Ashim Kumar Banerjee. J.

Private International Law is a subject, less cultivated in Indian judiciary, yet the learned Judge considered all the relevant precedents so far delivered by Indian judiciary as well as abroad. Learned Judge also considered comments of various authors on the subject. The judgment and order impugned runs in 200 (two hundred) pages, full of discussions of the law on the subject backed up by thorough research. The judgment is unique having distinguishing feature. Whether we would agree with the ultimate finding or not, would be a different consideration that we would be venturing very soon. At the outset, we must praise the learned Judge for a painstaking effort to present a piece that would be worth reading.

BACKDROP:

Coal India Limited (hereinafter referred to as ‘CIL’) a wholly owned public sector undertaking entered into a contract with a foreign party being Canadian Commercial Corporation (hereinafter referred to as ‘CCC’), another public sector organization, established by the Act of Parliament of Canada being wholly owned by Crown Corporation of Canada. Under the contract, CCC was to develop Rajmahal-A, opencast coal mine. They would be managing the said coal mine and develop the mining system. Dispute arose between two parties that the parties referred to arbitration as per the agreement. Clause 34 would prescribe the procedure for an alternate dispute resolution of the dispute. The said clause is quoted below:

“34.0 DISPUTES

34.1 The Parties mutually agree that in the event of a dispute of any nature whatsoever, related directly or indirectly to this Contract, they shall use every means at their disposal to settle said disputes on an amicable basis.

34.2 Should the Parties fail to reach an agreement within thirty(30) days after the dispute arises or any such greater period as may be mutually agreed upon the dispute may be submitted by either. Party to Arbitration for final settlement under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris, France, by one or more arbitrators appointed in accordance with the Rules.

34.3 Said arbitration shall be held in Geneva, Switzerland and be conducted in the English Language.

34.4 The Parties mutually agree that if the decision rendered as a result of the aforementioned conciliation or arbitration involves the payment of compensation, the amount of such compensation shall be expressed and payable in Dollars.

34.5 Both Parties shall make Endeavour’s not to delay the arbitration proceedings. The decision of the arbitrator(s) shall be final and binding on both the parties. Enforcement thereof may be entered in any court having jurisdiction.”

One more clause, apparently in conflict, being Clause 32 is also quoted below: “GOVERNING LAW

This Contract shall be subject to and governed by the laws in force in India.”

CIL nominated a former Judge of the Apex Court as their nominee Arbitrator whereas CCC nominated another Arbitrator. Under Clause 34 the International Chamber of Commerce (hereinafter referred to as ‘ICC’), Paris was to name the third Arbitrator. Accordingly, ICC nominated the third Arbitrator and the Arbitral Tribunal was thus constituted. There had been protracted litigations in the mean time that may not be relevant for the purpose of the present case. CIL became aggrieved by the final award published by the Tribunal. They applied before this Court for setting aside of the award by invoking Section 48 read with Section 34 of the Arbitration and Conciliation Act 1996 and Sections 47 and 151 of the Code of Civil Procedure, 1908. The learned Single Judge upon hearing the contentions rejected the application, holding it not maintainable by His Lordship’s two hundred pages judgment and order delivered on the 6th day of conclusion of hearing. Significant to note, the hearing was concluded on March 15, 2012 whereas His Lordship delivered the judgment on March 20, 2012. We appreciate.

Being aggrieved,