Indian Supreme Court Rules It Has Jurisdiction To Hear Application To Set Aside Award Issued In Malaysia

Indian Supreme Court rules that Indian courts have jurisdiction to hear an application to set aside an award issued in Malaysia

Herbert Smith Freehills review the Supreme Court of India’s decision in Union of India v Hardy Exploration and Production (available here), where the Supreme Court found that a contractual clause stipulating Kuala Lumpur as the ‘venue’ of arbitration did not amount to a choice of juridical seat, noting that while the Indian courts’ jurisdiction to hear set-aside applications will be excluded if the seat of the arbitration is outside India, the Supreme Court found that in this case there was no chosen seat (and the tribunal had not determined a seat).

The authors comments that the decision is a reminder that the legacy of the controversial decision in Bhatia International continues to be felt six years after it was overruled, and illustrates the importance of clear drafting of arbitration agreements to avoid uncertainty and resulting delays, noting that a clear contractual choice of ‘seat’ rather than ‘venue’ would, it seems, have made the position clear, as would a choice of institutional rules which provide for the appointing authority to prescribe a seat where one is not chosen.

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About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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