Bharat Aluminium Co. Ltd.vs.Kaiser Aluminium Technical Services, Inc.AIR2005Chh21 Alternate Dispute Resolutoion presentation
ShashankAmarnath,Roll no. 609
Semester VIII, Sec A
* There was an agreement executed between the appellant and the respondent under which the respondent was to supply installed equipment for modernization and up gradation of the production facilities of the appellant at Korba in the State of Chhattisgarh. * The agreement provided for settlement of disputes by arbitration;subsequently certain disputes arose between the parties and were referred to arbitration. * The arbitration was held in England and the arbitral tribunal made two awards in England. The appellant thereafter, filed applications under Section 34 of the Indian Act for setting aside those two awards, in the Court of learned District Judge, Bilaspur. The learned District Judge, Bilaspur held that the applications filed by the appellant under Section 34 of the Indian Act for setting aside the two foreign awards are not tenable and accordingly dismissed the same.
Question before the Court:
* Whether the Court can set aside this foreign award as per section 48 1 (e)? * Whether the Court has the power to apply section 34 of the Arbitration and conciliation Act, to the present matter?
Contention of the parties:
* They argued that the learned District Judge should have decided the issues of fact and law raised by the parties in their respective pleadings, but no such exercise has been undertaken by the learned District Judge in the impugned order. They submitted that since the impugned order is without any reason, it is liable to be set aside. * The appellants cited the case of Bhatia International v. Bulk Trading S.A.;the Supreme Court has laid down the test that if a Court has jurisdiction to entertain an application under Section 9 of the Indian Act it would also have jurisdiction to entertain an application under Section 34 of the Indian Act to set aside an award made by the arbitrator. Therefore the District Judge, Bilaspur had the requisite jurisdiction to entertain the matter. * As per Section 48(1)(e) of the Indian Act that a foreign award can be set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made and hence a foreign award can be set aside or suspended not only by the competent authority of the country in which the award is made but also by a competent authority of the country under the law of which the award was made. Respondent:
* The counsel submitted that Part I of the Indian Arbitration and Conciliation Act applied only to cases where the place of arbitration is India and the award made by the arbitrator is a domestic one as per the section 2(5) of the Indian (A&C) Act. * Section 48(1) (e) provides that a foreign award may be refused to be enforced at the request of the party against whom it is invoked if that party furnishes to the Court proof that the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Yet in the instant case, the award has been made in England and also under the law of arbitration in England and could be set aside or suspended by a competent authority of England and not by a Court in India. * He also relied on the decision of the Supreme Court in Transocean Shipping Agency (P) Ltd. v. Black Sea Shipping, under which it has been held that since no steps have been taken in accordance with the law of Ukraine to challenge the arbitration or the award, the award had become final and binding as per the Ukrainian Law. * The other case cited was Force Shipping Limited v. AshapuraMinechem Limited in which, the High Court of Bombay has held that Part-II of the Indian Act make a special provisions for "enforcement of foreign award" and the provisions...
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