I.P. Mukerji, J.

1. This court heard an application (G.A. No. 211 of 2017), taken out by the respondent No. 1, Chatterjee Petrochem (Mauritius) Co. in an application (A.P. No. 1046 of 2016) to set aside a partial final award made by an arbitral tribunal, signed and delivered in Paris on 9th September, 2016. The application asked for dismissal of the setting aside application on the ground that this court and as a matter fact the courts in India had no jurisdiction to entertain try and determine it. The grounds were that the award dated 9th September, 2016 was a foreign award. It was made in a foreign seated arbitration. The seat was in Paris. The rules of the International Chamber of Commerce (ICC), International Court of Arbitration applied.

2. All sittings of the arbitration were held in Paris. The arbitration was conducted according to the rules of arbitration of this Chamber.

3. The arbitral tribunal consisted of three learned arbitrators, Professor David A.R. Williams QC, (President), Mr. Peter Lever QC and Mr. Justice (Retd.) Bellur N. Srikrishna.

4. This arbitral proceeding arose out of an agreement dated 12th January, 2002 between the parties which provided that the majority shareholding and control of Haldia Petrochemicals Limited would be transferred to Chatterjee Petrochem (Mauritius) Co. by the Government of West Bengal and West Bengal Industrial Development Corporation Limited.

5. The said agreement contained an arbitration clause which is as follows:

"In respect of all disputes, differences, claims and questions between the parties hereto arising out of this JVA or in any way relating to this document or any term, condition or provision herein mentioned or construction or interpretation thereof as to the working of HPL or in any way relating to the business of the affairs of HPL, the parties shall first endeavour to settle such disputes, differences, claims or questions by friendly consultation and failing such settlement, disputes or differences will be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC) Court of Arbitration. The venue of Arbitration will be in Paris and the law applicable to the contract will be Indian Law."

6. Three clauses in this arbitration agreement are most important:

"(i) The disputes between the parties would be settled by arbitration in accordance with the rules of arbitration of the International Chamber of Commerce (ICC) the court of arbitration.

(ii) The venue of the arbitration would be Paris.

(iii) The law applicable to the contract would be Indian Law."

7. In determining this application the hands of this court are tied by the judgment of the Supreme Court in the case of Bharat Aluminium Company vs. Kaiser Aluminium Technical Services INC, (2012) 9 SCC 552. The Supreme Court said that the law declared in that case would apply to all arbitration agreements executed thereafter. Therefore, the law that is to be the backbone of this decision is the judgment of the Supreme Court in Bhatia International vs. Bulk Trading S.A. and Another, (2002) 4 SCC 105 which was reversed by the court in the BALCO case, with the above rider.

THE RATIO IN THE CASE OF BHATIA:

8. It said that Section 2 (2) of the Arbitration and Conciliation Act, 1996 provided that it would apply where the place of arbitration was in India. It did not say that it would not apply where the place of arbitration was not in India. Neither did it say that part-I would apply only where the place of arbitration was in India. Hence, it could not be said that part-I was not to apply to arbitration which took place outside India. Therefore, on construction of sub-Section 2 of Section 2 part-I compulsorily applied to arbitration including International Commercial Arbitration held in India. Part-I would also apply to International Commercial Arbitration held outside of India, unless the parties expressly or impliedly excluded its operation. An award made in an International Commercial Arbi