9911796707
TMI Blog2000 (11) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 30-11-2000 - M. JAGANNADHA RAO, J. Sanjeev Sachdeva for the Petitioner . Ms. Jasmine Tarapore and Ms. Meenakshi Singh for the Respondent . JUDGMENT Jagannadha Rao, J. This is an application under section 11(5) of the Arbitration and Conciliation Act, 1996 and relates to a dispute under an agreement between a foreign company and an Indian company. The application is filed by the foreign company against the Indian company seeking reference of the disputes to an arbitrator. The learned Chief Justice of India has nominated me to deal with the application. 2. The claim of the petitioner is that the respondent-company is liable to pay the petitioner a sum of Rs. 96,21,137 with interest at 24 per cent with quarterly rests with effect from 1-5-1999 besides other amounts. 3. The facts set out in the petition by the petitioner as follows : The petitioner-company has its Principal place of business at Kualalumpur, Malaysia. It has an office at New Delhi and it is carrying on business of air-transportation, operation of air-flights in and from India under a bilateral agreement between Malaysia and India. It is stated that its Senior Vice Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely honour the same and contacted the respondent allowing adequate time to the respondent to file a suit (No. 1710 of 1999) for injunction against the bank. The petitioner filed an application under section 8 in that suit but has not taken any other step in the said proceedings. The respondent, it is said, is further declining illegally to refund claims of passengers and directing them to the appellants. This was not tenable. The respondent is also not restoring the commissions received. The petitioner gave registered notice on 25-8-1999 to respondent to concur in the appointment of a retired Judge of the Supreme Court or any other person of equivalent status. The respondent, in his reply dated 16-9-1999, refused to concur. It is in these circumstances that the petitioner is seeking appointment of a retired Judge of the Supreme Court as an arbitrator. These are the broad contentions of the petitioner. 5. The respondent filed a counter contending that the agreements dated 15-9-1986 and 11-1-1989 ceased to exist with effect from 1-5-1999 and hence there is no arbitration clause. The notice dated 25-8-1999 of the petitioner is bad in law. The petitioner has not produced the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnational Ltd. v. Ronak Enterprises Inc. 1998 (5) SCC 724? Point 1 10. On 5-9-2000, the learned counsel for the petitioner took time for filing an application directing the respondent to produce the original agreements which, according to him, were with the respondent. Inasmuch as the petitioner has contended that the respondent is in possession of the original agreements and the respondent has contended that the originals are with the petitioner, question arises whether, as required by section 8, the petitioner has complied with the requirement of the said section or whether secondary evidence could be permitted to be adduced. Question also arises whether Mr. Noor Amiruddin could have signed the petitioner and as to whether he was duly authorised to do so. Yet another question raised is that after termination of the agency, there is no agreement in existence and hence arbitration clause cannot be invoked. 11. The question arises whether such issues raised at the stage of section 11 application or at the stage of section 8 proceedings (corresponding to section 34 of the Old Act, 1940) could be decided by the Court. This Court in some cases felt that they could be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the foreign company made any statement that an Indian Arbitrator was acceptable to it. I am, therefore, of the view that in Dolphin International Ltd. s case ( supra ), this Court did not have to examine in detail the legal position under the Uncitral law on which the Indian Act of 1996 is modelled. 16. I am initially point out that under article 11(5) of the Model Law, all that was required was for the Court to "take into account, as well, the advisability of appointing an Arbitrator of a nationality other than those of the parties". Thus, the Court has to keep this aspect in mind and is not compelled to appoint an Arbitrator not belonging to the nationality of either parties. In fact, in several countries which have adopted the Uncitral Model, 1985, it is clear that the point relating to nationality is only a factor to be kept in mind. I shall refer to the position in some other countries where the Uncitral Model is adopted, in so far as appointment of Arbitrators of a nationality other than that of one of the parties. 17. Article 6(4) of the Uncitral Arbitration Rules, 1976 stated that the appointing authority shall take into account the advisability of appointi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Tribunal of First Instance to reject the choice of an arbitrator who is of the same nationality as one of the parties... The arbitrator, who is a Judge and not a party s representative, cannot be suspected of bias solely on the basis of his nationality, and the requirement of impartiality which determines the choice of the individual... is sufficient to guarantee that the hearings will be conducted fairly" - Transportacion Maritima Mexicana S.A. v. Alsthom . The Court, in that case, considered itself justified in appointing a French Chairman where one of the parties was French, although its opponent, a Mexican Corporation, had asked for the appointment of a neutral individual. (I am, however, dealing with a case where the foreign company has no objection to an Indian Judge being appointed as Arbitrator). The authors (Fouchard etc.) say that "the Court cannot be reproached in law for considering that an Arbitrator s nationality cannot constitute an element of partiality in itself. However, it should have taken such nationality into account as a factual matter, the appearance of neutrality being as important in international arbitration as neutrality itself." In "L ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
