"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, September 3, 2011

Implied Exclusion of Part I: Latest Development

In Yograj Infrastructure Ltd v. Ssang Yong Engineering & Construction Co. Ltd. (Civil Appeal 7562/ 2011), decided on 1 September 2011, a Two judge Bench of the Supreme Court consisting of Altamas Kabir & Cyriac Joseph, JJ has held that where the substantive law of contract was Indian Law, the choice of Rules was the Rules of the Singapore International Arbitration Centre (SIAC Rules) and the seat was Singapore, Part I of the Arbitration and Conciliation Act, 1996 (Act) was deemed to have been excluded impliedly. The court came to this conclusion mainly due to Rule 32 of the SIAC Rules which reads:
"Where the seat of arbitration is Singapore, the law of the arbitration under these Rules shall be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore) or its modification or reenactment thereof."
The court held that by virtue of the above provision, parties had willingly agreed to be governed by SIAC Rules. On the face of it, this judgement seems to be an applaudable development.  However, the court probably got it wrong when it stated: "There is therefore no ambiguity that the procedural law with regard to the arbitration proceedings, is the SIAC Rules." How can a set of Rules published by a Non-Governmental Institution (SIAC) be considered to be the "procedural law"? We'll analyse the decision in more detail in a separate post. Till then, check out the judgement from here.

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