9911796707
TMI Blog2009 (7) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... d November 17, 2003 for carrying work of Survey, Design, Engineering, Procurement, Fabrication, Anticorrosion and Weight coating, Laying of submarine pipeline, Installation of SPM, Load out, Tie- down/Sea-fastening and various other jobs in respect of Mumbai High South Field offshore site. 4. In connection with the said tender issued by ONGC, respondent and petitioner entered into a Business Agreement on 22/01/2004 by which it was agreed that the respondent shall quote as a bidder against the said Tender with the petitioner as a sub-contractor for identified scope of work. The tender was awarded by ONGC to the respondent by notice dated 10/03/2004 for the said fabrication and installation of D-1 Well-Cum-Water Injection Platform at Mumbai High South field Off-shore site on a turnkey basis for a sum of US $ 62,3000,000/- and thereafter an agreement between the respondent and ONGC was entered into. Then, the respondent entered into a subcontract with the petitioner which was signed on 29th of October 2004 and for Fabrication, Load Out and Transportation of Jacket, Piles, Conductors and Deck for D-1 Well-Cum-Water Injection Platform Project of ONGC at Bombay High South field off-shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner submitted that admittedly the arbitration clauses in the contract which govern the rights of the parties in the matter of arbitration are as follows: "12.1 This Subcontract shall be governed by and construed in accordance with the Laws of India. The Courts at Delhi shall have sole jurisdiction. 12.2 The Parties shall endeavour to resolve any dispute or difference amicably through joint negotiation and when necessary by reference to the Chief Executive of EIL and SSE. If any dispute or difference, which cannot be mutually resolved by the parties, the same shall be referred to arbitration in accordance with the provisions contained in Indian Arbitration and Conciliation Act, 1996 which is generally in accordance with UNCITRAL rules. 12.3 The arbitrator(s) shall give reasoned award in respect of each dispute or difference referred to him. The award as aforesaid shall be final, conclusive and binding on all the Parties of this Subcontract in accordance with the Law. 12.4 The venue of the arbitration shall be at New Delhi, India." 9. By relying on para 12.2, learned counsel submitted that the said clause does not indicate about the number of arbitrators to be appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other than one would be three. 17. Learned counsel also submitted that while clause 12.2 stipulates that the arbitration between the parties would be governed under the said Act it also says in clause 12.2 that it shall generally be in accordance with UNCITRAL rules. 18. Learned counsel also submitted that they have a policy that in matters involving high stakes above Rupees ten crores, it should be referred to a Committee on panel of arbitrators. In support of this submission, learned counsel referred to a Standard Contract Clauses which have been disclosed in the counter affidavit filed by the respondent and reliance was placed on the following clause:- "The Arbitration shall be conducted in accordance with the Indian Arbitration and Conciliation Act, 1996. For Contracts costing upto Rs.10 Crores, a Sole Arbitrator should be appointed. For Contracts costing over Rs.10 Crores, a Committee of Arbitrators should be appointed composed of one Arbitrator to be nominated by the Contractor, one to be nominated by the Owner and the third Arbitrator, who will act as a Chairman but not as umpire, to be chosen jointly by the two nominees. The decision of majority of Arbitrators shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same definition of Arbitration Tribunal in Article 2(b). Article 10 of those rules is almost identical with Section 10 of the said Act. Article 2(b) and Article 10 of those rules are extracted herein below:- "Article 2. Definition and rules of interpretation - For the purposes of this Law: (a) xxx xxx (b) "arbitral tribunal" means a sole arbitrator or a panel of arbitrators." "Article 10. Number of arbitrators - (1) The parties are free to determine the number of arbitrators. (2) Failing such determination, the number of arbitrators shall be three." 25. Therefore, the definition of Arbitral Tribunal in Section 2(1)(d) of the said Act is verbatim the same as in Article 2(b). Article 10 of the UNCITRAL model law has close similarity with Section 10 of the said Act. 26. Section 10 deviates from Article 10 of the UNCITRAL law only in the sense that Section 10(1) of the Act provides that despite the freedom given to the parties to determine the number of arbitrators such numbers shall not be even number. But in default of determination of the number, Section 10(2) provides the tribunal is to consist of a sole arbitrator. Therefore, scheme of Section 10(2) of the Act is virtually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in 2005. Therefore, the said policy decision cannot in any way override contract between the parties. 34. The parties autonomy in the arbitration agreement must be given due importance in construing the intention of the parties. In so far as reference to the expression `arbitrator(s)' in clause 12.3 is concerned, the same does not in any way affect the intention of the parties in clause 12.2. 35. It is noted in this connection that parties have freedom to change the number of arbitrator even after the contract has been entered and by mutual consent the parties may amend the contract. If that takes place, in such an eventuality clause 12.3 provides that the arbitrator or arbitrators have to give reasoned award in respect of each dispute and difference referred. Here also the expression which has been used is `him' which also points to a sole arbitrator. 36. It is clearly provided in the said Act that an arbitral tribunal can, if necessary, take the help of experts in terms of Section 27 of the said Act. If the sole arbitrator requires the assistance of an expert it can always take such assistance. 37. Mr. Mukul Rohtagi, learned counsel for the respondent has fairly sub ..... 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