Alerts & Updates 29th Mar 2019
It is trite law that in an international commercial arbitration, when parties are unable to agree to the appointment of an arbitrator/ arbitral tribunal, an application under section 11 of the Arbitration and Conciliation Act, 1996 (“the Act”), for appointment of arbitrator would lie to the Hon’ble Supreme Court of India, pursuant to Section 11(12)(a) of the Act.
In the present case, disputes arose between Antikeros Shipping Corporation, a body corporate incorporated in Liberia, and Adani Enterprises Limited, a company incorporated under the laws of India. Antikeros Shipping Corporation, the body incorporated outside India filed an arbitration application under section 11 of the Act for the appointment of an arbitrator, before the Bombay High Court (“High Court”). The High Court passed an order dated 21 April 2011 (“Order”) under section 11 of the Act and appointed an arbitrator.
During the pendency of the arbitration proceedings, Adani Enterprises Limited (“Review Petitioner”) filed a Review Petition (“Review Petition”) before the High Court seeking review of the Order on the ground that the Order is non-est and void in law as the High Court inherently lacked jurisdiction to appoint an arbitrator in an “international commercial arbitration”, along with a Notice of Motion seeking condonation of delay of around eight years in filing the Review Petition.
The High Court concluded that since the arbitration was an “international commercial arbitration” within the meaning assigned to it under Section 2(1)(f) of the Act, the applicant ought to have filed the Arbitration Application before the Hon’ble Supreme Court of India and not the High Court. The High Court held that the Order was non-est in law and admittedly passed without jurisdiction. In view of the above, the High Court condoned the delay of around eight years in filing the Review Petition, allowed the Review Petition, and recalled the Order in the arbitration Application.
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