1957).

If a language used is capable of bearing more than one construction, in selecting the
true meaning, regard must be had to the consequences, resulting from adopting the
alternative constructions. A construction that results in hardship, serious
inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or
uncertainty and friction in the system which the statute which the statute purports to
regulate has to be rejected and preference should be given to that construction which
avoids such results.

A reading of the provisions shows that the said Act applies to arbitrations which are
held in India between Indian nationals and to international commercial arbitrations
whether held in India or out of India. The definition under Section 2 (1)(f) makes no
distinction between international commercial arbitrations held in India or outside India.

Admittedly, Part II only applies to arbitrations which take place in a convention

country which is fairly admitted by Mr. Sen and he also admitted that there would be
countries which are not signatories either to the New York Convention or to the
Geneva Convention.

Therefore, it is not possible to accept the submission that the said Act makes no
provision for international commercial arbitrations which take place in a non –
convention country.

The Section 1 of the said Act, shows that the entire Act, including Part I, applies to the
whole of India. The fact that all parts apply to the whole of India is clear from the
proviso
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I

which provides that Parts I, III and IV will apply to the state of Jammu and Kashmir
only so far as international commercial arbitrations are concerned. Significantly, the
proviso does not state that Part I would apply to Jammu and Kashmir only if the place
of the international commercial arbitration is in Jammu and Kashmir. Thus, if sub –
section 2 of Section 2 is read in the manner suggested by Mr. Sen there would be a
conflict between Section 1 and Section 2(2). There would be an anomaly inasmuch as
even if an international commercial arbitration takes place outside India, Part I would
continue to apply in Jammu and Kashmir, but it would not apply to the rest of India,
which the legislature could not have so intended.

Section 2(1)(f) of the said Act defines “international commercial arbitration” which
makes no distinction between international commercial arbitrations which take place in
India or internal commercial arbitrations which take place outside India.

Section 2(1)(e) of the said Act defines “court” which would have jurisdiction in respect
of the subject – matter. The definition does not provide that courts in India will not
have jurisdiction if an international commercial arbitration takes place outside India.
As, stated above, an ouster of jurisdiction cannot be implied, whereas it has to be
express.

Sub – section (2) of Section 2 provides that Part I would apply where the place of
arbitration is in India, it does not explicitly provide that Part I shall not apply where the
place of arbitration is not in India. It is also not providing that Part I will “only” apply
where the place of arbitration is in India. Thus, the legislature has not provided that
Part I is not to apply to arbitrations which take place outside India. The use of language
is significant and important. Parties cannot, by agreement, override or exclude the non
– derogable provisions of Part I in such arbitrations. Thus, in respect of such
arbitrations which take place outside India even the non – derogable provisions of Part
I can be excluded. Such an agreement may be express or implied.

If read in this manner then there would be no conflict between Section 1 and Section
2(2) and also Section 2(2) with Section 2(4), 2(5).

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The legislature did not intend to exclude the applicability of Part I to arbitrations,
which take place outside India, is further clear from certain other provisions of the said
Act. Sub – section (7) of Section 2 defines an arbitral award made under Part I shall be
considered as domestic award. An award passed in an arbitration which takes place in
India would be a “domestic award”. There would thus be no need to define an award as
a “domestic award” unless the intention was to cover awards which would otherwise
not be covered by this definition. Strictly speaking, an award passed in an arbitration
which takes place in a non – convention country would not be a “domestic award”.
Thus, the definition indicates that an award made in an international commercial
arbitration held in a non – convention country is also considered to be a “domestic
award”.

Section 5 provides that a judicial authority shall not intervene except where so
provided in Part I. Section 8 of the said Act permits a judicial authority before whom
an action is brought in a matter to refer parties to arbitration. The legislature was aware
that, in international commercial arbitrations, a matter may be taken before a judicial
authority outside India. As Part I was also to apply to international commercial
arbitrations held outside India the term “judicial authority” has been used in Sections 5
and 8.

Section 28 is in Part I, which if not applicable to an arbitration which takes place

outside India there would be no necessity to specify that the rules are to apply “where
the place of arbitration is situated in India”. It has been held in the case of National
Thermal Power Corporation v. Singer Co. that in international commercial arbitrations
parties are at liberty to choose, expressly or by necessary implication, the law and the
procedure to be made applicable. Thus Section 28 does not provide for rules where the
place of arbitration is out of India.

Mr. Sen had also submitted that Part II, which deals with enforcement of foreign
awards doesn’t contain any provision similar to Section 9 or Section 17. The said Act
is one consolidated and integrated Act. General provisions applicable to all arbitrations
will not be repeated in all Chapters or Parts. It must be immediately clarified that the
arbitration not having taken in India, all or some of the provisions of Part I may also
get excluded
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by an express or implied agreement of parties. But if not so excluded the provisions of

Part I will also apply to “foreign awards”. The opening words of Section 45 and 54,
which are in Part II, read “notwithstanding anything contained in Part I”. Such a non
obstante clause had to be put in because the provisions of Part I apply to Part II.

Mr. Sen had also relied upon Article 1(2) of the UNCITRAL Model Law and had
submitted that India has purposely not adopted this article. He had submitted that the
fact that India had not provided that Section 9 would apply to arbitral proceedings
which take place out of India, indicated the intention of the legislature not to apply
Section 9 to such arbitrations. Such submission is not acceptable by the Court.

A domestic award has to be enforced under the provisions of the Civil Procedure Code.
All that Section 36 provides is that an enforcement of a domestic awards is to take
place after the time to make an application to set aside the award has expired or such
an application has been refused. Section 9 does suggest that once an award is made, an
application for interim measure can only be made if the award is a “domestic award” as
defined in Section 2(7) of the said Act. Thus, where the legislature wanted to restrict
the applicability of Section 9 it has done so specifically.

Mr. Sen had also submitted that the term “arbitral award” includes an interim award.
He had submitted that it would be open for the Arbitral Tribunal to pass interim awards
and those interim awards could be enforced in India under Part II. Even in respect of
arbitrations covered by Part II a party would be precluded from getting any interim
relief. In any event, on Mr. Sen’s interpretation, an award passed in the arbitral
proceedings held in a non – convention country could not be enforced. Thus, such a
party would be left completely remediless.

If a party cannot secure, before or during the pendency of the arbitral proceedings, an
interim order in respect of items provided in Sections 9 (i) and (ii), the result may be
that the arbitration proceedings may themselves get frustrated, which could never have
been the intention of the legislature.

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I

To conclude, it is held that the provisions of Part I would apply to all arbitrations and
to all proceedings relating thereto. Where such arbitration is held in India the
provisions of Part I would compulsorily apply and parties are free to deviate only to the
extent permitted by the derogable provisions of Part I. In cases of international
commercial arbitrations held out of India provisions of Part I would apply unless the
parties by agreement, express or implied, exclude all or any of its provisions. In that
case the laws or rules chosen by the parties would prevail. Any provision, in Part I,
which is contrary to or excluded by that law or rules will not apply.

The situation Mr. Sen submits, is that the case that parties had agreed that the
arbitration be as per the Rules of ICC, and further submits that thus by necessary
implication Section 9 would not apply. In our view, in such cases the question would
be whether Section 9 gets excluded by the ICC Rules of Arbitration. Article 23 of the
ICC rules reads as “Conservatory and interim measures”. Thus, Article 23 of the ICC
Rules permits parties to apply to a competent judicial authority for interim and
conservatory measures. Therefore, in such cases an application can be made under
Section of the said Act.

Lastly, it must be stated that the said Act does not appear to be a well – drafted
legislation. Therefore, the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta
cannot be faulted for interpreting it in the manner indicated above. However, in the
view of the court a proper and conjoint reading of all the provisions indicates that Part
I is to apply also to international commercial arbitrations which take place out of India,
unless the parties by agreement, express or implied, exclude it or any of its provisions.
Such an interpretation does not lead to any conflict between any of the provisions of
the said Act. On this interpretation there is no lacunae in the said Act. This
interpretation also does not leave a party remediless. Thus, such an interpretation has to
be preferred to the one adopted by the High Courts of the Orissa, Bombay, Madras,
Delhi and Calcutta. It will therefore have to be held that the contrary view taken by
these High Courts is not good law.

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V

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V

In this view of the matter, we see no reason to interfere with the impugned judgment.
The appeal stands dismissed. There will be no order as to costs throughout.

ARBITRATION & ADR

 BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

BHATIA INTERNATIONAL....................................................................APPELLANT

Versus

BULK TRADING S.A. AND ANOTHER..............................................RESPONDENTS

(2024) X SUPREME COURT CASES XXX

 II

TABLE OF CONTENTS

INDEX OF AUTHORITIES............................................................................III

STATEMENT OF JURISDICTION...............................................................IV

STATEMENT OF FACTS................................................................................V

STATEMENT OF ISSUES...............................................................................VI

SUMMARY OF ARGUMENTS.......................................................................VII

BODY OF ARGUMENTS..................................................................................VIII

PRAYER OF RELIEF........................................................................................X

MEMORANDUM FOR APPELLANT

 III

INDEX OF AUTHORITIES

A. WEBSITES REFERRED
 [Link]
 [Link]
 [Link]

B. STATUTES CITED
 The Arbitration & Reconciliation Act, 1960
 Constitution of India, 1950

MEMORANDUM FOR APPELLANT

 IV

STATEMENT OF JURISDICTION

 The appellant submits to the jurisdiction of this Hon’ble Court under Article 32 of
the Constitution of India which allows for the Supreme Court to exercise the
original jurisdiction.
 The appellant submits to the jurisdiction of this Hon’ble Court under Section 11 of
The Arbitration and Conciliation Act, 1996 which gives the Supreme Court
jurisdiction to entertain applications made by a party subject to international
commercial arbitration.

MEMORANDUM FOR APPELLANT

 V

STATEMENT OF FACTS

The appellant entered into a contract with the 1 ST respondent on 9-5-1997. This contract
contained an arbitration clause which provided that arbitration was to be as per the rules of
the International Chamber of Commerce (for short “ICC”). On 23-10-1997 the 1st
respondent filed a request for arbitration with ICC. Parties agreed that the arbitration be
held in Paris, France. ICC had appointed a SOLE ARBITRATOR.

The 1st respondent filed an application under Section 9 of the Arbitration and Conciliation
Act, 1996 (hereinafter called “the said Act”) before the IIIrd Additional District Judge,
Indore, Madhya Pradesh against the appellant and the 2 nd respondent. One of the interim
reliefs sought was an order of injunction restraining these parties from alienating,
transferring and /or creating third-party rights, disposing of, dealing with and/or selling
their business assets and properties. The appellant raised the plea of maintainability of
such an application. The appellant raised the plea of maintainability of such an application.
The appellant contended that Part I of the said Act would not apply to arbitrations where
the place of arbitration is not in India. This application was dismissed by the IIIrd
Additional District Judge on 1 – 2 – 2000. It was held that the court at Indore had
jurisdiction and the application was maintainable. The appellant filed a writ petition before
the High Court of Madhya Pradesh, Indore Bench. The said writ petition has been
dismissed by the impugned judgement dated 10 – 10 – 2000.

MEMORANDUM FOR APPELLANT

 VI

STATEMENT OF ISSUES

I. Whether any regional court have jurisdiction to entertain an application made

by a company subject to international commercial arbitration?

II. Whether there are justifiable doubts concerning the arbitrator’s impartiality?

III. Whether the arbitral award passed is subject to judicial review?

MEMORANDUM FOR APPELLANT

 VII

SUMMARY OF ARGUMENTS

I. Whether any regional court have jurisdiction to entertain an application made

by a company subject to international commercial arbitration?

The appellant argues that the Madhya Pradesh High Court lacked jurisdiction to
hear Bulk Trading S.A.'s application for interim reliefs under Section 9 of the
Arbitration Act. Section 11 of the Act, as amended in 2015, specifies that
applications related to international commercial arbitration can only be filed
with the Supreme Court. Domestic arbitration applications, on the other hand,
are handled by the High Courts.

II. Whether there are justifiable doubts concerning the arbitrator’s impartiality?

The appellant argues that the sole arbitrator appointed for this international
commercial arbitration should be replaced due to potential bias. Section 12(1)
(a) of the Act, read with Section 13, allows challenging an arbitrator if there are
doubts about their impartiality.

III. Whether the arbitral award passed is subject to judicial review?

The appellant argues that the arbitral award should not be enforced until the
challenge to the arbitrator's appointment is resolved. Section 34 of the Act
allows applications to set aside an arbitral award.

MEMORANDUM FOR APPELLANT

 VII
I

BODY OF ARGUMENTS

Whether any regional court have jurisdiction to entertain an application made by a

company subject to international commercial arbitration?

Advocate on behalf of the appellant, submits that as per the Section 11 under Part I of the
said Act, the application made by a party subject to international commercial arbitration
can only to entertained by the Supreme Court of India, whereas when the party are subject
to a domestic arbitration, the applications made would be entertained by the High Courts
of India, which was explicitly mentioned in the said Act after the Arbitration Amendment
Act of 2015.

Therefore, based on the facts of the case, the application made by Bulk Trading S.A.
seeking interim reliefs under Section 9 of the said Act, in the Madhya Pradesh High
Court, shall be characterized by abuse of authority, exceeded its powers, resulting in a
judgment that was ultra vires and beyond its rightful jurisdiction.

Whether there are justifiable doubts concerning the arbitrator’s impartiality?

Advocate on behalf of the appellant, submits that as per the Section 12 (1) (a) read with
Section 13 under Part I of the said Act, governs this situation, allows challenging an
arbitrator's appointment if there are "circumstances that give rise to justifiable doubts"
about their impartiality.

As a sole arbitrator is appointed for the international commercial arbitration, it seems

to be a close financial relationship with the other party, also having a history of
frequently being appointed by the other party.

Therefore, in such a situation the appointment of arbitrator is not lawful and the
appointed arbitrator shall be immediately terminated from the duties of the designation
and a fresh arbitrator, shall be appointed for a fair trial.

MEMORANDUM FOR APPELLANT

 IX

Whether the arbitral award passed is subject to judicial review?

Advocate on behalf of the appellant, submits that as per the Section 34 under Part I of
the said Act, governs this situation, entertaining an application made for setting aside
of the arbitral award.

When the appointment of arbitrator is challenged based on the biasness of the

arbitrator, any decision made by the arbitrator in due course of its employment is
subject to judicial review, therefore making the arbitral award unenforceable until the
justice is delivered.

MEMORANDUM FOR APPELLANT

 X

MEMORANDUM FOR APPELLANT

 XI

PRAYER OF RELIEF

In light of the issues raised, arguments advanced, the Appellant most humbly prays that
the Supreme Court:

o Hold that the petition filed by the Appellant is maintainable under Article 32 in the
Supreme Court of India.
o Declare the judgment passed by the Madhya Pradesh High Court is in excess of its
jurisdiction, further declaring it void.
o Declare the appointment of arbitrator as unlawful and biased to one party in whose
interest the award is being made.
o Declare the arbitral award as unenforceable.

And pass any other order that it may deem fit in the interest of justice, equity and good

conscience.

And for this act of kindness, the Appellant shall duty bound forever pray.

Sd./-

(Counsel for the Appellant)

DOCUMENT PREPARED BY – LOKESH KHEDIWAL

MEMORANDUM FOR APPELLANT