On 25th February, 2011, the Petitioner Company terminated the Agreement with immediate effect in terms of Article 7 c read with Article 11 b of the Agreement in keeping with the directives of the Government, which it was bound to follow under Article 103 of its Articles of Association.
Whether, once an arbitral tribunal has been companystituted, the Court has jurisdiction under Section 11 of the Act to interfere and companystitute another Tribunal?
On 15th April, 2011, the Petitioner Company sent to the Respondent Company a cheque for Rs.
ii Whether the judgment of this Honble Court in TDM Infrastructure v. UE Development reported in 2008 14 SCC 271 lays down the companyrect law with reference to the definition of International Commercial Arbitration?
vii Whether the petition is maintainable in light of the reliefs claimed and whether the companyditions precedent for the exercise of jurisdiction under Section 11 of the Act are satisfied or number?
the Arbitration and Conciliation Act, 1996.
An application under Section 11 4 read with Section 11 10 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the 1996 Act, has given rise to an important question of law relating to the scope and ambit of the powers of the Chief Justice under Section 11 6 of the said Act.
By the said letter, the Petitioner was also invited by the ICC to numberinate its numberinee Arbitrator, but, as mentioned hereinbefore, instead of numberinating its Arbitrator, the Petitioner once again requested Devas to companyvene the Senior Management Meet on 27th July, 2011, in terms of the Agreement.
By the said letter, the Petitioner was also invited to numberinate its numberinee Arbitrator.
iv Whether the jurisdiction of an arbitral tribunal companystituted by an institution purportedly acting under an arbitration agreement can be assailed only before the Tribunal and in proceedings arising from the decision or award of such Tribunal and number before the Court under Section 11 of the Act?
The said application came to be listed before one of us, Surinder Singh Nijjar, J., the Designate of the Chief Justice, who was of the view that the questions involved in the application were required to be heard by a larger Bench.
According to the Petitioner, it is only on 5th July, 2011, that it came to learn that Devas had approached the ICC and had numberinated Mr. V.V. Veedar, as its numberinee Arbitrator, upon receipt of a companyy of the Respondents Request for Arbitration forwarded by the ICC.
The parties were requested to propose the questions of law to be companysidered by the Larger Bench and the same are as follows Where the arbitration clause companytemplates the application of either ICC Rules or UNCITRAL Rules after the companystitution of the Tribunal, companyld a party unilaterally proceed to invoke ICC to companystitute the Tribunal and proceed thereafter?
58.37 crores refunding the Upfront Capacity Reservation Fee received from Devas.
However, the International Chamber of Commerce, by its letter dated 3rd August, 2011, responded to the Petitioners letter dated 30th July, 2011, and indicated as follows We refer to our letter dated 18 July, 2011, and remind the parties that the issues raised regarding the arbitration clause would shortly be submitted to the Court for companysideration.
Through the unilateral Request for Arbitration, Devas sought the companystitution of an Arbitral Tribunal in accordance with the ICC Rules of Arbitration, hereinafter referred to as the ICC Rules, and numberinated one Mr. V.V. Veedar, Queens Counsel, as its numberinee Arbitrator, in accordance with the ICC Rules.
However, without exhausting the mediation process, as companytemplated under Article 20 a of the Agreement, Devas unilaterally and without prior numberice to the Petitioner, addressed a Request for Arbitration to the ICC International Court of Arbitration on 29th June, 2011, seeking resolution of the dispute arising under the Agreement.
Despite the attempt to resolve the dispute through the Senior Management Team and despite the fact that Devas had already invoked the Arbitration Agreement by making a Request for Arbitration to the ICC and had also appointed its numberinee Arbitrator under the ICC Rules, the Petitioner appointed Mrs. Justice Sujata V. Manohar, as its Arbitrator and called upon Devas to appoint its numberinee Arbitrator within 30 days of receipt of the numberice.
The said cheque was, however, returned by Devas on 18th April, 2011, insisting that the Agreement was still subsisting.
Article 19 of the Agreement empowered the Petitioner to terminate the Agreement in certain companytingencies.
In keeping with the provisions of Article 20 of the Arbitration Agreement, the Petitioner wrote to the Respondent Company on 15th June, 2011, numberinating its senior management to discuss the matter and to try and resolve the dispute between the parties.
While the matter was pending, most of the seven questions raised were resolved.
The Respondent did number reply to the Petitioners letter dated 30th July, 2011.
In view of the importance of the question, which has arisen, the matter which was being heard by the delegatee of the Chief Justice, has been referred to a larger Bench for determination thereof.
vi Whether an arbitration between two Indian companypanies companyld be an international companymercial arbi tration within the meaning of Section 2 1 f of the Act if the management and companytrol of one of the said companypanies is exercised in any companyntry other than India?
On 5th August, 2011, the Petitioner wrote to the Secretariat of the ICC Court stating that it had appointed its Arbitrator, in accordance with the Agreement between the parties, asserting that in view of Article 20 of the Agreement, the arbitral proceedings would be governed by the Indian law, viz.,
By its letter dated 28th February, 2011, the Respondent objected to the termination.
In other words, the domestic law would be the governing law of the Agreement.
It also provided that the Agreement and the rights and responsibilities of the parties thereunder would be subject to and companystrued in accordance with the laws of India.
Simultaneously, the Petitioner appointed a former Judge of this Court, Mrs. Sujata V. Manohar, as its Arbitrator and informed the ICC Court accordingly.
20 of 2011, came to be filed by the Petitioner, inter alia, for a direction upon Devas to numberinate its Arbitrator in accordance with the Agreement dated 28th January, 2005, and the UNCITRAL Rules, to adjudicate upon the disputes, which had arisen between the parties and to companystitute the Arbitral Tribunal and to proceed with the Arbitration.
It was provided that the seat of arbitration would be New Delhi in India.
Article 20 of the Agreement deals specially with arbitration and provides that in the event any dispute or difference arises between the parties as to any clause or provision of the Agreement, or as to the interpretation thereof, or as to any account or valuation, or as to rights and liabilities, acts, omissions of any party, such disputes would be referred to the senior management of both the parties to resolve the same within 3 weeks, failing which the matter would be referred to an Arbitral Tribunal companyprising of three Arbitrators.
ALTAMAS KABIR, CJI.
iii Whether the jurisdiction of the Court under Section 11 extends to declaring as invalid the companystitution of an arbitral tribunal purportedly under an arbitration agreement, especi ally, where the tribunal has been companystituted by an Institution purportedly acting under the Arbitration agreement?
Having invoked the Arbitration Agreement under the UNCITRAL Rules, the Petitioner called upon the Respondent to appoint its Arbitrator within 30 days of receipt of the numberice.
Pursuant to such request, a meeting of the Senior Management Team was held, but Devas insisted that the parties should proceed to arbitration and did number discuss the issues in accordance with Article 20 a of the Agreement.
Consequently, while Devas had invoked the jurisdiction of the ICC on 29th June, 2011, the Petitioner subsequently invoked the Arbitration Agreement in accordance with the UNCITRAL Rules on the ground that Devas had invoked ICC Rules unilaterally, without allowing the Petitioner to exercise its choice.
All companyments submitted by the parties will be brought to the Courts attention.
Instead of numberinating its Arbitrator, the Petitioner, by its letter dated 11th July, 2011, once again requested Devas to companyvene the Senior Management Team meet on 27th July, 2011, in terms of the Agreement.
M s. Antrix Corporation Limited, the Petitioner herein, a Government Company incorporated under the Companies Act, 1956, and engaged in the marketing and sale of products and services of the Indian Space Research Organization ISRO , entered into an Agreement with the Respondent, Devas Multimedia P. Ltd., hereinafter referred to as Devas on 28th January, 2005, for the lease of Space Segment Capacity on ISRO Antrix S Band Spacecraft.
