The limitation law is procedural and part of the curial law, and the court upheld the foreign Award and rejected the objections to its enforcement.

Introduction

1. These petitions arise out of a foreign Award dated 14th October 2011. The successful party in the arbitral proceedings NNR Global Logistics (Shanghai) Co. Ltd. (‘NNR’) has filed OMP No. 61 of 2012 under Sections 47 and 49 of the Arbitration and Conciliation Act, 1996 (‘Act’) seeking enforcement of the foreign Award. In the said petition, the unsuccessful party Aargus Global Logistics Pvt. Ltd. (‘Aargus’) has filed objections under Section 48 of the Act. Aargus has also filed OMP No. 201 of 2012 under Section 34 of the Act seeking the setting aside of the foreign Award. The grounds for setting aside the foreign Award are identical to the grounds urged by Aargus in the objection to the enforcement petition, i.e., OMP No. 61 of 2012.

Background

1. 2. The background to the petitions is that Aargus is a company incorporated in India having its registered office in Delhi and is engaged in the business of freight forwarding and associated international cargo services in India and abroad. NNR is a company incorporated under the laws of Peoples Republic of China having its head office in Shanghai. NNR is a joint venture between NNR Global Logistics (Japan) and Shanghai YUD International Forwarding Co. Ltd. NNR is engaged in the business of international freight forwarding and other international cargo services.

2. 3. An agency agreement was executed on 15th October 2003 between NNR and Aargus in terms of which both Aargus and NNR were to act as each other’s nonexclusive agent in the business of freight forwarding and associated international cargo. Each party was to make efforts to increase air freight/sea freight shipments and to promote and develop related activities between their respective territories. They were to share air freight profit and were to provide and assist each other on various aspects of shipping goods.

3. 4. The agency agreement contained the following arbitration clause:

“10. Arbitration

In any dispute arise in connection with this agreement, both parties shall make their best effort to settle it amicably. However, if said efforts have been exhausted such disputes shall be finally settled under the rules of conciliation and arbitration of the International Chambers of Commerce. In witness whereof, the parties have set their hands on the day, month and year written above.”

1. 5. There was no agreement between the parties on the place of arbitration. While NNR suggested any neutral venue, preferably Kuala Lumpur (‘KL’) in Malaysia, and that “in order to save costs and for convenience, the hearing may be held in New Delhi”, Aargus by its letter dated 22nd September 2010 objected to the seat of arbitration being KL. Subsequently, the International Chamber of Commerce (‘ICC’) fixed the seat of arbitration at KL in Malaysia under Article 14 (1) of the ICC Rules. Consequently, the arbitration took place at KL in Malaysia and the impugned foreign Award was passed by the learned sole Arbitrator allowing the claims of NNR.

2. 6. It is stated that the first shipment commenced on 28th October 2003 and continued up to 25th September 2007. According to Aargus, NNR started acting contrary to the terms of the contract from 2005 onwards. It is alleged that NNR continued to raise several invoices contrary to the terms of the contract and attempts on settlement had failed. On 2nd July 2010 NNR invoked the arbitration clause and raised disputes before

the ICC. In its letter dated 2nd July 2010 NNR stated that “in view of the fact that the closest connection of the Agreement is with India, Indian law may be applied as the substantive law of the Agreement and the arbitration may be held in the English language. However, the arbitration agreement itself would be exclusively governed by the laws of Malaysia.”

Challenge to a foreign Award under Section 34 of the Act

7. One of the preliminary objections raised by NNR to the petition (OMP No. 201 of 2012) under Section 34 of the Act is that in order for it to be mai