LexM/S DOZCO INDIA P. LTD. versus M/S DOOSAN INFRACORE CO. LTD.
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[2010] 12 S.C.R. 259 MIS DOZCO INDIA P. LTD. v. MIS DOOSAN INFRACORE CO. LTD. (Arbitration Petition No. 5 of 2008) OCTOBER 08, 2010 [V.5. SIRPURKAR, J.] A B Arbitration and Conciliation Act, 1996 - s. 11 (6) - Appointment of arbitrator-' Distributorship agreement between Indian company and foreign company - Dispute between C parties - Arbitration clause - International arbitration - Application u/s. 11 (6) for appointment of arbitrator - '· Maintainability of - Held: Distributorship Agreement spells out clear agreement between the parties excluding Part I of the Act - Language of the Articles 22 and 23 of the agreement D clearly indicates that law governing the arbitration would be Korean law and seat of arbitration would be only in Seoul in Korea - Rules of arbitration to be made applicable were Rules of International Chamber of Commerce - Thus, s. 11 (6) not applicable - Supreme Court does not have the jurisdiction E uls. 11 (6) to appoint arbitrator. An Indian company and a foreign company entered into a Distributorship Agreement. Disputes arose between the two companies. In terms of the arbitration Clause in the agreement, the Indian company-petitioner F issued notice for appointment of an arbitrator. However, the arbitrator was not appointed. Therefore, the petitioner filed the instant petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996. Dismissing the petition, the Court HELD: 1. Unless the jurisdiction of the Indian Courts is not specifically excluded at least part I of the 259 G H 260 SUPREME COURT REPORTS [2010] 12 S.C.R. A Arbitration and Conciliation Act, 1996 whereunder there is a power to appoint Arbitrator is covered by Section 11 (6) of the Act, this Court would have jurisdiction to appoint an Arbitrator even if the arbitration is to be governed by foreign law. [Para 8] [256-E-F] 8 Bhatia International v. Bulk Trading S.A. and Anr. 2002(4) SCC 105; lndtel Technical Services Private Ltd. v. W. S. Atkins Rail Ltd. 2008 (10) SCC 308; Citation lnfowares Ltd. v. Equinox Corporation 2009 (7) SCC 220; National Thermal Power Corporation v. Singer Company and Anr. 1992 (3) C SCC 551; CMG Ltd. v. Unit Trust of India and Ors. 2007 (10) sec 751- referred to. 2. The arbitrability of the dispute is to be determined in terms of the law governing arbitration agreement and D the arbitration proceedings has to be conducted in accordance with the curial law. [Para 12] [268-E-G] Sumitomo Heavy Industries Ltd. v. ONGC Ltd. and Ors. 1998 (1) sec 305 - relied on. E The Law and Practice of Commercial Arbitration in England by Mustill and Boyd 2nd Edition - referred to. 3.1 Article 23 of the Distributorship Agreement is to be read in the backdrop of Article 22 and more F particularly, Article 22.1. It is clear from the language of Article 22.1 that the whole Agreement would be governed by and construed in accordance with the laws of The Republic of Korea. On seeing the language of Article 23.1 in the light of the Article 22.1, it is clear that the parties G had agreed that the disputes arising out of the Agreement between them would be finally settled by the arbitration in Seoul, Korea. The rules of arbitration to be made applicable were the Rules of International Chamber of Commerce. This gives the prima facie impression that the H DOZCO INDIA P. LTD. v. DOOSAN INFRACORE CO. 261 LTD. seat of arbitration was only in Seoul, South Korea. [Paras A 12, 13] [268-D-E; 270-E-F] 3.2 It cannot be said that because of the bracketed portion in the Article 23, to the effect "or such other place as the parties may agree in writing", the seat could be elsewhere also, thus, there is not express exclusion of Part I of the Act. A bracket could not be allowed to control the main clause. Bracketed portion is only for the purposes of further explanation. The bracketed portion B is meant only for ,the convenience of the arbitral tribunal and/or the parties for conducting the proceedings of the C arbitration, butthe bracketed portion does not, in any manner , change the seat of arbitration, which is only Seoul, Korea.,The language is clearly indicative of the express exclusion of Part I of the Act. The advantage of bracketed portion cannot be taken. The bracketed portion D in the Article was for the convenience of the parties in case they ;find to hold the arbitration proceedings somewhere else than Seoul, Korea. [Paras 12 and
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