Section 9 of Arbitration Act applies to foreign arbitration even after award is passed: Calcutta High Court

The Calcutta High Court held on April 28 that there was no logic in saying that Section 9 of the Arbitration and Conciliation Act would only apply to a foreign arbitration before or during arbitral proceedings [Balasore Alloys Limited v. Medima LLC]..A Division Bench of Justices Harish Tandon and Prasenjit Biswas held that even after an award is passed, the provision will be applicable. According to the Bench, if a restrictive meaning was given to the provision, the amendment brought to Section 2 of the Act in relation to international commercial arbitration would be redundant. "There is no logic to the contention of the appellant that the language used in section 9 has to be given a restrictive meaning that it would apply to a foreign award only in pre or during the arbitral proceeding. The expressions “before it is enforced under Section 36” has to be harmoniously construed taking into consideration the object for incorporation of the proviso to Section 2 (2) of the Act and should not be given a restrictive meaning," the judgment stated. .The Court also noted that the object and purpose underlying the incorporation of the amendment was laudable, and therefore, any restrictive interpretation would frustrate its purpose."It is apparent from the language employed therein that there is no restrictions imposed on the applicability of proviso to Section 2 (2) of the Act except to the extent that the exclusion is on the basis of an agreement by and between the parties.".Before the Court was a question as to whether Section 9 [Interim measures, etc., by Court] of the Act is applicable by virtue of Section 2(2) [this Part shall apply where the place of arbitration is in India] in respect of a foreign award even before any steps are taken for enforcement of the award. .The appellants, against whom an award was passed by the International Court of Arbitration, moved the plea claiming that the clause in their agreement relating to British governing law would exclude the power of Indian courts to grant interim relief under Section 9.A single-judge of the High Court had held that an application for interim protection under Section 9 of the Act in respect of the London-seated arbitration is maintainable..The appellants argued that foreign awards are not automatically enforceable in the Indian courts, except when the condition for such enforcements under the Act are fulfilled. According to them, an apparent distinction can be seen from the legislative intent in segregating a domestic award from a foreign award. Therefore, it was argued that the moment a foreign award is passed, Section 9 cannot be applied..However, the High Court placed reliance on the Supreme Court's judgment in the case of PASL Wind Solutions Pvt Ltd v. GE Power Conversion India Pvt Ltd wherein the top court did not accept the contention that Section 9 has no manner of applicability to a foreign award..With this, the appeal was dismissed and the single-judge's order was upheld. .The appellant was represented by Senior Advocate Dhruba Ghosh and Advocates Rishad Medora and Meghajit Mukherjee. The respondents were represented by Senior Advocate SN Mookherjee and Advocates Shounak Mitra, Nandini Khaitan, Shreya Singh and Vishal Sinha..[Read Judgment]