Case Note & Summary
The dispute arose from an agreement dated 21.2.2006 between the applicant, a company registered in India, and the respondent, a Malaysian company. The applicant was shortlisted for a subcontract by the respondent for a project awarded by ONGC. A dispute emerged when the respondent invoked a termination clause in the contract, leading the applicant to invoke the arbitration clause. The applicant sought the appointment of an arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996, after the respondent failed to respond to requests for appointing an arbitrator. The respondent contended that the applicant did not follow the required procedure under the ICC Rules for arbitration, which necessitated a request to the ICC Secretariat. The court analyzed the arbitration agreement, particularly Article X, which mandated arbitration in Mumbai under ICC Rules. The court noted that the applicant had not approached the ICC Secretariat, thus rendering the application not maintainable. The court referenced previous judgments to support its conclusion that the agreed arbitration procedure must be followed. Ultimately, the court dismissed the application, affirming that the applicant's failure to comply with the arbitration agreement's terms precluded judicial intervention.
Headnote
A) Arbitration Law - Appointment of Arbitrator - Maintainability of Application - Arbitration and Conciliation Act, 1996, Section 11(5) - The applicant's failure to approach the ICC Secretariat for arbitration appointment as per the agreed procedure rendered the application not maintainable. The court emphasized that the parties had agreed on a specific arbitration process which must be followed before seeking judicial intervention. Held that the application was dismissed for not adhering to the stipulated arbitration rules (Paras 8-16).
Issue of Consideration
Whether the application for appointment of an arbitrator was maintainable given the agreed arbitration procedure.
Final Decision
The Supreme Court dismissed the application for appointment of an arbitrator, holding that it was not maintainable due to the applicant's failure to approach the ICC Secretariat as required by the arbitration agreement.
Law Points
- Arbitration procedure
- appointment of arbitrator
- ICC Rules
- Section 11
- Arbitration and Conciliation Act
- 1996
