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First time SC for Amarchand’s gowned Ciccu as 11 seniors argue in Bhatia test case

Supreme senior Ciccu
Supreme senior Ciccu

On-notice Amarchand Mangaldas equity partner Ciccu Mukhopadhaya is expected to argue in the Supreme Court for the first time since having been designated senior counsel in December 2011, with 10 other senior advocates appearing in the test case relating the Bhatia International arbitration doctrine in the court’s special constitutional bench.

More than 30 counsel are listed on the cause list for the appellants and respondents in various civil appeals and special leave petitions (SLPs) associated with the Supreme Court hearings that started around 10 January. Around eight cases are now being heard under Article 132 of the Constitution into the chief’s court under Chief Justice of India (CJI) SH Kapadia.

The special constitutional bench is deciding on the contentious doctrine laid down in the 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, reported Corporate Law Blog on 20 January.

Mukhopadhaya is understood to be in line to appear next week to argue in the case of Bharat Aluminium Co v Kaiser Aluminium Technical Services (Civil Appeal No 7019 of 2005) with Salve, and in Bharati Shipyard Ltd vs Ferrostaal AG & anr (SLP 27824/2011) as lead counsel, after other counsel have been arguing on most Tuesdays, Wednesdays and Thursdays since the start of hearings.

Apart from Mukhopadhaya, Salve, Sorabjee, Sundaram and Subramanium, the senior counsel roll call included Prashanto Chandra Sen, Aspi Chenoy, Arvind P Datar, SK Dholakia, Abhishek Manu Singhvi, PH Parekh, as well as Advani & Co senior partner Hiroo Advani.

Salve, Mukhopadhya and others were instructed by Suresh A Shroff & Co, which is the advocates-on-record (AOR) firm that files vakalatnamas on behalf of Amarchand, and that was first set up by Amarchand Delhi and Mumbai managing partners and registered AORs Shardul Shroff and Cyril Shroff respectively.

Senior Advocate Gopal Subramanium is acting for Bharat Aluminum alongside Parekh & Co partner and senior advocate PH Parekh.

In arguments so far, Subramanium contended that the “seat of arbitration” was not the basis on which the jurisdiction of the courts has 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, he said, according to Corporate Law Blog.

The test of jurisdiction under the Indian Arbitration Act, 1996 was not “seat” but “subject matter”, said Subramanium.

Mukhopadhyaya is currently on his notice period at Amarchand, where he had resigned as litigation head and equity partner to set up as an independent senior counsel, Legally India first reported on 4 January.

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