The main legal point established in the judgment is that the arbitration agreement impliedly excluded the provisions of Part-I of the Arbitration and Conciliation Act, 1996, as it was subject to the Rules of The Refined Sugar Association, London and governed by English Law.

Dr.D.Y.Chandrachud, J.

1. Admit. By consent of the learned counsel and at their request the Appeal is taken up for hearing and final disposal.

2. The appeal arises from a judgment of a Learned Single Judge dated 15 November 2011, holding that this Court had no jurisdiction to entertain a challenge to the award of an arbitral tribunal constituted by the Refined Sugar Association, London. The appeal relates to the period prior to the applicability of the judgment of the Supreme Court in Bharat Alluminium Company Vs. Kaiser Alluminium Technical Services Inc. (BALCO). (2012) 9 SCC 552 In the decision in BALCO, the Supreme Court held that Part-I of the Arbitration and Conciliation Act, 1996, would have no application to international commercial arbitration held outside India. In holding this, the Supreme Court overruled the earlier judgment in Bhatia International vs. Bulk Trading S.A.(2002) 4 SCC 105However, the Constitution Bench of the Supreme Court has held and directed that the law now declared by the Court shall apply prospectively to all arbitration agreements executed thereafter. The arbitration agreement in the present case, was admittedly entered into before the judgment of the Constitution Bench. The rights and obligations of the parties, in so far as the appeal is concerned, are, therefore, governed by the regime which prevailed as long as the judgment of the Supreme Court in Bhatia International held the field. The decision in Bhatia International had taken the view that the provisions of Part-I of the Arbitration and Conciliation Act, 1996, would apply to international commercial arbitration held out of India “unless the parties by agreement, express or implied, exclude all or any of its provisions at para 32 page 123.Theissue which falls for determination in the appeal is whether parties in this case by their agreement, express or implied, have excluded all or any of the provisions of Part-I of the Act of 1996.

3. The Appellant is an Indian Company which carries on the business of import and export of sugar among other commodities. The Respondent is a Swiss Company with whom the Appellant entered into an agreement on 12 January 2010 for the purchase of 2700 metric tons of Brazilian white sugar of a stipulated description. The sugar was to be shipped between 15 January 2010 and 15 February 2010 at the option of the seller, the Respondent. The port of destination was to be Nhava Sheva or Kolkata at the option of the Appellant. Disputes arose between the parties. The agreement between the parties contained inter alia the following terms and conditions:

“Terms and conditions:

This Contract is subject to the Rules of The Refined Sugar Association, London as fully as if the same had been expressly inserted herein, whether or not either or both parties to it are Members of the Association.

If any provision of this Contract is inconsistent with the Rules, such provision shall prevail.”

Parties envisaged that all disputes would be submitted to arbitration. The arbitration agreement was thus:

“Arbitration: All disputes arising out of or in conjunction with this Contract shall be referred to The Refined Sugar Association, London for settlement in accordance with the Rules relating to Arbitration. This Contract shall be governed by and construed in accordance with English Law.”

A final award was passed by the arbitral tribunal on 31 December 2010 which was sought to be challenged by the Appellant in proceedings under Section34 of the Act of 1996 before the Learned Single Judge of this Court. An objection was taken to the jurisdiction of this Court to entertain the petition on the ground that the applicability of Part-I of the Act was excluded by the agreement between the parties and consequently even under the law as it then prevailed in Bhatia International, a Petition under Section 34 was not maintainable. The Learned Single Judge has upheld the objection and has come to the conclusion that this Court has no jur