The enforcement of a foreign arbitral award cannot be resisted on merits, and the validity of an assignment under Sudanese law was upheld, confirming the binding nature of arbitration agreements.

JUDGMENT:

Arif S Doctor, J.

1. The present Commercial Arbitration Petition is filed under the provisions of Part II of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) and seeks enforcement of an Arbitral Award dated 27th September 2018 (“the Final Award”) passed by International Court of Arbitration, London under the provisions of ICC Arbitration Rules 2012. By the Final Award the Petitioner has been awarded a sum of Euro 2.45 million and costs.

2. Before adverting to the rival contentions, it is useful, for context to set out the following facts, viz.

i. On 30th January 2006 a Consortium Agreement was entered into between the Petitioner and the Respondent, inter alia for distribution of work and responsibilities between the Petitioner and the Respondent in respect of construction of power plants for the National Electricity Corporation of Sudan (NEC). The Respondent was the lead member of the consortium.. ii. Thereafter, on 9th May 2006, NEC and the Respondent entered into two contracts, inter alia for the design, construction, and commissioning of two thermal power plants, one located in El-Fasher, Sudan and the other in El-Genena, Sudan (“the said Contracts”). Admittedly, the applicable law[1.11.17.- Applicable Law.

The Contract Shall be governed by the Laws of Sudan applicable at the of the Contract Signature] under the said Contracts was Sudanese Law. The said Contracts also provided for arbitration[1.16.1. Arbitration of Disputes.

Any dispute arising out of or in connection with this contract, including Change order, the Total Contract Price or the Construction Schedule, shall be settled through friendly consultation or conciliation between the parties promptly upon the written request of one party to the other party. If the parties do not reach an amicable resolution within thirty (30) days from the notice of such dispute, either party may, with notice to the other party, submit the dispute to the ICA of the ICC, as the exclusive forum, for binding arbitration of the ICC shall govern the proceedings. Any settlement and award rendered through such an arbitration proceeding shall be final and binding upon the parties] which was to be held in London. Clause 1.1.16[EMPLOYER means THE NATIONAL ELCECTRICITY CORPORATION) (NEC), Sudan, its successors and assignees] of the said contracts defined Employer to mean NEC, its successors and assignees.

iii. On 5th December 2007, NEC and the Petitioner executed an addendum by and under which NEC inter alia assigned to the Petitioner all matters concerning the advance payment made by NEC to the Respondent. Thereafter on 4th March 2008, NEC authorized the Petitioner to recoup the down payments made by NEC to the Respondent under the said Contracts. NEC was subsequently dissolved, and the Sudanese State Thermal Power Generation Company (STGP) was established.

iv. On 24th December 2012 STGP and the Petitioner executed a Deed of Assignment whereby STGP assigned in favour of the Petitioner the debt of Euro 2.7 million i.e. the down payment made by NEC to the Respondent and STGP’s right against the Respondent arising out of the breaches and/or wrongful repudiation of the said contracts.

v. Thereafter arbitration proceedings commenced between the Petitioner and Respondent wherein, the Respondent raised the following preliminary issue, viz.

“Whether there exists a binding arbitration agreement between the Parties conferring jurisdiction on the ICC over the claims, summarized in the Terms of Reference”

vi. The Tribunal after a detailed hearing, and on the basis of evidence led by both parties, passed a Partial Award dated 21st April 2015 (“Partial Award”) inter alia holding that a binding arbitration agreement existed between the Parties which conferred jurisdiction on the ICC over the claims summarized in the terms of reference made by the Petitioner. The Tribunal thereafter passed the Final Award on 27th September 2018.

vii. The Respondent did not challenge either the Partial Award or the