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02 June 2021, Wednesday

3 years ago

2. Choosing foreign law or foreign “seat/venue” is not “agreement to the contrary” under Section 9 ACA (Madras High Court)

02 June 2021 | Aapico Investment Pte. Limited v. Manickam Mahalingam | PT Asha J | 2021 SCC OnLine Mad 2037

A deed of personal guarantee provided that: (i) it would be governed by the laws of England and Wales, (ii) any dispute shall be resolved by arbitration under the rules of the Singapore International Arbitration Centre (“SIAC”), (iii) the place of arbitration shall be Singapore.

The petitioner’s application under Section 9 ACA was resisted on the assertion that there was an implied agreement not to apply Section 9 ACA: hence, the Indian courts did not have jurisdiction. Rejecting the submission, PT Asha J ruled that:

  1. Because of the Proviso to Section 2(2) ACA, some other provisions, that is, Sections 9, 27, 37 (1) (a) and 37 (3) of ACA, apply even to foreign seated arbitration.
  2. An agreement to the contrary should be “specific”. For example, general terms concerning the laws governing the contract, or the arbitration agreement, or the seat/venue are not contrary agreements.

Access the judgment here.

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Categories: Agreement to the Contrary | Interim Measures Against Non-Signatory | Interim Measures by Court | Interim Measures in Foreign Seated Arbitration | Jurisdiction | Jurisdiction in Foreign Seated Arbitration | Part I | Section 2 (2) ACA | Section 9 ACA

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