The recent decision of the Delhi High Court in SARR Freights Corporation v. Argo Coral Maritime Ltd., is a failed opportunity to apply principles of conflict of laws and respect for comity of courts and tribunal.
In that case, United Nations peacekeeping cargo was to move from New Delhi to Port Sudan. The appellant / plaintiff SARR Freights was engaged by the respondent / defendant Argo Coral to transport the cargo. A Fixture Recap of 4 April 2023 stipulated at Clause 23 "English law and London arbitration". The Booking Note of the same date adopted "additional rider clause 20-41 in attached", though the riders ran to Clause 43, and Clause 43 alone carried the arbitration provision: "Bimco Dispute Resolution Clause latest edition to apply, subject to English Law and LMAA Terms and Procedures". The Booking Note also declared that it would "prevail over any previous arrangements". The appellants cancelled on force majeure grounds after the United Nations declared Sudanese ports unsafe.
Arbitration proceedings ensued in London before a three member LMAA tribunal. It appears that the appellant even nominated their arbitrator. By a partial award dated 18 October 2025, the majority, expressly applying English common law, held that the parties had agreed to English law and London arbitration, that the disputes fell within Clause 43, and that "41" was a typographical error to be rectified to "43" in line with the intention reflected in the Recap.
Only then did the appellants sue for an anti-arbitration injunction before the Delhi High Court. The Single Judge refused interim relief on 13 March 2026, reasoning from Govind Rubber Ltd v Louis Dreyfus Commodities Asia Pvt Ltd, (2015) 13 SCC 477 and Trimex International FZE v Vedanta Aluminium Ltd, (2010) 3 SCC 1 that an agreement may be spelt out of correspondence, and holding "20-41" an inadvertent oversight. Notably, the order records no finding on the proper law of the agreement, but applied Indian law.
On 18 September 2026 a Division Bench allowed the appeal. Affirming its power to rule on the existence of an arbitration agreement under McDonald's India Pvt Ltd v Vikram Bakshi, 2016 SCC OnLine Del 3949, it applied Sections 91 to 95 of the Indian Evidence Act, 1872, held the Booking Note clear and unambiguous, held at paragraph 30 that "the English Common law is materially different" on the use of prior negotiations, found no arbitration agreement, and injuncted the LMAA arbitration.
Any examination of whether the contract could be rectified, would depend on the choice of the governing law, and the determination of such governing law was logically required to be undertaken. The Bench itself framed issue (ii) as "whether as per law applicable" the Booking Note was the final agreement and never answered it, moving straight to the Indian Evidence Act. There was no discussion or finding on the applicable law, either before the Single Judge or the Division Bench. Dehors such finding, proceeding to examining the (Indian) law on rectification of contract was with respect, erroneous.
Indian Courts have numerous tests to determine the choice of law [See for instance, British India Steam Navigation Co. Ltd v Shanmughavilas Cashew Industries, (1990) 3 SCC 481; Sumitomo Heavy Industries Ltd v ONGC Ltd, (1998) 1 SCC 305]. None of the tests were considered or applied by the High Court in SARR Freights.
An examination to ascertain the application would have revealed that the only express choices of law in both the Fixture Recap and the Booking Notice select English law. It is another enquiry as to what is the jurisdiction clause or the law of the arbitration and the seat; for a contract can be governed by English law but be subject to the jurisdiction of Indian courts or have a seat elsewhere.
If English law governed, the enquiry under Sections 91 and 92 of the Indian Evidence Act was irrelevant. The Bench itself quoted Wigmore to the effect that Section 91 "is no sense a rule of evidence but a rule of substantive law". A substantive rule of contract is supplied by the proper law, not the lex fori. Again, if English law applied, the Court was required to ascertain English law through expert evidence. [See Section 39 of the Bharatiya Sakshya Adhiniyam, 2023; Hari Shanker Jain v Sonia Gandhi, (2001) 8 SCC 233; and Rhodia Ltd v Neon Laboratories Ltd]. In the present case, English law was gathered from three judgments handed across the bar and pronounced "materially different".
Paragraph 30's premise that the law of rectification in English common law is “materially different” from Indian law is also wrong. Indian law admits prior negotiations for precisely the purpose the tribunal used them, i.e. rectification of an instrument.
In BESCOM v E.S. Solar Power Pvt. Ltd., (2021) 6 SCC 718, the Supreme Court adopted Lord Hoffmann's principles from Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 verbatim, including: "The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification." The same is true of English law, and on the Bench’s own material. In Chartbrook Ltd v. Persimmon Homes Ltd [2009] UKHL 38, Lord Hoffmann explained that the exclusionary rule “does not exclude the use of such evidence for other purposes: for example … to support a claim for rectification or estoppel. These are not exceptions to the rule. They operate outside it.” (Chartbrook, Para 42) Numerous Indian decisions have applied Investors Compensation and Chartbrook.
Indian law is not materially different from English law on this aspect. The exception to admissibility of pre-contractual negotiations and extrinsic material in cases of rectification arguably finds reference in Section 26 of the Specific Relief Act, 1963 which permits rectification where, through mutual mistake, an "instrument in writing … does not express their real intention", and empowers the court to rectify the instrument "so as to express that intention". Furthermore, the 1st Proviso to Section 92 of the Evidence Act permits oral evidence for establishing a “mistake in fact or law”. The Hon’ble Court in SARR Freights ignored the 1st Proviso and referred only to the 6th Proviso.
The logic is res ipsa. For a claim for rectification to succeed it must be shown that the parties had, prior to the contract being recorded to the document, agreed on terms that differed from those expressed in the document [See numerous decisions starting from Haji Abdul Rahman v The Bombay and Persia Steam Navigation Co (1892) 16 Bom 561]. This inevitably requires evidence of something beyond the instrument itself.
Further, as far back as 1897, the Calcutta High Court in Mahendra Nath Mukherjee v. Jogendra Nath, 1897 SCC Online Cal 149 held that oral evidence was admissible to consider rectification of an instrument. In Sateri Shiddappa v. Rudrappa, 1953 SCC Online Bom 133, the Bombay High Court held “…there can be much doubt that under proviso (1) to s. 92 of the Indian Evidence Act oral evidence can be led to show that due to a mistake common to all the parties, the written document does not correctly express the agreement, which the parties have really entered into. …..The remedy in such cases is to sue for rectification of the instrument….”
Therefore, to hold that extrinsic evidence cannot be examined for rectification is incorrect.
The DB Judgment in SARR Freights demonstrates an emerging pattern. In Engineering Projects (India) Ltd v MSA Global LLC (Oman), 2025 SCC OnLine Del 5072, a Single Judge of the Delhi High Court stayed an ICC arbitration (post the partial award) as oppressive and vexatious on account of alleged bias of one of the tribunal’s members. The Single Judge’s decision was affirmed in December 2025 but ultimately, the parties agreed to appoint a fresh tribunal.
The common feature is timing: the Indian proceeding in both the cases follows the partial award. That is collateral review of a jurisdictional ruling delivered at a foreign seat, where the remedy lies under the curial law of the seat — in London, a challenge under Section 67 of the (English) Arbitration Act 1996, the analogue of Section 34 of the Indian Act.
The pattern contradicts the principle of comity and begs the question if we are being more interventionist than required. Comity and respect for courts of other jurisdictions is a foundational principle of conflict of laws. In Modi Entertainment Network v. W.S.G. Cricket Pte Ltd, (2003) 4 SCC 341, a seminal case on anti-suit injunctions, the Supreme Court held “the principle of comity – respect for the court in which the commencement or continuation of action/proceeding is sought to be restrained – must be borne in mind”.
Conflict of laws is a fascinating subject in the globalized word. It is too often forgotten, and imposes an unglamorous but indispensable discipline in international litigation: characterise the issue, identify the connecting factor, ascertain the applicable law, insist that it be proved if foreign, and only then reason to a result. SARR Freights reasons impeccably within a legal system it never established was the applicable one. That is the whole of the difficulty, and it is not a small one.
Aditya Swarup is a Counsel practicing in Delhi. He is also a practicing Barrister, associated with Outer Temple Chambers, London.