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Breaking: The Supreme Court today overruled the doctrine laid down in its own year 2002 landmark Bhatia International v Bulk Trading SA & Anr case, which held that Indian courts had exclusive jurisdiction to test the validity of an arbitral award made in India even when the proper law of the contract is the law of another country.

The constitution bench of Chief Justice of India SH Kapadia and justices Jain, Nijjar, Khehar and Desai heard the appeal of Bharat Aluminium Company against Kaiser Aluminium Technical Services – the test case relating to Bhatia International.

The judges held, according to Legally India blogger Courtwitness1, that part 1 of the Arbitration Act does not apply to international arbitration and that the seat of arbitration will determine jurisdiction of the court.

Senior advocate Gopal Subramanium who was acting for Bharat Aluminium had contended the opposite earlier this year. He argued that the seat of arbitration was not the basis on which the jurisdiction of the courts had been defined under the Indian Arbitration Act.

The correct approach to jurisdiction under the Indian Act drew from the principle of party autonomy, the significance of choice of law, English law and from the travaux préparatoires to the UNCITRAL Model Law on International Commercial Arbitration.

More than 30 counsel including 10 senior advocates had appeared in the various civil appeals and special leave petitions (SLPs) associated with the Supreme Court hearings that started around 10 January. Former Amarchand Mangaldas equity partner Ciccu Mukhopadhaya, who was designated senior counsel in December 2011, was also appearing for the respondents.

Download and read the judgement here

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1
 
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Recommend! +0 Objection! -0 Anon 2012-09-06 11:27
Thanks. Please post the order once it is available.
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2
 
Recommend! +7 Objection! -0 yes 2012-09-06 11:28  interesting
Bhatia International was really one of the stupidiest judgments waiting to be overruled.

it was really weird when because of bhatia international, some LCIA awards were being challenged in India.

some sanity to the sanctity of intl arbitration now!
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2.1
 
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Recommend! +0 Objection! -0 However 2012-09-06 19:30
Saw Pipes reamins a hurdle in India being a pro-arbitration regime. Don't you think?
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2.1.1
 
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Recommend! +0 Objection! -0 ... 2012-09-09 12:56
But ONGC v. SAW Pipes is very restricted in the scope it provides for judicial review of arbitral awards
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3
 
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Recommend! +2 Objection! -0 aaj kuch toofani karte hain 2012-09-06 11:42
kian, what was the need for this plug?

Former Amarchand Mangaldas equity partner Ciccu Mukhopadhaya who was designated senior counsel in December 2011 was also appearing for the appellants.
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3.1
 
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Recommend! +0 Objection! -0 For Kian 2012-09-06 16:39
Please answer this guy! Thanks.
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3.2
 
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Recommend! +1 Objection! -0 kianganz 2012-09-06 18:16
I agree, it's not completely essential to the story though I'm not sure why this causes so much consternation either - we do have an unashamed bias towards law firm stories, since no one else is writing about them properly.

Also, news is often self-referential - we've covered this story in the context of Ciccu before, therefore now we are referencing our earlier story (which incidentally also attracted flak for singling him out alongside 20 other counsel).

By the way, please excuse any delays in moderating comments today, Prachi is bedridden and I'm stuck at airports...

Best wishes,
Kian
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3.2.1
 
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Recommend! +2 Objection! -0 But then Kian 2012-09-06 19:32
The fellows have a point. It does reflect badly when one counsel or law firm is specifically referred to when they don't deserve special mention. Ciccu is not really the arbitration equivalent of Jethmalani in criminal law i.e. he is not a legend (yet).
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3.2.1.1
 
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Recommend! +0 Objection! -0 I am Legend 2012-09-07 10:56
But I thought Ciccu was a legend. In fact, I thought he was the only lawyer arguing before the bench who actually had a substantial amount of arbitration practice under his belt. The bench should have been happy that someone with expertise in the practise of arbitration was appearing before them (maybe the judges were happy, we'll never know).
Side note: For all the hullabaloo about Ciccu, [...]
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3.2.1.2
 
Recommend! +4 Objection! -0 slappy 2012-09-07 21:54
The one who sat throughout the hearing days and has read the judgement in whole, will be glad to see that what Ciccu has prepared i.e. his written submission in this Balco case were an outcome of only a Master Mind. The Supreme Court in his judgement has at many places incorporated taken paragraphs from his written submissions verbatim. Even Aaspi Chinoy later adopted his line of arguments which was then approved by the Court.
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4
 
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Recommend! +1 Objection! -0 aaj kuch toofani karte hain 2012-09-06 11:46
were there no other law firms other than AMSS involved?, if yes, do they have names??
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5
 
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Recommend! +0 Objection! -0 AMSS 2012-09-06 12:09
AMSS appeared for the Respondents - FYI
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6
 
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Recommend! +0 Objection! -0 Chitranshul 2012-09-06 12:09
Please upload the copy of the judgment as soon as u get a hold of it. Thanks.
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7
 
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Recommend! +0 Objection! -0 Inquisitive 2012-09-06 12:12
Where can i find the text of the judgement?
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7.1
 
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Recommend! +0 Objection! -0 Inside Outside 2012-09-06 13:13
It's available on the supreme court website.
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7.2
 
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Recommend! +0 Objection! -0 akshatasrinath 2012-09-06 14:16
Quoting Inquisitive:
Where can i find the text of the judgement?

www.supremecourtofindia.nic.in/outtoday/ac701905p.pdf

paras 198-201
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8
 
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Recommend! +0 Objection! -0 L amore 2012-09-06 12:18
finally! i hope the issue of lex arbitri and extraterritorial application is sensitively dealt with while answering how a party to an international arbitration seated outside india can avail of interim measures under Section 17 should the opposite party have assets in India...
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9
 
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Recommend! +1 Objection! -0 213 2012-09-06 12:58
I think the Times of India got it wrong - they are reporting the story as below:

Arbitration award in a foreign country can be challenged in India: SC

NEW DELHI: The Supreme Court on Thursday said an arbitration award arrived at in a foreign country can be challenged in India if it was being enforced here.

The apex court's landmark judgement in the arbitration sector settles a lingering question whether Indian courts had the jurisdiction to entertain challenge to foreign arbitration awards.

timesofindia.indiatimes.com/india/Arbitration-award-in-a-foreign-country-can-be-challenged-in-India-SC/articleshow/16278240.cms
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10
 
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Recommend! +1 Objection! -0 Ignorant 2012-09-06 13:13
Just wondering, does this affect IKEA's emergence in the Indian market?
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10.1
 
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Recommend! +1 Objection! -0 Wondering 2012-09-06 16:45
How is this even related??!!
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11
 
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Recommend! +0 Objection! -0 delhi lawyer 2012-09-06 15:03
FYI - AMSS appeared on behalf of the Respondents.
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12
 
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Recommend! +0 Objection! -0 RKJ 2012-09-06 15:24
The Judgment is available on the website of Supreme Court of India.

Link is supremecourtofindia.nic.in/outtoday/ac701905p.pdf
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13
 
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Recommend! +0 Objection! -0 Prachishrivastava 2012-09-06 16:05
Dear all,

Thanks for bearing with the delay in uploading the judgement. We have now linked to it.

Best wishes,
Prachi
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14
 
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Recommend! +0 Objection! -0 Xyz 2012-09-06 16:33
I think Pramod Nair, JSA Bangalore Partner also argued the case
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14.1
 
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Recommend! +0 Objection! -0 Brazilian 2012-09-11 01:41
Quoting Xyz:
I think Pramod Nair, JSA Bangalore Partner also argued the case


Not really. He and Arathi Rajan instructed the Senior Advocate, Mr.Dholakia, who appeared for LCIA.
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Recommend! +1 Objection! -0 for the love of arbitration 2012-09-06 19:13
having just read the judgement, this one has got glaring inconsistencies. not expected from a full bench to not realize the anomaly the last sentence of the judgement would cause in the field of arbitration. verdict- DISAPPOINTED
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15.1
 
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Recommend! +0 Objection! -0 Please explain 2012-09-06 20:30
You have made a very cryptic commment about the last sentence. Per se, it seems fine, law, as a matter of practice, should be prospective including judge made law.

Vodafone is an apt example of the havoc retrospective legislation or the threat of retrospective legislation can cause.
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16
 
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Recommend! +0 Objection! -0 Gallo 2012-09-06 20:45
Why the special mention for the AMSS partner?
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16.1
 
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Recommend! +1 Objection! -0 goooogol 2012-09-10 14:04
Can you read? He's an ex-AMMS partner, not an AMSS partner.
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17
 
Recommend! +5 Objection! -0 Den- zok-vu 2012-09-10 16:58  interesting
Why so much fuss about Ciccu. He is a great Arbitration lawyer. At least we in Singapore/China only know him as Arbitration face of India. Our representatives were in India during the hearings and they reported here that Ciccu's written submission were excellent and they have been incorporated in the judgment too! His credit is long due.
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