Case Note & Summary
The review petitioner, Soham Shah, sought recall of an order dated 27 June 2014 passed by the designate of the Chief Justice of the Bombay High Court appointing a sole arbitrator in Arbitration Application No. 166 of 2013. The original applicant, The Indian Film Company Limited (a Cyprus-incorporated company), along with Viacom 18 Media Private Limited and M/s Roptonal Limited, had filed the arbitration application. The petitioner argued that since one of the parties was a body incorporated outside India, the arbitration was an international commercial arbitration under Section 2(1)(f) of the Arbitration and Conciliation Act, 1996, and therefore only the Chief Justice of India or his designate could appoint an arbitrator under Section 11(9), not the High Court's designate under Section 11(6). The court noted that on 17 November 2014, by consent of parties, the arbitrator was substituted by S.J. Kathawala, J., the then designate of the Chief Justice. The petitioner had also filed a written statement before the arbitrator. The court held that the substitution of the arbitrator by consent cured any initial jurisdictional defect, and the review petition challenging the original appointment had become infructuous. The petition was dismissed with no order as to costs.
Headnote
A) Arbitration Law - International Commercial Arbitration - Appointment of Arbitrator - Section 11(9) read with Section 2(1)(f) of the Arbitration and Conciliation Act, 1996 - Where one party is a body incorporated in a country other than India, the arbitration is an international commercial arbitration and only the Chief Justice of India or his designate can appoint an arbitrator under Section 11(9). However, if the parties subsequently consent to the substitution of the arbitrator, any initial jurisdictional defect is cured and the review petition challenging the original appointment is dismissed. (Paras 2-5)
B) Arbitration Law - Review Petition - Substitution of Arbitrator by Consent - Curing of Jurisdictional Defect - The petitioner participated in the arbitration proceedings by filing a written statement and did not object to the jurisdiction before the arbitrator. The substitution of the arbitrator by consent of parties renders the review petition infructuous as the original order appointing the arbitrator has been superseded. (Paras 3-5)
Issue of Consideration
Whether the designate of the Chief Justice of the High Court had jurisdiction to appoint an arbitrator in an international commercial arbitration under Section 11(6) of the Arbitration and Conciliation Act, 1996, and whether the subsequent substitution of the arbitrator by consent of parties cures any initial lack of jurisdiction.
Final Decision
The review petition is dismissed. No order as to costs.
Law Points
- International Commercial Arbitration
- Appointment of Arbitrator
- Section 11(9) Arbitration and Conciliation Act
- 1996
- Substitution by Consent
- Curing Jurisdictional Defect
Case Details
2016 LawText (BOM) (02) 127
Review Petition (L) No. 32 of 2015 in Arbitration Application No. 166 of 2013
Ms. Deepti Panda a/w Mr. Nasir Ali Rizvi, Mr. H.N. Thakore i/b Thakore Jariwala and Associates for the Petitioner; Mr. Ashish Kamat a/w Ms. Madhu Gadodia, Ms. Megha Chandra i/b Naik Naik & Co. for the Respondents
The Indian Film Company Limited, Viacom 18 Media Private Limited, M/s Roptonal Limited
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Nature of Litigation
Review petition seeking recall of an order appointing an arbitrator in an international commercial arbitration.
Remedy Sought
Recall of order dated 27 June 2014 appointing a sole arbitrator.
Filing Reason
Petitioner contended that the arbitration was an international commercial arbitration and only the Chief Justice of India or his designate could appoint an arbitrator under Section 11(9) of the Arbitration and Conciliation Act, 1996, and thus the High Court designate lacked jurisdiction.
Previous Decisions
Order dated 27 June 2014 appointing a sole arbitrator; order dated 17 November 2014 substituting the arbitrator by consent of parties.
Issues
Whether the designate of the Chief Justice of the High Court had jurisdiction to appoint an arbitrator in an international commercial arbitration under Section 11(6) of the Arbitration and Conciliation Act, 1996.
Whether the subsequent substitution of the arbitrator by consent of parties cures any initial lack of jurisdiction.
Submissions/Arguments
Petitioner argued that since one party was a body incorporated in Cyprus, the arbitration was an international commercial arbitration under Section 2(1)(f) and only the Chief Justice of India or his designate could appoint an arbitrator under Section 11(9).
Respondents argued that the substitution of the arbitrator by consent rendered the review petition infructuous.
Ratio Decidendi
In an international commercial arbitration, the Chief Justice of India or his designate alone can appoint an arbitrator under Section 11(9) of the Arbitration and Conciliation Act, 1996. However, if the parties subsequently consent to the substitution of the arbitrator, any initial jurisdictional defect is cured and the review petition challenging the original appointment becomes infructuous.
Judgment Excerpts
By this review petition, the applicant seeks recall of the order dated 27th June, 2014 passed by the then designate of the Hon'ble Chief Justice thereby appointing a counsel of this court as the sole arbitrator.
She submits that since one of the party to the arbitration agreement was a corporate incorporated in the country other than India, the arbitration would be an international commercial arbitration within meaning of section 2(1)(f) of the Arbitration and Conciliation Act, 1996.
In my view, since the earlier arbitrator appointed by an order dated 27th June, 2014 has been substituted by the learned designate of the Hon'ble Chief Justice by consent of parties, the review petition itself has become infructuous.
Procedural History
The original applicant filed Arbitration Application No. 166 of 2013. On 27 June 2014, the designate of the Chief Justice of the Bombay High Court appointed a sole arbitrator. On 17 November 2014, by consent of parties, the arbitrator was substituted by S.J. Kathawala, J. The review petitioner filed the present Review Petition (L) No. 32 of 2015 seeking recall of the order dated 27 June 2014.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 2(1)(f), Section 11(6), Section 11(9)
