M/S DOZCO INDIA P. LTD.versusM/S DOOSAN INFRACORE CO. LTD.

                    [2010] 12 S.C.R. 259


                 MIS DOZCO INDIA P. LTD.                          A
                              v.
           MIS DOOSAN INFRACORE CO. LTD.
            (Arbitration Petition No. 5 of 2008)

                    OCTOBER 08, 2010
                                                                  B
                   [V.5. SIRPURKAR, J.]

      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.
                                                                  G
    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                                  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
                                                                  B
 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
 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 13]
 [270-F-H; ,271-A-B; 27 4-B-C]
                                                                  E
       3.3 A clear language of Articles 22 and 23 of the
  Disb"ibutorship Agreement between the parties spells out
  a clear agreement between the parties excluding Part I of
  the Act. Since the interpretation of Article 23.1 suggests
  that the law governing the arbitration will be Korean law       F
  and the seat of arbitration will be Seoul in Korea, there
  will be no question of applicability of Section 11 (6) of the
, Act and the appointment of Arbitrator in terms of that
  provision. [Para 13] [274-C-G] .

      Bhatia International v. Bulk Trading S.A. & Anr. 2002(4) G
 SCC 105; lndtel Technical Services Private Ltd. v. W.S. Atkins.
 Rail Ltd. 2008(1) SCC 308; Citation lnfowares Ltd. v. Equinox
 Corporation 2009 (7) SCC 220 held in applicable.

     Naviera Amozonica Peruafla S.A. v. Compania                  H
    262       SUPREME COURT REPORTS               [2010] 12 S.C.R.


A lntemationacional De Seguros Del Peru 1998 Vol.1 Lloyd's
  Law Reports - referred to.

                          Case Law Refernce:
          1998 (1) sec 305         Relied on.            Para 12
B
          1992 (3) sec 551         Referred to.          Para 12
          2001 (1 O) sec 151       Referred to.          Para 13

      1998 Vol.1 Lloyd's Law Reports                     Referred
C to.                       Para 13
          2002(4) sec 105          Held inapplicable     Para 13
          2008 (10) sec 308        Held inapplicable     Para 13
          2009 (7) sec 220         Held inapplicable     Para 13
D
        ORIGINAL JURISDICTION : Arbitration Petition No. 5 of
    2008.

          V. Mohan and Abhishek Kaushik for the Petitioner.

E       Gurukrishna Kumar and Srikala Gurukrishan Kumar for the
    Respondent.

          The Judgment of the Court was delivered by

        V.S. SIRPURKAR, J. 1. This is a petition under section
F 11 (6) of the Arbitration and Conciliation Act (hereinafter called
  'the Act'). While the petitioner is registered under the
  Companies Act, 1956, the respondent is a company
  incorporated in Seoul, South Korea with its principle place at
  Seoul. The disputes have arisen in between these two
G companies out of a Distributorship Agreement which was
  entered between the parties on 2.2.2004. By this, the petitioner
  was to be the exclusive distributor of the respondent in India
  and Bhutan for its products like Excavators, Wheel Loaders etc.
  Article 23 of the Distributorship Agreement provides for the
H
DOZCO INDIA P. LTD. v. DOOSAN INFRACORE CO. 263
          LTD. [V.S. SIRPURKAR, J.]
resolution of disputes by arbitration. Since the disputes have        A
arisen in between the two companies and since one of the
companies is based in Seoul, South Korea, the present petition
has been filed treating this to be an international arbitration.
There is no dispute between the parties that this will be the
international arbitration on the basis of the arbitration Clause      8
being Article 23 of the Distributorship Agreement.

    2. There is also no dispute that the disputes have arisen
between the parties on account of which the respondent
purported to terminate the Agreement entered into between
them. In pursuance of the disputes, the petitioner issued notice      C
dated 01.09.2007 for appointment of an Arbitrator to resolve
the disputes arisen between the parties. However, that not
having been done, the present petition is necessitated.

      3. Since the parties have not disputed about the existence      D
of the arbitration clause, a live issue on account of the existence
of the disputes, there would be no question of recording any
finding. However, for putting the record straight, the issues as
raised by the petitioner are as follows:

             "1.   whether the premature and whether allegedly        E
                   premature and unilateral termination of the
                   distributorship agreement by the respondent
                   is valid in law.

             2.    whether the various contentions raised by          F
                   respondent for terminating the distributorship
                   agreement are valid in law

             3.     whether the respondent are right in
                   ·unilaterally raising the price of the products    G
                    in the middle of the year

             4.    whether the respondent is right in unilaterally
                   controlling the supplies to the petitioner

             5.    whether the respondent is stopped from its         H
    264       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A                      promise to the petitioner to appoint them as
                       national dealer for 10 years

                 6.    whether the respondents are liable for
                       damages to petitioner for breach"

B      4. The petition is countered on behalf of the respondent
  who opposes the same on account of maintainability. According
  to the respondent, only the Rules of Arbitration of International
  Chamber of Commerce would apply in accordance with the
  Agreement between the parties. It is contended by the
C respondent that this Court will have no jurisdiction much less
  under Section 11 (6) of the Act to appoint Arbitrator, particularly,
  because it has been specifically agreed in Article 22 and 23
  which are as under:

          "Article 22. Governing Laws - 22. 1 : This agreement shall
D
          be governed by and construed in accordance with the laws
          of The Republic of Korea.

          Article 23. Arbitration - 23.1 : All disputes arising in
          connection with this Agreement shall be finally settled by
E         arbitration in Seoul, Korea (or such other place as the
          parties may agree in writing), pursuant to the rules of
          agreement then in force of the International Chamber of
          Commerce (emphasis supplied)"

F       5. The respondent, therefore, contended that the petitioner
  would not be entitled to maintain the present proceedings in
  India by invoking the provisions of the Act. The respondent
  specifically disputes the stand of the petitioner that there is
  nothing in the Agreement to deny the applicability of Indian
  procedural law seeking appointment of Arbitrator. The
G respondent also specifically contended that there is express
  exclusion of Indian Courts and/or the applicability of the Act.
  Their basic contention was that under the relevant clauses the
  jurisdiction of the Indian Courts is specifically outstayed. This
  is particularly because it is specifically provided in Clause 23
H
 DOZCO INDIA P. LTD. v. DOOSAN INFRACORE CO. 265
           LTD. [V.S. SIRPURKAR, J.]
that there is an express agreement to get the disputes settled       A
by arbitration in Seoul in terms of the Rules of Arbitration of
International Chamber of Commerce, Paris. The respondent in
its Counter has relied on Article 4 of the Rules of Arbitration of
International Chamber of Commerce.
                                                                     B
     6. It seems that previously an application was filed under
Section 9 of the Act before the Madras High Court seeking
interim injunction restraining the respondents, their men and
agents from in any manner dealing with their products in India
directly till the conclusion of the arbitral proceedings. It was C
pointed out that there was an ex parte order of ad interim
injunction by the High Court on 8.5.2008. However, when the
respondent moved an application for vacating the ex parte
order, the respondent had specifically contended that the Courts
at Chennai had no jurisdiction to entertain the application. It was, D
pointed out that the respondent's application for vacating the
injunction was allowed by the Madras High Court by its order
dated 9.6.2008. However, in its order, it seems that the Madras
High Court clarified that the question relating to the jurisdiction
of the Court was left open by the parties to be decided at a
later stage. It also recorded a finding that it was not necessary E
for it to go into the question of jurisdiction for the purpose of
considering the injunction application. The respondent has filed
the said order before this Court along with the application under
Section 9.
                                                                     F
     7. From the rival contentions raised, the only issue is
whether this Court would be justified and would have the
jurisdiction to appoint an Arbitrator under Section 11 (6) of the
Act.

     8. Ms. Mahana, learned Counsel appearing on behalf of           G
the petitioner, heavily relied on a few judgments of this Court,
namely, Bhatia International v. Bulk Trading S.A. & Anr.
[2002(4) SCC 105], lndtel Technical Services Private Ltd. v.
W. S. Atkins Rail Ltd. [2008 (10) SCC 308] and Citation
lnfowares Ltd. v. Equinox Corporation [2009 (7) SCC 220]. All        H
    266      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A these cases, according to her have settled the law holding that
  even in case of international commercial arbitration which are
  to be held out of India and to be governed by foreign law, the
  provisions of Part I of the Act would still apply unless the parties
  by agreement, express or implied, excludes all or any of
B provisions of Part I of the Act. She has also drawn the attention
  of the Court to another decision of this Court in National
  Thermal Power Corporation v. Singer Company & Ors. [1992
  (3) SCC 551]. The attention of the Court was also invited to
  the language of the decision in CMG Ltd. v. Unit Trust of India
c & Ors. [2007 (10) sec 751). There are some other rulings
  which are relied upon by the learned Counsel. The main
  contention, however, is based on paragraph 32 of the decision
  in Bhatia International v. Bulk Trading S.A. & Anr. (cited supra)
  as also paragraph 36 of the decision in lndtel Technical
    Services Private Ltd. v. WS. Atkins Rail Ltd. (cited supra),
0
    where reliance was placed on the decision in Bhatia
    International v. Bulk Trading S.A. & Anr. (cited supra) which
  is decision rendered by a Three Judge Bench. The attention
  of the Court was also invited to paragraphs 30, 31 and 36 as
  also to paragraphs 35, 38 of that judgment where the decision
E in Bhatia International v. Bulk Trading S.A. & Anr. (cited supra)
  was relied upon. From all these three judgments, it becomes
  clear that unless the jurisdiction of the Indian Courts is not
  specifically excluded at least Part I of the Act whereunder there
  is a power to appoint Arbitrator is covered by Section 11 (6)
F of the Act, this Court would have jurisdiction to appoint an
  Arbitrator even if the arbitration is to be governed by foreign
  law.

        9. Shri Gurukrishna Kumar, learned Counsel for the
G respondent, however, while opposing this plea urged that in this
  case and, more particularly, in paragraph 23 such exclusion can
  be specifically seen. He has compared the language of Clause
  23, more particularly, with the jurisdictional cause which had
  fallen for consideration in Citation lnfowares Ltd. v. Equinox
H Corporation (supra). The learned Counsel also argued that the
DOZCO INDIA P. LTD. v. DOOSAN INFRACORE CO. 267
          LTD. [V.S. SIRPURKAR, J.]

bracketed portion in Article 23 cannot be interpreted so as to       A
mean that the seat of arbitration could be anywhere else as per
the choice of the parties. He pointed out that the bracketed
portion is only for the purpose of providing the convenience of
holding proceedings of the arbitration else where than Seoul.
However, that cannot be allowed to override the main Clause          B
of Article 23. The learned Counsel has contended that the law
laid down in Bhatia International V; Bulk Trading S.A. & Anr.
(citetl supra) and the subsequent decisions would not be
applicable. The learned Counsel relied on Sumitomo Heavy
Industries Ltd. v. ONGC Ltd. & Ors. [1998 (1) SCC 305]. He           C
also relied on a decision reported as Naviera Amozonica
Peruana S.A. v. Compania lnternationacional De Seguros
Del PertJ [1998] Vol.1 Lloyd's Law Reports.

     10. The learned Counsel earnestly argued that there is
distinction between a legal seat of the arbitration and D
geographically convenient location for holding proceedings and
that is a common feature of international arbitration. He also ,
relied on a passage in Redfern and Hunter which runs as
under:
                                                                      E
     "The preceding discussion has been on the basis that
     there is only one 'place' of arbitration. This will be the place
     chosen by or on behalf of the parties and it will be
     designated in the arbitration agreement or the terms of
     reference or the minutes of proceedings or in some other
                                                                      F
     was as the place of 'seat' of the arbitration. This does not
     mean, however, that the arbitral Tribunal must hold all its
     meeting or hearings at the place of arbitration.
     International commercial arbitration often involves
     people of many different nationalities, from different
     countries. In these circumstances, it is by no means G
     unusual for an arbitral Tribunal to hold meeting- or even
     hearing - in a place other than the designated place of
     arbitration, either for its own convenience or for the
     convenience of the parties or their witnesses ... It may be
                                                                      H
    268       SUPREME COURT REPORTS                [2010} 12 S.C.R.


A         more convenient for an arbitral tribunal sitting in one
          country to conduct a hearing in another country - for
          instance for the purpose of taking evidence . . . In such
          circumstances, each move of the arbitral Tribunal does
          not if itself mean that the seat of arbitration changes. The
8         seat of the arbitration remain the place initially agreed
          by or on behalf of the parties" (Emphasis supplied)

        11. According to 11im, as per the Agreement between the
  parties, it is clear that the partie::; have chosen the proper law
  of contract as also the arbitration agreement to be Korean law
C with a seat of arbitration in Seoul, South Korea and the
  arbitration law being conducted in accordance with exhaustive
  Rules of the International Chamber of Commerce.

          12. On the back:drop of these conflicting claims, the
o   question boils down to as to what is the true interpretation of
    Article 23. This Article 23 will have to be read in the backdrop
    of Article 22 and more particularly, Article 22.1. It is clear from
    the language of Artich: 22.1 that the whole Agreement would
    be governed by and construed in accordance with the laws of
E   The Republic of Korea. It is for this reason that the respondent
    heavily relied on the! law laid down in Sumitomo Heavy
    Industries Ltd. v. ONGC Ltd. & Ors. (cited supra). This judgment
    is a complete authority on the proposition that the arbitrability
    of the dispute is to be determined in terms of the law governing
F   arbitration agreement and the arbitration proceedings has to
    be conducted in accordance with the curial law. This Court, in
    that judgment, relying on Mustill and Boyd (the Law and
    Practice of Commercial Arbitration in England, 2nd Edition},
    observed in paragraph 15 that where the law governing the
    conduct of the reference is different from the law governing the
G   underlying arbitration agreement, the Court looks to the
    arbitration agreement to see if the dispute is arbitrable, then
    to the curial law to see how the reference should be conducted
    and then returns to the first law in order to give effect to the
    resulting award. In paragraph 16, this Court, in no uncertain
H   terms, declared th~t the law which would apply to the filing of
 DOZCO INDIA P. LTD. v. DOOSAN INFRACORE CO. 269
           LTD. [V.S. SIRPURKAR, J.]
the award, to its enforcement and to its setting aside would be         A
the law governing the agreement to arbitrate and the
performance of that agreement. The Court relied on the
observations in Mustill and Boyd to the effect:-

    "lt may, therefore, be seen that proplems arising out of an         8
    arbitration may, at least in theory, call for the application
    of any one or more of the following laws -

      1.   The proper law of the contract, i.e. the law governing
           the contract which creates the substantive rights of
           the parties, in respect of which the dispute has             C
           arisen.

      2.   The proper law of the arbitration agreement, i.e. the
           law governing the obligation of the parties to submit
           the disputes to arbitration, and to honour an award.         D

      3.    The curial Jaw, i.e. the Jaw governing the conduct
            of the individual reference.

                           )()()()()( )()()()()( )()()()()(

                                                                        E
      1.    The proper Jaw of the arbitration agreement
           governs the validity of the arbitration agreement,
           the question whether a dispute lies within the scope
           of the arbitration agreement; the validity of the
           notice of arbitration; the Constitution of the tribunal;
                                                                        F
           the question whether an award lies within the
           jurisdiction of the arbitrator; the formal validity of the
           award; the question whether the parties have been
           discharged from any obligation to arbitrate future
           disputes.
                                                                        G
     2.    The curial law governs; the manner in which the
           reference is to be conducted; the procedural
           powers and duties of the arbitrator; questions of
           evidence; the determination of the proper law of
           the contract.                                                H
    270         SUPREME COURT REPORTS              [2010] 12 S.C.R.

A          3.    The proper law of the reference governs: the
                 question whether the parties have been discharged
                 from their obligation to continue with the reference
                 of the individual dispute." (Emphasis supplied)

B       The following para~1raph from Mustilf and Boyd is extremely
    important for the decision of this case:-

          "ln the absence of express agreement, there is a strong
          prima facie presumption that the parties intend the curial
          law to be the law of the 'seat' of.the arbitration, i.e. the
C         place at which the arbitration is to be conducted, on the
          ground that that is the country most closely connected with
          the proceedings. So in order to determine the curial law
          in the absence of .an express choice by the parties it is
          first necessary to determine the seat of the arbitration, by
D         construing the agreement to arbitrate."

        In paragraphs 15 and 16, this Court has heavily relied on
  the observations quoted above. If we see the language of Article
  23.1 in the light of the Article 22.1, it is clear that the parties
E had agreed that the disputes arising out of the Agreement
  between them would be finally settled by the arbitration in
  Seoul, Korea. Not only that, but the rules of arbitration to be
  made applicable were the Rules of International Chamber of
  Commerce. This gives the prima facie impression that the seat
  of arbitration was only in Seoul, South Korea. However, Ms.
F Mohana, learned Counse!I appearing on behalf of the petitioner
  drew our attention to the bracketed portion and contended that
  because of the bracketed portion which is to the effect "or such
  other place as the parties may agree in writing", the seat could
  be elsewhere also. It is based on this that Ms. Mohana
G contended that, therefore, there is no express exclusion of Part
  I of the Act. It is not possible to accept this contention for the
  simple reason that a bracket could not be allowed to control
  the main clause. Bracketed portion is only for the purposes of
  further explanation. In my opinion, Shri Gurukrishna Kumar,
H learned Counsel appearing on behalf of the respondent, is right
    DOZCO INDIA P. LTD. v. DOOSAN INFRACORE CO. 271
              LTD. [V.S. SIRPURKAR, J.]
•   in contending that the bracketed portion is meant only for the        A
    convenience of the arbitral Tribunal and/or the parties for
    conducting the proceedings of the arbitration, but the 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. If there is such       B
    exclusion, then the law laid down in Bhatia International v. Bulk
    Trading S.A. & Anr. (cited supra) must apply holding:-

         "In cases of international commercial arbitrations held out
         of India provisions of Part I would apply unless the parties     C
         by agreement, express or implied, exclude all or any of its
         provisions. In that case, the laws or rules chosen by the
         parties would prevail. Any provision in Part I, which is
         contrary to or excluded by that law or rules will not apply."

         Even in lndtel Technical Services Private Ltd. v. W S.           D
    Atkins Rail Ltd. (cited supra), the parties had not chosen the
    law governing the arbitration procedure including the seat/venue
    of arbitration and it was, therefore, that the Court went on to
    exercise the jurisdiction under Section 11 (6) of the Act. It was
    specifically found therein that there was no exclusion of the         E
    provisions of the Act by the parties either expressly or impliedly,
    which is clear from the observations made in the paragraph 37
    of that judgment.

         13. Ms. Mohana, learned Counsel appearing on behalf of
    the petitioner, however, very heavily relied on the decision in · F
    Citation lnfowares Ltd. v. Equinox Corporation (cited supra).
    There also, the parties had agreed to be governed by the laws
    of California, USA. The learned Counsel invited our attention
    to the Clause 10.1 of the agreement therein, which runs as
    under:-                                                           G

          "10.1 Governing law: This agreement shall be 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    H
    272       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A                be referred for arbitration to a mutually agreed
                 arbitrator."

         Ms. Mohana further submitted that the language of this
    Clause is quite comparable to Article 23.1 of the Distributorship
    Agreement between t11e parties in this case, whereas, Shri
B   Gurukrishna Kumar, learned Counsel for the respondent
    contended that there is essential difference in the language of
    both the Clauses. He pointed out that the language of Article
    23.1, in contradistinction with the Clause 10.1 in the case of
    Citation lnfowares Ltd. v. Equinox Corporation (cited supra),
C   clearly spells out that the seat of the arbitration was agreed to
    be in Seoul, Korea and thereby, there would be express
    exclusion of Part I of the Act. In my opinion, there is essential
    difference between the clauses referred to in the case of
    Citation lnfowares Ltd. v. Equinox Corporation (cited supra)
D   as also in lndtel Technical Services Private Ltd. v. W S. Atkins
    Rail Ltd. (cited supra) on one hand and Article 23.1 in the
    present case, on the other. Shri Gurukrishna Kumar rightly
    pointed out that the advantage of bracketed portion cannot be
    taken, particularly, in view of the decision in Naviera
E   Amozonica Peruana S.A. v. Compania lnternationacional De
    Seguros Del Peru (cited supra), wherein it was held:-

          "All contracts which provide for arbitration and contain a
          foreign element may involve three potentially relevant
          systems of law: (a) the law governing the substantive
F         contract; (2) the law governing the agreement to arbitrate
          and the performance of that agreement; (3) the law
          governing the conduct of the arbitration. In the majority of
          the cases all three will be the same, but (1) will often be
          different from (2) and (3) and occasionally, but rarely, (2)
G         may also differ from (3)".

       That is exactly the case here. The language of Article 23.1
  clearly suggests that all the three laws are the laws of The
  Republic of Korea with the seat of the arbitration in Seoul,
H Korea and the arbitration to be conducted in accordance with
DOZCO INDIA P. LTD. v. DOOSAN INFRACORE CO. 273
          LTD. [V.S. SIRPURKAR, J.]
the rules of International Chamber of Commerce. In respect of         A
the bracketed portion, however, it is to be seen that it was
observed in that case:-

    " .... It seems clear that the submissions advanced below
    confused the legal "seat" etc. of an arbitration with the
                                                                      8
    geographically convenient place or places for holding
    hearings. This distinction is nowadays a common feature
    of international arbitrations and is helpfully explained in.
    Redfern and Hunter in the following passage under the
    heading "The Place of Arbitration":
                                                                      c
           The preceding discussion has been on the basis
           that there is only one "place" of arbitration. This will
           be the place chosen by or on behalf of the partie!);
           and it will be designated in the arbitration
           agreement or the terms of reference or the minutes         D
           of proceedings or in some other way as the place
           or "seat" of the arbitration. This does not mean,
           however, that the arbitral tribunal must hold all its
           meetings or hearings at the place of arbitration.
           International commercial arbitration often involves        E
           people of many different nationalities, from many
           different countries. In these circumstances, it is by
           no means unusual for an arbitral tribunal to hold
           meetings - or even hearings - in a place other than
           the designated place of arbitration, either for its own    F
           convenience or for the convenience of the parties
           or their witnesses ......... .

           It may be more convenient for an arbitral tribunal
           sitting in one country to conduct a hearing in another
           country - for instance, for the purpose of taking          G
           evidence ..... In such circumstances, each move of
           the arbitral tribunal does not of itself mean that the
           seat of the arbitration changes. The seat of the
           arbitration remains the place initially agreed by or
           on behalf of the parties.                                  H
    274        SUPREME COURT REPORTS              [2010] 12 S.C.R.


A          These aspects need to be borne in mind when one comes
           to the Judge's construction of this policy."

        It would be clear from this that the bracketed portion in the
  Article was not for deciding upon the seat of the arbitration, but
  for the convenience of the parties in case they find to hold the
8
  arbitration proceedings somewhere else than Seoul, Korea. The
  part which has been quoted above from the decision in Naviera
  Amozonica Peruana S.A. v. Compania lntemationacional De
  Seguros Del Peru (cib:!d supra) supports this inference. In that
C view, my inferences are that:-
                  1.   a clear language of Articles 22 and 23 of the
                       Distributorship Agreement between the
                       parties in this case spell out a clear
                       agreement between the parties excluding
D                      Part I of the Act.

                 2.    the law laid down in Bhatia International v.
                       Bulk Trading S.A. & Anr. (cited supra) and
                       lndtel Technical Services Private Ltd. v.
                        WS. Atkins Rail Ltd. (cited supra), as also
E
                       in Citation lnfowares Ltd. v. Equinox
                       Corporation (cited supra) is not applicable
                       to the present case.

                  3.   Since the interpretation of Article 23.1
F                      suggests that the law governing the
                       arbitration will be Korean law and the seat of
                       arbitration will be Seoul in Korea, there will
                       be no question of applicability of Section
                       11 (6) of the Act and the appointment of
G                      Arbitrator in terms of that provision.

        14. In terms of what is stated above, the petition is
    dismissed, but without any costs.

    N.J.                            Arbitration petition dismissed.
H