Holding

Section 11(5) of the Arbitration and Conciliation Act, 1996 applies to international commercial arbitrations unless the parties expressly exclude Part I, so the Supreme Court can appoint an arbitrator.

Summary

Citation Infowares Ltd., an Indian company, entered into outsourcing agreements with US‑based Equinox Corp., the last of which (dated 25‑Jan‑2007) stipulated that the contract would be governed by California law and that any dispute would be referred to a mutually agreed arbitrator. After Equinox terminated the agreement, Infowares claimed damages and invoked the arbitration clause, but the parties failed to agree on an arbitrator within the 30‑day period prescribed by Section 11(5) of the Arbitration and Conciliation Act, 1996. The question before the Supreme Court was whether, given the parties’ choice of foreign law, Part I of the Act (including Section 11) applied and whether the Court could appoint an arbitrator. Relying on Indtel Technical Services, Bhatia International and Venture Global Engineering, the Court held that Part I applies unless expressly excluded, and the arbitration clause did not contain an express or implied exclusion of the Act. Consequently, the Supreme Court exercised its jurisdiction under Section 11(5) and appointed former Chief Justice R.C. Lahoti as sole arbitrator, with the contract’s substantive law remaining California law.

Issues considered

Whether Part I of the Arbitration and Conciliation Act, 1996 applies to an international commercial arbitration where the parties have chosen a foreign substantive law (California).
Whether the Supreme Court has jurisdiction under Section 11(5) of the Act to appoint an arbitrator in such a scenario.
Whether the arbitration clause is excluded by implication due to the parties' choice of foreign law.

Legislation cited

Arbitration and Conciliation Act, 1996s. 11(5), s. 2(2), s. 34

Subjects

ArbitrationSection 11(5)International commercial arbitrationForeign governing lawAppointment of arbitratorArbitration and Conciliation Act 1996Implied exclusionSupreme Court jurisdiction

Judgment

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I

j
[2009] 6 S.C.R. 737

CITATION INFOWARES LIMITED A
v.
EQUINOX CORPORATION
(Arbitration Application No. 8 of 2008)
APRIL 20, 2009
B
[V.S. SIRPURKAR, J.]
~

Arbitration and Conciliation Act, 1996 - s 11(5) -
Appointment of arbitrator - Agreement between Indian
company and foreign company - Dispute between parties - c
Invocation of arbitration clause - Agreement clause that
disputes to be referred to mutually agreed arbitrator and
agreement to be governed as per laws of California, USA -
,.. Application u/s. 11 (5) for appointment of arbitrator before
• Supreme Court - Jurisdiction of Chief Justice or his nominee D
to appoint arbitrator - Held: Appointment of arbitrator uls.
11 (5) can be made by Supreme Court only if Part I of the Act
is applicable to present arbitration proceedings - Disputes
between parties is an international arbitration - One of the
contracting parties is Indian party - Obligations under the E
contract were to be completed in India - It is difficult to read
implied exclusion of Part I in the language of arbitration
- ~ clause - Thus, Justice R.C. Lahoti (Ex.CJ/) appointed as sole
Arbitrator to arbitrate upon the disputes between parties - He
would decide the procedure to be followed in arbitration F
proceedings, sittings of proceedings as also settle his fees -
However, law governing the contract would be of California.

lndtel Technical Services Private Ltd. vs. W S. Atkins Rail
Limited 2008 (10) SCC 308; Bhatia International vs. Bulk
' .j.
Trading S.A. 2002 (4) SCC 1051 and Venture Global G
Engineering vs. Satyam Computer Services Ltd. 2008 (4)
sec 190, relied on.
National Thermal Power Corporation vs. Singer
737 H
738 SUPREME COURT REPORTS [2009] 6 S.C.R.

A Company and Anr. 1992 (3) SCC 551, held inapplicable. ' -
~
Sumitomo Heavy Industries Limited vs. ONGC Limited
1998 (1) sec 305, referred to.

James Miller and Partners Ltd. vs. Whitworth Street
B Estates Ltd. 1970 AC 583; Bay Hotel and Resort ltd. vs.
Cavalier Construction Co. Ltd. 2001 UKPC 34; ABB Lummus
Global Ltd. vs. Keppel Fels Ltd. 1999(2) Lloyds Law Report
24, referred to.

c Case Law Reference:
2008 (10) sec 308 Relied on. Para 24
2002 (4) sec 105 Relied on. ·Para 21, 24

D
2008 (4) sec 190
1992 (3) sec 551
1998 (1) sec 305
Relied on. Para 22, 24
Held inapplicable. Para 13, 15
Referred to. Para 9
. '

1970 AC 583 Referred to. Para 24
E
2001 UKPC 34 Referred to. Para 24
1999(2) Lloyds Law
Report 24 Referred to. Para 24 ~ ....
F CIVIL ORIGINAL JURISDICTION : Arbitration Application
No. 8 of 2008.

Under Section 11 (5) of the Arbitration & Conciliation Act,
1996.
G S.K. Bagaria, Ashok Jain, Pankaj Jain and Bijoy Kumar I "
Jain for the Appellant(s).

Krishnan Venogopal, Pragyan Pradip Sharma, Kanika
Mehra, Udai V.S. Rathore and Dr. Kailash Chand for the
H Respondent( s).
CITATION INFOWARES LIMITED v. EQUINOX 739
;...
CORPORATION

The Judgment of the Court was delivered by A
V.5. SIRPURKAR, J. 1. This is an application under
Section 11 (5) of the Arbitration and Conciliation Act, 1996. The
applicant M/s Citation lnfowares Ltd. is a company registered
under the Companies Act carrying on business in United States
B
of America as also in Gurgaon, India through its establishmenU
subsidiary. The respondent Equinox Corporation is also a
company registered within the appropriate laws of United
States bf America, having its office at 10, Corporate Park, Suit
No.130, Irvine, CA-92606, USA. The Equinox Corporation has
been carrying on business in India through outsourcing. It is also c
carrying on business in India through its own establishment in
India, Equinox Global Services Private Limite<;l (hereinafter
called 'EGSPL'). The said EGSPL is a company registered
under the Companies Act and has its office in Gurgaon. It is
/
pleaded in the application that the respondent company D
~
Equinox Corporation (hereinafter called 'EC') had entered into
an outsourcing agreement singed in Kolkata, India with the
applicant Citation lnfowares Ltd (hereinafter called 'CIL') on
09.02.2004 wherein the applicant was engaged as a service
provider on terms and conditions contained in the agreement. E
It was agreed in this agreement dated 09.02.2004 that CIL
which had bagged orders from its client and since it had
sufficient funds, space and existing infrastructure to execute the
,-. ~
projects and since it required expert manpower to provide
service to its client and further since CIL had approached EC F
for providing the required number of resources to CIL as against
the monthly charges at mutually agreed consideration, EC had
agreed to provide resources and, hence, both the parties had,
in short, mutually agreed to do the business on certain agreed
terms. The terms included that the duration of the agreement G
,.. "' ·- was to be for three years. There was a confidentiality clause
10. Following was the clause 10:

"10. Any dispute between the parties hereto to arising

H
740 SUPREME COURT REPORTS [2009] 6 S.C.R.

A from this Agreement, or from an individual
agreement concluded on the basis thereof, shall be
finally referred to a mutually agreed Arbitrator."

2. Two more agreements were entered into, they being
agreements dated 23.07.2004 and 25.01.2007 in between the
8 parties. It is the claim of the applicant that it created
infrastructure for seating capacity of 200 customized seats at
Gurgaon address of the respondents and same were being
utilized by the respondent. All the three agreements were
signed at Kolkata, India and the services were being provided
C and rendered under the said agreement by the applicant at
Gurgaon, India.

3. On this backdrop, by a notice dated 09.01.2008 sent
through e-mail, the respondent terminated the agreements
o dated 25.01.2007 w.e.f. 07.03.2008. According to the applicant,
this termination of agreement was illegal and wrongful, causing
it huge loss. The applicant assessed the damages to be
'
compensated by the respondent tentatively at US $ 23,49, 182.
The applicant also pleads that the respondent had also failed
E to pay the outstanding amount of US $ 6,32, 182 payable to the
applicant under the contract against the invoice raised by the
applicant for the period from July, 2007 to January, 2008. The
applicant also claimed on this amount the interest @ 18 % per
annum.

F 4. What is important is the agreement dated 25.01.2007
which has already been referred to. Under the said agreement
clause 10.1 provided as under:

"10.1. Governing law- This agreement shall be
G governed by and interpreted in accordance with the
laws of California, USA and matters of dispute, if
any, relating to this agreement or its subject matter
shall be referred for arbitration to a mutually agreed
Arbitrator"
H
CITATION INFOWARES LIMITED v. EQUINOX 741
CORPORATION [V.S. SIRPURKAR, J.]

5. Thus, in between, first agreement dated 09.02.2004 and A.
the subsequent agreement dated 25.01.2007 there was an
essential difference that under the last agreement the governing
law was to be that of California, USA. However, that clause did
provide for arbitration in case of disputes. On the disputes
arisen, the applicant invoked arbitration clause by its notice B
dated 08.02.2008 and further notice dated 09.02.2008
informing the respondent about appointment of Arbitrator and
._ . requested the respondent to agree to the said appoir:itment. The
respondent did not agree within the period of 30 days provided
in Section 11 (5) of the Arbitration and Conciliation Act, 1996 c
(hereinafter called the 'Arbitration Act') and, thus, parties have
failed to agree to the appointment of sole Arbitrator within the
time limit prescribed under that Section necessitating the
present application for appointment of an Arbitrator by this
Court since this happens to be an international arbitration. 0
6. There is no dispute between the parties that this is an
international arbitration and, therefore, under the Arbitration Act,
the Chief Justice or his nominee alone would have the
jurisdiction to appoint the Arbitrator. There is also no dispute
that there is a live dispute between the parties and there is an E
Arbitration Clause in case of dispute between the parties.

7. So far so good. However, the question that has arisen
is whether this Court would have the jurisdiction, in the present
factual scenario and on the backdrop of the fact that the parties F
vide the aforementioned clause 10.1 had agreed that the
governing law would be that of California, USA. According to
the applicant, it is only this Court which would have the
jurisdiction to appoint the Arbitrator, while according to the
respondent this Court does not have the jurisdiction to appoint G
the Arbitrator as the provisions of the Arbitration Act would
necessarily stand excluded in view of the specific language of
clause 10.1 of the agreement wherein the governing law would
be the law of California, USA.

8. Both the sides have extensively canvassed the rival H
742 SUPREME COURT REPORTS [2009] 6 S.C.R.

A contentions. Shri S.K. Bagaria, Learned Senior Counsel
appearing on behalf of the applicant contended that this
question is no more res integra and stands concluded by the
judgment of this Court in lndtel Technical Services Private Ltd.
vs. WS. Atkins Rail Limited reported in 2008(10) SCC 308.
B He further pointed out that the said judgment exclusively place
reliance on other judgment of this Court in Bhatia International
vs. Bulk Trading S.A. reported in 2002 (4) SCC 105. The
Learned Senior .Counsel also made a reference to another -<I
judgment in Venture Global Engineering vs. Satyam
c Computer Services Ltd. reported in 2008(4) SCC 190. It was
pointed out that in the first mentioned decision, the Learned
Single Judge (Hon'ble Altamas Kabir, J.) of this Court, while
interpreting the clause identically worded as Clause 10.1
(quoted supra), came to the conclusion and recorded his
findings in para 36 and 37 of that judgment and ultimately held
D ...
that the provisions of Part I of Arbitration and Conciliation Act, 1
1996 would be equally applicable to international commercial
arbitrations held outside India unless any of the said provisions
are excluded by agreement between the parties expressly or
by implication. The Learned Judge also found that this question
E of the applicability of the Part I of Arbitration and Conciliation
Act, 1996 to the international agreements, even where the
governing law was to be a foreign law, was concluded by the

F
decision in Bhatia International vs. Bulk Trading S.A. reported
in 2002 (4) sec 105 (cited supra).
¥
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9. As against this, Shri Krishnan Venugopal, Learned
Senior Counsel appearing on behalf of the respondent urged
from the language of the clause that where the governing law
is agreed between the parties, say foreign law, then essentially,
G the question of appointment of arbitrator also falls in the realm ~ ~
of the said foreign law and not within the realm of Arbitration
and Conciliation Act. The Learned Senior Counsel further urged
that in the wake of language of Clause 10.1, it was very clear
that the agreement was to be governed by and interpreted in
H accordance with the Laws of California and further in
CITATION INFOWARES LIMITED v. EQUINOX 743
CORPORATION [V.S. SIRPURKAR, J.]
-t
continuation of the earlier words, it was provided that the A
matters of dispute relating to the agreemen~ or its subject
matter, would be referred to arbitration to a mutually agreed
arbitrator. The Learned Senior Counsel, therefore, urged that
considering the positive language of Clause 10.1, it was clear
that the parties had specifically agreed that the matter of B
appointment of arbitrator would also be governed by the Laws
of California. The Learned Senior Counsel urged that, therefore,
j,,. there was a clear cut agreement between. the parties to that
effect and as such, as held in Bhatia International vs. Bulk
Trading S.A. reported in 2002 (4) SCC 105 (cited supra),
parties had expressly excluded the provisions of Part I of the
c
Arbitration and Conciliation Act, 1996. The Learned Senior
Counsel very heavily relied on the last part of Para 32 of the
judgment in case of Bhatia International (cited supra). The
learned Senior Counsel, therefore, urged that even if judgment
D
\ .- ~
in case of Bhatia International (cited supra) was held
applicable, it was in fact, liable to be read in favour of the
respondent and not the applicant. The Learned Senior Counsel
also invited our attention to another judgment of this Court in
National Thermal Power Corporation vs. Singer Company &
Anr. reported in 1992 (3) SCC 551 and Sumitomo Heavy E
Industries Limited vs. ONGC Limited reported in 1998(1) SCC
305. Apart from these judgments, the Learned Senior Counsel
relied on a decision of the House of Lords in case of James
• Miller & Partners Ltd. vs. Whitworth Street Estates Ltd.
reported in 1970 AC 583 in support of the proposition that F
where the parties have agreed that the governing law would be
a foreign law, normally the question relating to Arbitral Tribunal
would also be governed by such foreign law. The other decision
relied upon by the Learned Senior Counsel is the decision of
Privy Council in Bay Hotel and Resort ltd. vs. Cavalier G
~ ~
Construction Co. Lt<j. reported in 2001 UKPC 34/2001 WL
825663 and the decision of Queen's Bench (Commercial
Court) in case of ABB Lummus Global Ltd. vs. Keppel Fels
Ltd. reported in 1999(2) Lloyds Law Report 24. The Learned
Senior Counsel also painstakingly took us through the provision H
744 SUPREME COURT REPORTS [2009] 6 S.C.R.

t
A of California Code of Civil Procedure and more particularly, in
Chapter II and Ill thereof. Judgments of Bombay High Court and
Gujarat High Court were also relied upon.

10. On these conflicting claims, it is to be found as to
whether it would be for this Court to appoint the arbitrator under
B Section 11 (5) of the Arbitration and Conciliation Act, 1996.

11. There can be no dispute that such appointment can
be made·by this Court only and only if Part I of the ArbitratioA
and Conciliation Act is· applicable to the present arbitration
c proceedings.

12. Shri Bagaria, learned senior counsel appearing on
behalf of the petitioner heavily relied on the Bhatia International
(cited supra) and pointed out that the law on this subject is no
more res integra as it was concluded by the judgment of this ....
D ~
Court in lndtel Technical Services' case (cited supra) Learned
counsel pointed out that in the said judgment of lndtel Technical
Services' case (cited supra), the earlier judgments in Bhatia
International (cited supra) and even National Thermal Power.
Corporation' case (cited supra) have been considered. Learned
E counsel pointed out that the clause of arbitration which fell for
consideration was as follows:

"Although the matter has been argued at great length and ~

Mr. Tripathi has tried to establish that the decision of this
F Court in Bhatia lnternational's Case is not relevant for a
decision in this case, I am unable to accept such
contention in the facts and circumstances of the present
case. It is no doubt true that it is fairly well settled that wher:i
an arbitration agreement is silent as to the law and
procedure to be followed in implementing the arbitration
G
agreement, the law governing the said agreement would
• f'

ordinarily be the same as the law governing the contract
itself. The decisions cited by Mr. Tripathi and the views of
the jurists referred to in NTPC's case support such a
H proposition. What, however, distinguishes the various
CITATION INFOWARES LIMITED v. EQUINOX 745
CORPORATION [V.S. SIRPURKAR, J.]
.f

decisions and views of the authorities in this case is he A
fact that in Bhatia International this Court laid down the
proposition that notwithstanding the provisions of Section
2(2) of the Arbitration and Conciliation Act, 1996
indicating that Part I of the said Act would apply where
the place of arbitration is in India, even in respect of B
international commercial agreements, which are to be
.. governed by the laws of another country, the parties would
be entitled to invoke the provisions of Part I of the
. aforesaid Act and consequently the application made
under Section 11 thereof would be maintainable. c
(emphasis supplied)

13. Again in paragraph 37 the Court expressed that the
decision in Bhatia lnternational's case has been rendered by
jl
~ a Bench of three Judges and governs the scope of application D
under Section 11, thereby expressing the binding nature of the
judgment. It was specifically held that unless language of the
provisions of Part I are excluded by agreement between the
parties either expressly or by implication, Part I of the Act
including Section 11 would be applicable even where the E

- ·~
international commercial agreements are governed by the
clause of another country. It is not, therefore, necessary to
consider the argument of Shri K.K. Venugopal, learned Senior
counsel to the effect that the law laid down in National Thermal
Power Corporation's case (cited supra) .would govern the field. F
Even otherwise it is difficult to accept the contention that
National Thermal Power Corporation's case (cited supra) can
clinch the issue.

14. In paragraph 23 thereof the Court undoubtedly
~~~:"
expressed that the proper law of arbitration is normally the G
.1
same as the proper law of contract and it is only in exceptional
cases that it is not so, even where the proper law of contract is
~· expressly chosen by the parties. The Court further expressed
about the presumption arising that the law of the country where
arbitration is agreed to be held is the proper law of arbitration. H
746 SUPREME COURT REPORTS [2009] 6 S.C.R.

A This presumption was heavily relied on by Shri K.K. Venugopal.
In my opinion the scope of the expressions in para~raph 23
must be held to be limited. There may be presumption where
the parties have agreed to hold arbitration in a particular country.
In that circumstance, the presumption would arise that the law
B of the country where the arbitration is agreed to be held would
apply as a law of contract. Where there has been no specific
expression about the law of contract, the situation is otherwise.
In t.his way the law of contract is agreed upon as the Californian 4
law.
c .
15. However, there is no agreement in respect of the law
governing the procedure of arbitration. Again in paragraph 25
the Court expressed that the party had the f~eedom to choose
the law governing international agreement of choosing
substantive law of arbitration agreement as well as the
D procedural law governing the conduct of the arbitration. It is then
t'1e choice to be exercised by the parties or by implication,
.. '
except to such situations where there is no express choice of
the law governing the contract as a whole or the arbitration
agreement in particular. There is, in absence of any contrary
F intention, a presumption that the parties have intended that the
proper law of contract as well as the law governing arbitration
agreement are the same as the law of the country in which the
arbitration is agreed to be held. Here again the stress is on
•
the agreement about the country where the arbitration is agreed
F to be held and precisely this situation is absent in the present
case. Here the substantive law of contract governing the
contract is specifically agreed upon. However, the place where
arbitration would be held is nol to be found in the language of
Clause 10.1. Therefore, the situation in National Thermal
G Power Corporation's case (cited supra) was not applicable to ,,
~he present case.

16. The Court undoubtedly further goes on to say that where
the proper law of contract is expressly chosen by the parties
such a law must, in the absence of unmistakable intention to
H
CITATION INFOWARES LIMITED v. EQUINOX 747
CORPORATION [V.S. SIRPURKAR, J.]
~
the contrary, govern the arbitration agreement which, though A
collateral or ancillary to the contract, is nevertheless a part of
the contract. It is this expression which has been heavily relied
upon by the learned senior counsel for the respondent.

17. However, in Bhatia International (cited supra), duly B
considered in lndtel Technical Services' case (cited supra) is
apart from the fact that the provisions of the Arbitration and
Conciliation Act, 1996 were not applicable either in Singer's
t
case or even in Sumitomo Heavy Industries' case (cited
supra). The issue regarding the applicability of Part I of the
1996 Act to international commercial arbitration also did not
c
fall for consideration in these cases. It may be that the Arbitrator
might be required .to take into account the applicable laws which
may be the foreign laws but that does not effect the jurisdiction
under Section 11 which falls for Part I which has been
specifically held applicable in Bhatia International (cited supra). D

18. The learned Judge, deciding the lndtel Technical
Services' case (cited supra) also has taken into consideration
this aspect and has expressed in Paragraph 36 as follows:
E
"The decisions cited by Mr. Tripathi and the views of the
jurists referred to in NTPC's case support such a
proposition. What, however, distinguishes the various
~
.. decisions and views of the authorities in this case is he
fact that in Bhatia International this Court laid down the
F
proposition that notwithstanding the provisions of Section
2(2) of the Arbitration and Conciliation Act, 1996 indicating
that Part I of the said Act would apply where the place of
arbitration is in India, even in respect of international
commercial agreements, which are to be governed by the
laws of another country, the parties would be entitled to G
'" • invoke the provisions of Part I of the aforesaid Act and
consequently the application made under Section 11
thereof would be maintainable. n

19. The situation therefore is identical in the present H
748 SUPREME COURT REPORTS [2009] 6 S.C.R.
~

A matter. Shri K.K. Venugopal, however, contended that if the
parties intended specifically in this case that the law governing
the contract was Californian law, as expressed in Bhatia
lnternation as well as in lndtel Technical Services' case (cited
supra), an implied exclusion of Part I should be presumed. I am
B afraid it is not possible to read such an implied exclusion ..
20. Seen the striking similarity between Clause 10.1 and
Clauses 13.1 and 13.2 which have been quoted above and
further the view expressed by learned Judge in 'lndtel Technical
Services' case (cited supra) regarding the exclusion, it is only
c possible to read even distantly such an implied exclusion of
Part I. It cannot be forgotten that one of the contracting parties
is the Indian party. The obligations µnder the contract were to
be c9mpleted in India. Further considering the nature of the
contr~ct, it is difficult to read any such implied exclusion of Part
D I in the language of Clause 10.1. That argument of learned
senior counsel for the respondent therefore must be rejected.

21. Learned senior counsel for the respondent invited
attention of this Court to paragraphs 32 and 34 of Bhatia
E International (cited supra) and again reiterated that the implied
exclusion must be read in the language of Clause 10.1. I have
already however, held that considering the various factors, such
exclusion cannot be read and, therefore, Bhatia International
(cited supra) will have to be held applicable.
~ ...,.
F 22. Identical view has been taken even in Venture Global
Engineering's case (cited supra) where the Court took the view
that even the foreign award could be challenged under Section
34 of the Act. This is a judgment by Two Judges Bench. The
observations made in paragraphs 31, 35 and 37 are extremely
G apposite and binding. The comments against this judgment that ~
" /

it does not consider the question of implied exclusion would be
of no consequence in view of the findings which have earlier
been referred to. In the present· matter it cannot be said that
there was any implied exclusion of the provisions of Part I. The
H law laid down, therefore, is clearly binding.
,A
CITATION INFOWARES LIMITED v. EQUINOX 749
CORPORATION [V.S. SIRPURKAR, J.]
-4
23. Similarly the language of Clause 10.1, it is suggested A
was expressly agreed between the parties that the procedural
law would be that of California. The suggestion given by the
learned senior counsel for the respondent that since the
provision about the arbitration is included in the same sentence
the intention must be presumed that the parties intended only B
the Californian law even to govern the procedure. As I have
said, that by itself it cannot be the way to read the said Cause
as the decision in ~hatia International (cited supra) was
available on the date when the agreement was signed.

24. This means that the contentions raised based on the
c
three foreign cases by Shri K.K. Venugopal James Miller &
Partners' ~ase (cited supra), Bay Hotel and Resort' case (cited .
supra) and ABB Lummus Globa/'s case (cited supra) need not
be considered in view of the binding nature of the three
~ aforementioned decisions in Bhatia International (cited supra), D
Venture Global Engineering's case (cited supra), and lndtel
Technical Services' case (cited supra). However, since those
cases are actively relied upon the same are considered as
follows.
E
25. In the first mentioned case, the question was as to the
•-'
~
~
applicable law of contract and not the applicable law of
arbitration where the parties had specifically agreed on the law
of contract. The factual situation was, therefore, different. The
relied on observations at page 616 of the decision are more F
in the nature of obiter.

26. In so far as the Bay Hotel and Resort' case (cited
supra) is concerned the reliance is placed on paragraph 35 of
the said decision to the following effect:
... ~
G
"Two points in the speech of Lord Wilberforce are notable
here. First, he said that in th6 normal case where the
contract itself is governed by English law, any arbitration
would be held under English procedure. Secondly, he said
that the mere fact that the arbitrator was to set either partly H
750 SUPREME COURT REPORTS [2009] 6 S.C.R.
.
~
A or exclusively in another part of the United Kingdom, or,
for that matter, abroad, would not lead to a different result;
the place might be chosen for many reasons of
convenience or be purely accidental; a choice so made
should not affect the parties' rights. The passage in his
B speech is at page 616 of the report."

These observations apply to the normal case which is not ·
a case here.

27. As regards the third decision in ABB Lummus G/obaf's
c case (cited supra) the relied upon passage again does not
clinch the issue. What is stated there is that where the parties
chose the curial law of arbitration they would be taken to chose
the place and sitting of arbitration. In my opinion the
observations are not apposite to the present controversy.
D
28. In the result the application must succeed. Accordingly, ~

I appoint Hon'ble Mr. Justice R.C.Lahoti(Ex.CJI) as the sole
Arbitrator to arbitrate upon the disputes which have arisen
between the parties hereto as set out in the present application.
The sole Arbitrator would be entitled to decide upon the

.
E
procedure to be followed in the arbitration proceedings, sittings
of the proceedings as also to settle his fees in respect thereof.
However, the law governing the contract would be the
Californian Law. ... /:",•

F 29. The application is accordingly allowed.

N.J. Arbitration Application allowed.