Professional Documents
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PETITIONER
VERSUS
...RESPONDENT
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TABLE OF CONTENTS
S.NO.
PARTICULARS
PAGE NO.
1.
INDEX OF AUTHORITIES
ii - iii
2.
STATEMENT OF FACTS
v - vi
3.
QUESTION OF LAW
vii
4.
SUMMARY OF ARGUMENTS
viii
5.
GROUNDS
1-7
6.
PRAYER
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I N D E X O F AU T H O R I T I E S
A. LIST OF CASES:
1. CDC
Financial
Services
(Mauritius)
Ltd
Communications
2. Marriott International Inc. v. Ansal Hotels Ltd.
3. Keventea Agro Ltd. v. Agram Company Ltd
4. Shanon Realites Ltd. vs. Sant Michael
BPL
B. BOOKS
1. LAW RELATED TO ARBITRATION AND CONCILIATION IN
INDIA DR. N.V. PARANJPEE (5TH EDITION)
C. DICTIONARIES
1. AIYAR, RAMANATHA P.: THE LAW LEXICON, WADHWA & COMPANY, 2ND EDN.
NAGPUR (2002).
2. BLACK, HENRY CAMPBELL: BLACKS LAW DICTIONARY, 6TH EDN., CENTENNIAL ED.
(1891-1991).
3. CURZON. L. B: DICTIONARY OF LAW, PITMAN PUBLISHING, 4TH EDN. NEW DELHI
(1994).
4. GARNER, BRYAN A.: A DICTIONARY OF MODERN LEGAL USAGE, OXFORD
UNIVERSITY PRESS 2ND EDN. OXFORD (1995).
5. GREENBERG, DANIEL AND ALEXANDRA, MILLBROOK: STROUDS JUDICIAL
DICTIONARY OF WORDS & PHRASES, VOL. 2, 6TH EDN., LONDON: SWEET &
MAXWELL (2000).
6. JUSTICE DESAI, M.C.
AND
AIYAR, SUBRAMANYAM:
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E. INTERNET SITES
1. http://www.findlaw.com
2. http://www.indiankanoon.com
3. http://www.indlawinfo.org/
4.
5.
6.
7.
8.
9.
http://www.jstor.org.
http://www.judis.nic.in
http://www.lawsofindia.org
http://www.manupatra.com
http://www.scconline.com
http://www.supremecourtcaselaw.com
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BETWEEN
POSITION OF PARTIES
In the Honble
In
this
High Court
BHATIA INTERNATIONAL
Honble Court
- Appellant
Petitioner
Versus
BULK TRADING S. A. & ANR. -Respondent
Respondent
To
The Hon'ble Chief Justice of India
& His Lordship's Companion Justices
of the Supreme Court of India.
The Petitioner above named
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FA C T S O F T H E C A S E
1. The Appellant entered into a contract with the 1st Respondent on 9th May,
1997.
2. 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).
3. On 23rd October, 1997 the 1st Respondent filed a request for arbitration with
ICC. Parties agreed that the arbitration be held in Paris, France.
4. ICC has appointed a sole arbitrator.
5. 1st Respondent filed an application under Section 9 of the Arbitration and
Conciliation Act, 1996 (hereinafter called the said Act) before the III
Additional District Judge, Indore, M.P. against the Appellant and the 2nd
Respondent.
6. One of the interim reliefs sought was an order of injunction restraining these
parties from alienating, transferring and/or creating third party right,
disposing of, dealing with and/or selling their business assets and properties.
7. 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.
8. This application was dismissed by the III Additional District Judge on 1st
February, 2000.
9. It was held that the Court at Indore had the jurisdiction and the application
was maintainable.
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10.The Appellant filed a Writ Petition before the High Court of Madhya
Pradesh, Indore Bench.
11.The said Writ Petition has been dismissed by the impugned Judgment dated
10th October, 2000.
12.The present Civil Appeal is being filed by the Appellant in 2001.
___________
_____________________
Q U E S T I O N O F L AW
The following questions of the law arise for
consideration by this Hon'ble Court:
ISSUE - I
WHETHER PART I OF THE ARBITRATION AND
CONCILIATION ACT, 1996 ONLY APPLIES TO
THE ARBITRATIONS WHERE THE PLACE OF
ARBITRATION IS IN INDIA?
___________
_____________________
MEMORIAL ON BEHALF OF THE PETITIONER
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S U M M A RY O F A R G U M E N T S
It is humble submitted before the honble court that the present
petition is maintainable for the following reason:
1. That Part I of the said Act only applies to arbitrations where the place of
arbitration is in India. If the place of arbitration is not in India then
Part II of the said Act would apply.
2. That Part II deals with enforcement of foreign awards and makes
elaborate provisions in respect thereof.
3. That under Section 5 of the Act the principle is that a judicial authority
should not interfere except as provided in the act.
4. That the language of the Act is plain, simple and unambiguous thus the
Literal Construction should be taken.
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___________
_____________________
A R G U M E N T S A D VA N C E D
(GROUNDS)
It is humbly submitted that the grounds to allow the Special
Leave Petition are:
A. Because
it
is
apparent
on
the
face
of
entire
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Article 1(2) of UNCITRAL Model Law provides that the law, except
Articles 8, 9, 35 and 36 of the Model Law, would apply only if the
Arbitration takes place in the territory of the State.
Article 9 of the UNCITRAL Model Law permits a party to request a court
for interim measure even if the arbitration is not in the territory of the state.
While framing the Act the Legislature has purposely not adopted Article 1(2)
of the UNCITRAL Model Law. This clearly shows the intention of the
Legislature that they did not want Part I to apply to arbitrations which take
place outside India.
And therefore the Respondents can only approach to the court under
Article 9 of the UNCITRAL Model Law.
3. Further it is submitted that Section 2(f) of the said Act defines an
"international commercial arbitration. According to it, an international
commercial arbitration could take place either in India or outside India. If the
international commercial arbitration takes place out of India then Part I
of the Act would not apply.
4. Further it is submitted that Sub-sections (3), (4) and (5) of Section 2, which
read as follows:
(3) This Part shall not affect any other law for the time being in force by
virtue of which certain disputes may not be submitted to arbitration.
(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall
apply to every arbitration under any other enactment for the time being in
force, as if the arbitration were pursuant to an arbitration agreement and as if
that other enactment were an arbitration agreement except in so far as the
provisions of this Part are inconsistent with that other enactment or with any
rules made thereunder.
(5) Subject to the provisions of sub-section (4), and save in so far as is
otherwise provided by any law for the time being in force or in any agreement
MEMORIAL ON BEHALF OF THE PETITIONER
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in force between India and any other country or countries, this Part shall apply
to all arbitrations and to all proceedings relating thereto."
Sub-sections (3), (4) and (5) of Section 2 would necessarily only apply to
arbitration which take place in India.
Even though the sub-section (4) of Section 2 uses the words "every
arbitration" and sub-section (5) of Section 2 uses the words "all
arbitrations and to all proceedings relating thereto", they must necessarily
refer only to arbitrations which take place in India. Otherwise there would
be a conflict between sub section (2) on one hand and sub sections (4)
and/or (5) on the other.
Thus sub section (4) & (5) should not be read in contravention of sub
section (2) of Section 2 of the Act.
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Thus this also makes it clear that the provisions of Part I of the said Act do
not apply to arbitrations which do not take place in India as Part II has
make elaborate provisions for Foreign Awards.
C. Because under Section 5 of the Act the underlying
principle is that a judicial authority should not interfere
except as provided in the act.
1. It is humbly submitted that the rationale behind this contention is that there
should be minimum interference by Courts.
Two points are noteworthy in it:
i. Section 5 (departing from the Model Law) contains a non-obstante clause.
Section 8 also departs from the Model Law. The corresponding provision
(Art 8 of the Model Law) permits the court to entertain an objection to the
effect that the arbitration agreement is null and void inoperative or
ii.
2. Next it is submitted that by and large the Indian courts have well understood
the spirit and intent behind the principle of non-intervention.
Hence in CDC Financial Services (Mauritius) Ltd v BPL
Communications1 the respondent obtained an anti-arbitration injunction
from the High Court on the ground that the pledge of shares which was
sought to be enforced through arbitration would enable the claimants to take
control of a telecom company which (as it was a foreign company) would be
contrary to Indian law. On appeal, the Supreme Court rejected this
contention, stating that this was a plea on merits and thus within the sole
jurisdiction of the arbitrators. Interestingly, the court not only vacated the
injunction, it also restrained the respondent from moving any further
1 2004 121 CompCas 374 Bom, 2004 56 SCL 665 Bom
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P R AY E R
In view of the above, it is most respectfully and humbly prayed that
this Hon'ble Court may be pleased:
a) To allow the Special Leave petition & struck down the decision
of the honble High Court.
b) To declare that Part I of the Arbitration & Conciliation Act, 1996
would not apply to arbitrations where the place of arbitration is
not in India.
c) To pass such other orders and further orders as may be deemed
necessary on the facts and in the circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IS
DUTY BOUND SHALL EVER PRAY.
Filed by:
Nominee Pareek
(Advocate of the Petitioner)
New Delhi
Drawn on:......
Filed on:......