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TMI Blog2014 (5) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... to the arbitration proceedings. Article 33 makes very detailed provision with regard to the resolution of disputes through arbitration. The two Articles do not overlap-one (Article 32) deals with the proper law of the contract, the other (Article 33) deals with ADR, i.e. consultations between the parties; conciliation; reference to a sole expert and ultimately arbitration. Under Article 33, at first efforts should be made by the parties to settle the disputes among themselves (33.1). If these efforts fail, the parties by agreement shall refer the dispute to a sole expert (33.2). The provision with regard to constitution of the arbitral tribunal provides that the arbitral tribunal shall consist of three arbitrators (33.4). This article also provides that each party shall appoint one arbitrator. The arbitrators appointed by the parties shall appoint the third arbitrator. In case, the procedure Under Article 33.4 fails, the aggrieved party can approach the Permanent Court of Arbitration at Hague for appointment of an arbitrator (33.5) - the Permanent Court of Arbitration at Hague can be approached for the appointment of the arbitrator, in case of default by any of the parties. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantive contract is indeed statutorily recognized by Section 16 of the Indian Arbitration Act, 1996 - A bare perusal of the section would show that the arbitration agreement is independent of the other terms of the contract. Further, even if the contract is declared null and void, it would not lead to the foregone conclusion that the arbitration clause in invalid. The conclusions reached by the Delhi High Court that reference to laws of England is only confined to the procedural aspects of the conduct of the arbitration reference, cannot be approved. The petition filed by Respondents Under Section 34 of the Arbitration Act, 1996 in the Delhi High Court is not maintainable - the conclusion of the High Court that, even though the arbitration agreement would be governed by the laws of England and that juridical seat of arbitration would be in London, Part I of the Arbitration Act would still be applicable as the laws governing the substantive contract are Indian Laws, is set aside - appeal allowed. - Civil Appeal No. 5765 of 2014 (Arising out of S.L.P. (C) No. 20041 of 2013) - - - Dated:- 28-5-2014 - S.S. Nijjar And A.K. Sikri, JJ. For the Appellant : Sameer Parekh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare capital of Enron Oil and Gas India Limited (EOGIL, a company formerly part of the Enron group of companies). Upon its acquisition on 15th February, 2003, the name of EOGIL was changed to BG Exploration and Production India Limited. 6. ONGC is a state-owned oil and gas company in India in which the Government of India holds a 74.14 % equity stake. It produces various petroleum products including crude oil, natural gas and LPG. These three companies are together defined as the Contractor (in the PSCs Clause 1.23). 7. The two PSCs provide a detailed procedure for Alternative Dispute Redressal Mechanisms. Articles 32 and 33 of the PSCs are relevant for this purpose. These Articles provide as under: Article 32-Applicable Law and Language of the Contract- 32.1 Subject to the provisions of Article 33.12, this Contract shall be governed and interpreted in accordance with the laws of India. 32.2 Nothing in this Contract shall entitle the Government or the Contractor to exercise the rights, privileges and powers conferred upon it by this Contract in a manner which will contravene the laws of India. 32.3 The English language shall be the language of this Contract and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom amongst persons who are not nationals of the country of any of the Parties to the arbitration proceedings. 33.6 If the two arbitrators appointed by the Parties fail to agree on the appointment of the third arbitrator within thirty (30) days of the appointment of the second arbitrator and if the Parties do not otherwise agree, the Secretary General of the Permanent Court of Arbitration at the Hague may, at the request of either Party and in consultation with both, appoint the third arbitrator who shall not be a national of the country of any Party. 33.7 If any of the arbitrators fails or is unable to act, his successor shall be appointed in the manner set out in this Article as if he was the first appointment. 33.8 The decision of the arbitration tribunal and, in the case of difference among the arbitrators, the decision of the majority, shall be final and binding upon the Parties. 33.9 Arbitration proceedings shall be conducted in accordance with the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) of 1985 except that in the event of any conflict between these rules and the provisions of this Article 33, the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC and Panna Mukta PSC. The Appellant claims that all attempts to resolve the disputes with the Respondent amicably through correspondences and meetings have failed. The disputes, differences and claims arising out of or in connection with the PSCs have been summarized in paragraph 6 of the notice of arbitration. 10. Pursuant to the aforesaid notice, the arbitral tribunal was duly constituted on 29th July, 2011. Under Article 33.12, the venue of arbitration is in London. The parties confirmed the term of appointment of the Arbitral Tribunal on 29th July, 2011, signed by the Chairman on 15th August, 2011. A substantive hearing was held between 21st May, 2012 to 29th May, 2012 in Singapore. Thereafter, on the basis of the amendment made in the PSC as noticed above, by agreement of the parties, the arbitral tribunal made the Final Partial Consent Award on 14th September, 2011. In the aforesaid award, it is recorded as under: 3. Final Partial Award as to Seat 3.1 Upon the agreement of the Parties, each represented by duly authorized representatives and through counsel, the Tribunal hereby finds, orders and awards: a) That without prejudice to the right of the Parties to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of Gas at the wellhead should be calculated by deducting from the sales price at the Delivery Point an amount reflecting all of the costs which are incurred between the wellhead and the Delivery point regardless of whether such costs are classified as capital expenditure or operating expenditure and regardless of whether such costs are recoverable out of Cost Petroleum Under Article 13 of the PSCs. (2) a declaration that, with effect from the date of any partial or final award to the termination of the PSCs, and pursuant to Article 15.6.1 of the PSCs, the Government is required to reimburse any excess royalties paid as a result of the exclusion of post-wellhead capital expenditure from wellhead value calculations made pursuant to the Gazette Notification or pay damages in the same amount for failure to procure an exemption in respect of such excess royalties. (3) a declaration that the Government is liable to reimburse the Claimants pursuant to Article 15.6.1 of the PSCs in respect of any additional royalties imposed and paid by the Claimants since August 2007 as a result of the exclusion of post-wellhead capital expenditure from wellhead value calculations made pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as under: 15.6.1 - The constituents of the (claimants) shall be liable to pay royalties and cess on their participating interest share of Crude Oil and Natural Gas saved and said in accordance with the provisions of this Agreement. The royalty on oil saved and sold will be paid at ₹ 481 per metric ton and cessan oil saved and said will be paid at ₹ 900 per metric ton. Royalty on Gas saved and said will be paid at ten per cent (10%) of the value at wellhead. No cess shall be payable in response of Gas. Royalty and cess shall not exceed the herein above amounts throughout the term of the contract. Royalty and cess shall be payable in Indian Rupees. Any such additional payment shall be made by the (Respondent). 17. Further the relief is claimed Under Article 15.8 of the Tapti PSC which is in identical terms of Article 15.7 in the Panna Mukta PSC, which is as under: 15.8 - If any change in or to any Indian law, rule or Regulation by any authority results in a material change to the economic benefits accruing to any of the parties to this contract after the effective date, the parties shall consult promptly to make necessary revisions and adjustments to the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the Appellants (claimants) with respect to royalties; and leave the parties, if they choose, to seek the necessary relief before the specific forums created under the Oilfields (Regulation and Development) Act, 1948 and the Petroleum and Natural Gas Rules, 1956. 21. The Appellants (the claimants) on the other hand submitted that the issue of arbitrability is governed by the law of the seat of arbitration. The seat of the arbitration being England, the issue of arbitrability is governed by the English Law. It was also submitted that although challenge to the validity of the terms of PSC is governed by Indian Law (Article 32.1 of the PSC), nevertheless it falls within the jurisdiction of the tribunal just as any other substantive dispute. The Appellants relied upon the judgment in Tamil Nadu Electricity Board v. ST-CMS Electric Co. Pvt. Ltd. (2007) 2 All ER (Comm) 701 It was also submitted that the reliefs claimed are founded, only, on contractual rights. Further, whether or not any of those contractual rights are vitiated by Section 23 of the Indian Contract Act, 1872 is a question of substance and accordingly a dispute as to the underlying merits of the claim. The case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 24. The Appellant raised preliminary objection to the maintainability of the arbitration petition primarily on the ground that by choosing English Law to govern their agreement to arbitration and expressly agreeing to London seated arbitration, the parties have excluded the application of Part I of the Arbitration Act, 1996. It was submitted that the High Court of Delhi had no jurisdiction to entertain the objection filed by the Union of India Under Section 34 of the Arbitration Act, 1996. It was emphasized that Courts of England and Wales have exclusive jurisdiction to entertain any challenge to the award. It was pointed out that the PSCs were amended on two occasions. On 24th February, 2004, PSC was sought to be amended to change the seat of arbitration from London to Paris. However, on 14th September, 2011, the parties to the arbitration agreed that the seat of the present arbitration proceedings would be London, England. This agreement is recorded in the Final Partial Consent Award rendered by the arbitral tribunal on 29th July, 2011. As noticed earlier, the final partial consent award provided that the juridical seat or legal place of arbitration for the purpose of arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also concluded that the effect of the interplay of Article 32.1 and Article 32.2 and 33.12 leads to the conclusion that law of England shall operate in relation to matters contained in Article 33 in so far as they are not inconsistent with the law of India. Since the question of arbitrability of the claim is a larger question effecting public policy of State it should be determined by applying laws of India. This would give a meaningful effect to Article 32.2, otherwise it would be rendered otiose. On the basis of the aforesaid plain reading, according to the High Court, the conclusion is that the intention of the parties under the agreement was always to remain subject to Indian laws and not to contravene them. It is further held that Article 33 was confined to conducting the arbitration in accordance with the laws of England and not for all other purposes. Relying on the judgment of this Court in Bhatia International v. Bulk Trading S.A. and Anr. (2002) 4 SCC 105, it has been held that Part I of the Arbitration Act, 1996 would be applicable as there is no clear express or implied intention of the parties to exclude the applicability of the Arbitration Act, 1996. The High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Counsel for the parties. 28. Learned senior counsel for both the parties have made very elaborate oral submissions. These submissions have been summed up and supplemented by the written submissions. Dr. Singhvi appearing for the Appellants submitted that once the English Law is selected as the proper law of arbitration, the applicability of Arbitration Act, 1996 would be ruled out. He submits that the High Court has wrongly intermingled the issues relating to the challenge to the arbitral proceedings or the arbitration award with the merits of the disputes relating to the underlying contract. According to him, even if the law laid down in Bhatia International (supra) is applicable, the arbitral tribunal would apply the provisions contained in the Indian Contract Act. But the English Courts will have jurisdiction over the control and supervision of the arbitration including, challenge to the arbitral award. In support of his submission, Dr. Singhvi relies on Videocon Industries Limited v. Union of India and Anr. (2011) 6 SCC 161 He has also relied on Yograj Infrastructure Limited v. Ssang Yong Engineering and Construction Co. Limited (2011) 9 SCC 735, Dozco India P. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract had to be seen as a whole. Here, the contract is in India, for the work to be done in India over 25 years; secondly, it deals with natural resources, Union of India is a trustee of these resources for the citizens of India. London was designated as the seat of arbitration only to provide certain measure of comfort level to the foreign parties. The contract can not be read in such a way as to exclude the Arbitration Act, 1996. The High Court has correctly concluded that arbitrability had to be decided by taking into consideration Indian Laws, which would include the Indian Arbitration Act and not under the English Arbitration Act, 1996. He emphasized that the present proceedings relate to the interpretation of the contract, which is of national importance to develop the oil rich areas in the Indian Coasts. He points out that under the PSC, the contractor has agreed to be always mindful of the rights and interests of India in the conduct of petroleum operations [Article 7.3(a)]. Mr. Ganguly also relied on Article 32.1 and 32.2 and submitted that Contract is to be governed and interpreted in accordance with laws of India. He points out that there is a negative covenant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dated 16th December, 2010 shall be London, England. The parties are also agreed that hearings of the Notice of Arbitration may take place at Paris, France, Singapore or any other location the Tribunal considers may be convenient. It is also agreed by the parties that the terms and conditions of the arbitration agreement in Article 33 of the PSCs shall remain in full force and effect and be applicable to the arbitration proceedings. 35. The essential dispute between the parties is as to whether Part I of the Arbitration Act, 1996 would be applicable to the arbitration agreement irrespective of the fact that the seat of arbitration is outside India. To find a conclusive answer to the issue as to whether applicability of Part I of the Arbitration Act, 1996 has been excluded, it would be necessary to discover the intention of the parties. Beyond this parties are not agreed on any issue. 36. We are also of the opinion that since the ratio of law laid down in Balco (supra) has been made prospective in operation by the Constitution Bench itself, we are bound by the decision rendered in Bhatia International (supra). Therefore, at the outset, it would be appropriate to reproduce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the procedure Under Article 33.4 fails, the aggrieved party can approach the Permanent Court of Arbitration at Hague for appointment of an arbitrator (33.5). Further, in case the two arbitrators fail to make an appointment of the third arbitrator within 30 days of the appointment of the second arbitrator, again the Secretary General of the Permanent Court of Arbitration at Hague may, at the request of either party appoint the third arbitrator. In the face of this, it is difficult to appreciate the submission of the Respondent-Union of India that the Arbitration Act, 1996 (Part I) would be applicable to the arbitration proceedings. In the event, Union of India intended to ensure that the Arbitration Act, 1996 shall apply to the arbitration proceedings, Article 33.5 should have provided that in default of a party appointing its arbitrator, such arbitrator may, at the request of the first party be appointed by the Chief Justice of India or any person or Institution designated by him. Thus, the Permanent Court of Arbitration at Hague can be approached for the appointment of the arbitrator, in case of default by any of the parties. This, in our opinion, is a strong indication that ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, the conclusion is inescapable that applicability of Arbitration Act, 1996 has been ruled out by a conscious decision and agreement of the parties. Applying the ratio of law as laid down in Bhatia International (supra) it would lead to the conclusion that the Delhi High Court had no jurisdiction to entertain the petition Under Article 34 of the Arbitration Act, 1996. 42. Article 33 provides for ADR-its limited application is to dispute resolution through arbitration as opposed to civil litigation. Therefore, there is no violation of 32.2, as Arbitration Act, 1996, in fact signifies Parliamentary sanction of ADR. In fact, Article 32.3 indicates that obligations under PSC and Arbitration Agreement are separate. Hence, it is provided that English shall be the language of the Contract. Followed by the stipulation that English shall also be the law of arbitral proceedings. Therefore, the conclusion of the High Court that PSC is a composite contract is not in tune with the approved provisions of the PSC. This separateness is further emphasized by Article 32.1 by making the provision subject to the provision of Article 33.12 . Laws of India have been made applicable to the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the provisions of Article 34.12, this contract shall be governed and interpreted in accordance with the laws of India. 33.2. Laws of India not to be contravened.--Subject to Article 17.1 nothing in this contract shall entitle the contractor to exercise the rights, privileges and powers conferred upon it by this contract in a manner which will contravene the laws of India. *** 34.3. Unresolved disputes.--Subject to the provisions of this contract, the parties agree that any matter, unresolved dispute, difference or claim which cannot be agreed or settled amicably within twenty-one (21) days may be submitted to a sole expert (where Article 34.2 applies) or otherwise to an Arbitral Tribunal for final decision as hereinafter provided. *** 34.12. Venue and law of arbitration agreement.--The venue of sole expert, conciliation or arbitration proceedings pursuant to this article, unless the parties otherwise agree, shall be Kuala Lumpur, Malaysia, and shall be conducted in the English language. Insofar as practicable, the parties shall continue to implement the terms of this contract notwithstanding the initiation of arbitral proceedings and any pending claim or disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have the jurisdiction to entertain the petition filed by Union of India Under Section 9 of the Arbitration Act. 47. In the present appeal, this Court is also considering the issue as to whether the petition Under Section 34 of the Arbitration Act, 1996 filed by Union of India in Delhi would be maintainable. The parties have made the necessary amendment in the PSCs to provide that the juridical seat of arbitration shall be London. It is also provided that the arbitration agreement will be governed by laws of England. Therefore, the ratio in Videocon Industries Limited (supra) would be relevant and binding in the present appeal. 48. The aforesaid judgment (Videocon) has been rendered by this Court upon consideration of Venture Global Engineering (supra). Venture Global Engineering and Videocon Industries Ltd. are both judgments delivered by two-Judge Bench. In our opinion, the factual and legal issues involved in the Videocon Industries case are very similar to the controversy involved in the present appeal. The Arbitration Agreement in this appeal is identical to the arbitration agreement in Videocon Industries. In fact, the factual situation in the present appeal is on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingapore International Arbitration Centre (SIAC) Rules. (Clause 27.1). Clause 27.2 provided that the arbitration shall take place in Singapore and be conducted in English language. This Court held that having agreed that the seat of arbitration would be Singapore and that the curial law of the arbitration proceedings would be SIAC Rules, it was no longer open to the Appellant to contend that an application Under Section 11(6) of the Arbitration Act, 1996 would be maintainable. 53. This judgment has specifically taken into consideration the law laid down in Bhatia International (supra) and Venture Global (supra). The same view has been taken by Delhi High Court, Bombay High Court and the Gujarat High Court, in fact this Court in Videocon has specifically approved the observations made by the Gujarat High Court in Hardy Oil (supra). 54. The effect of choice of seat of arbitration was considered by the Court of Appeal in C v. D [2008] 1 Lloyd's Law Rep 239. This judgment has been specifically approved by this Court in Balco (supra) and reiterated in Enercon (supra). In C v. D (supra), the Court of Appeal has observed: Primary Conclusion 16. I shall deal with Mr. Hirst& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpress terms of the Arbitration Act, 1996 and, in particular, the provisions of Section 2 which provide that Part I of the Arbitration Act, 1996 applies where the seat of the arbitration is in England and Wales or Northern Ireland. This immediately establishes a strong connection between the arbitration agreement itself and the law of England. It is for this reason that recent authorities have laid stress upon the locations of the seat of the arbitration as an important factor in determining the proper law of the arbitration agreement. 56. In our opinion, these observations are fully applicable to the facts and circumstances of this case. The conclusion reached by the High Court would lead to the chaotic situation where the parties would be left rushing between India and England for redressal of their grievances. The provisions of Part I of the Arbitration Act 1996 (Indian) are necessarily excluded; being wholly inconsistent with the arbitration agreement which provides that arbitration agreement shall be governed by English law. Thus the remedy of the Respondent to challenge any award rendered in the arbitration proceedings would lie under the relevant provisions contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he juridical seat of arbitration will be in London. On the basis of the aforesaid agreement, necessary amendment has been made in the PSCs. On the basis of the agreement and the consent of the parties, the Arbitral Tribunal has made the Final Partial Consent Award on 14th September, 2011 fixing the juridical seat (or legal place) of arbitration for the purposes of arbitration initiated under the claimants notice of arbitration dated 16th December, 2010 in London, England. To make it even further clear that the award also records that any hearing in the arbitration may take place in Paris, France, Singapore or any other location the tribunal considers convenient. Article 33.12 stipulates that arbitration proceedings shall be conducted in English language. The arbitration agreement contained in Article 33 shall be governed by the laws of England. A combined effect of all these factors would clearly show that the parties have by express agreement excluded the applicability of Part I of the Arbitration Act, 1996 (Indian) to the arbitration proceedings. 59. We are also unable to agree with Mr. Ganguly that Part I of the Arbitration Act, 1996 (Indian) would be applicable in this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PSCs. In view of what we have said earlier, it is not possible to sustain the conclusion reached by the High Court. The arbitration agreement can not be jettisoned on the plea that award, if made against the Government of India, would violate Public Policy of India. Merely because the Arbitral Tribunal has held that claims are arbitral does not mean that the claims have been accepted and an award adverse to India has been given. We, therefore, have no hesitation in rejecting the submission made by Mr. Ganguly. For the same reasons, we are unable to sustain the conclusions reached by the High Court of Delhi. 60. Another good reason for not accepting or approving the conclusions reached by the High Court is that it has failed to distinguish between the law applicable to the proper law of the contract and proper law of the arbitration agreement. The High Court has also failed to notice that by now it is settled, in almost all international jurisdictions, that the agreement to arbitrate is a separate contract distinct from the substantive contract which contains the arbitration agreement. This principle of severability of the arbitration agreement from the substantive contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Contract shall survive the termination of this contract. 63. We are, therefore, unable to uphold the conclusions recorded by the High Court that the applicability of the English Law would be limited in its application only to the conduct of the reference. For the same reasons, we are unable to accept the submissions made by Mr. Ganguly on this issue. 64. In 1982, the Government provided a model Production Sharing Contract to potential bidders, which provided a governing law clause, which read as follows: 32.1 This contract shall be governed and interpreted in accordance with laws of India. This was specifically amended and incorporated in the present PSCs signed on 22nd December, 1994 and provided that the governing law Clause (32.1) would be subject to the provision of Article 33.12 . 65. Considering the aforesaid two provisions, it leaves no manner of doubt that Article 32.2 would have no impact on the designated juridical seat as well as governing law of the arbitration agreement. This would become evident from a perusal of the Final Partial Consent Award dated 14th September, 2011, signed by all the three members of the arbitral tribunal recording that the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be different from the law governing the arbitration agreement. This is precisely the situation in the present case. Article 32.1 specifically provides that the performance of the contractual obligations under the PSC would be governed and interpreted under the laws of India. So far as the alternative dispute redressal agreement i.e. the arbitration agreement is concerned, it would be governed by laws of England. There is no basis on which the Respondents can be heard to say that the applicability of laws of England related only to the conduct of arbitration reference. The law governing the conduct of the arbitration is interchangeably referred to as the curial law or procedural law or the lex fori. The delineation of the three operative laws as given in Naviera Amazonica (supra) has been specifically followed by this Court in the case of Sumitomo (supra). The court also, upon a survey, of a number of decisions rendered by the English Courts and after referring to the views expressed by learned commentators on International Commercial Arbitration concluded that: 16. The law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... call for the application of any one or more of the following laws- 1. The proper law of the contract, i.e., the law governing the contract which creates the substantive rights of the parties, in respect of which the dispute has arisen. 2. The proper law of the arbitration agreement, i.e., the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an award. 3. The curial law, i.e., the law governing the conduct of the individual reference. *** 1. The proper law of the arbitration agreement governs the validity of the arbitration agreement, the question whether a dispute lies within the scope of the arbitration agreement; the validity of the notice of arbitration; the constitution of the tribunal; the question whether an award lies within the jurisdiction of the arbitrator; the formal validity of the award; the question whether the parties have been discharged from any obligation to arbitrate future disputes. 2. The curial law governs the manner in which the reference is to be conducted; the procedural powers and duties of the arbitrator; questions of evidence; the determination of the proper law of the contract. 3. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in respectful agreement with the aforesaid judgment. 71. In view of the aforesaid binding precedent, we are unable to accept the submission of Mr. Ganguly that the Arbitration Act, 1996 has not been excluded by the parties by agreement. For the same reasons, we are unable to approve the conclusions reached by the Delhi High Court that reference to laws of England is only confined to the procedural aspects of the conduct of the arbitration reference. 72. We are also unable to agree with the submission of Mr. Ganguly that since the issues involved herein relate to the public policy of India, Part I of the Arbitration Act, 1996 would be applicable. Applicability of Part I of Arbitration Act, 1996 is not dependent on the nature of challenge to the award. Whether or not the award is challenged on the ground of public policy, it would have to satisfy the pre-condition that the Arbitration Act, 1996 is applicable to the arbitration agreement. In our opinion, the High Court has committed a jurisdictional error in holding that the provisions contained in Article 33.12 is relevant only for the determination of the curial law applicable too the proceedings. We have already noticed ea ..... 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