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Mankastu Impex Private Limited v. Airvisual Limited, 2020 SCC Online SC 301.
The Game of Seat Continues in Mankastu Impex Pvt. Ltd. v. Airvisual Ltd.: The Unsettled Discourse between The Seat and Venue of Arbitration
Facts of Mankastu Case
In the Mankastu case, the contest goal statement between the gatherings indicated that the agreement between the gatherings would be represented by Indian laws, and the courts of New Delhi would have purview over arbitral procedures. The condition further indicated that in the event that any debate, controversy, contrast that emerged then it was to be settled by arbitration which would be regulated in Hong Kong. The statement further said that the place of arbitration would be Hong Kong. The debate goal provision likewise conceded parties the option to look for starter injunctive reliefs from the courts having purview before, during, or after the pendency of any arbitration agreement.
After question emerged between the gatherings, the Petitioner (Mankastu) approach the Delhi High Court and documented an appeal under Section 9 of the Act looking for interval alleviation and even got a break request in support of its and afterward it moved toward the Apex Court under Section 11(6) of the Arbitration and Conciliation Act for the arrangement of a sole mediator.
The issue before the Court
The inquiry before the Supreme Court of India was that whether the gatherings had concurred that the seat of arbitration is in Hong Kong and do the Supreme Court needed locale to engage the appeal?
Contentions of the Parties
Mankato fought that since in the arbitration agreement Indian law was chosen as the administering law and courts at New Delhi had purview, henceforth, the seat of arbitration was New Delhi, and appropriately, the Supreme Court could name a sole mediator. It further said that Hong Kong was just the setting of arbitration and hence can't be the seat of arbitration and depended upon the Hardy Exploration case for this reason. Then again, Airvisual fought that since the arbitration agreement read that the place of arbitration will be Hong Kong and such arbitration procedures will be directed in Hong Kong, the seat of arbitration was Hong Kong. As needs are, Indian courts had no ward to select a sole referee. It depended on the judgment given in the Soma JV case for this reason.
In the reaction to the above dispute of the respondent, Mankastu inaccurately contended that since the Hardy Exploration case and Soma JV case were the two decisions from a three-judge seat, Soma JV couldn't have concluded that Hardy Exploration was per incuriam and therefore Hardy Exploration case kept on being acceptable in law.
Judgment
The Court set out that, the utilization of the articulation "place of arbitration" couldn't choose the expectation of the gatherings to assign that place as the seat of arbitration and such a goal must be resolved from other statements in the agreement between the gatherings and their leaders. The Supreme Court held that the decision of Hong Kong as the "place of arbitration" itself didn't prompt the outcome that the gatherings had picked Hong Kong as the seat of arbitration. However, in light of the fact that the gatherings had likewise concurred that such arbitration was to be managed in Hong Kong, the Supreme Court, at last, held that the gatherings had picked Hong Kong as the seat of arbitration.
Conclusion
The outcome in the Mankastu Impex case is right insofar as Hong Kong was resolved to be the seat of arbitration, however, the Supreme Court's shirking towards attesting the situation of law set down in the Soma JV case has given occasion to feel qualms about the precedential estimation of Soma JV case. Furthermore, the Supreme Court didn't unequivocally follow the Hardy Exploration case, though, it appeared to have received a comparative methodology in arriving at its conclusion, especially by stressing the requirement for extra proof of the expectation of gatherings' rather than the simple utilization of the articulation "place of arbitration". Accordingly, it is muddled whether Hardy Exploration stays great in law or the splendid line test in Soma JV holds the field. As per me, the splendid line test set down in Soma JV is surely more clear, managed with greater objectivity, and lined up with the rule of gathering self-governance. Therefore, this controversy actually proceeds to the Supreme Court of India chooses this issue at the following reasonable chance.
This article does not intend to hurt the sentiments of any individual, community, sect, or religion, etcetera. This article is based purely on the author’s personal opinion and views in the exercise of the Fundamental Rights guaranteed under Article 19(1)(A) and other related laws being enforced in India for the time
- Arbitration
- Place of Arbitration
- Section 11(6) Arbitration and Conciliation Act , 1996
