"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.

Monday, December 19, 2011

Errores Emendantur: Yograj Infrastructure v Ssangyong (II)

A Two Judge Bench of the Supreme Court consisting of Altamas Kabir & Cyraic Joseph, JJ (Indian Kanoon Link, MANU/SC/1495/2011) passed a judgement on 15th of this month. The judgement (Correction Judgement) seeks to correct certain errors that were made by the same Two Judge Bench in another judgement (Earlier Judgement) in the same matter. This post deals with the Correction Judgement.

The Correction Judgement was pursuant to an Interlocutory Application made by Mr. Dharmendra Rautray, Advocate-on-Record for SSANGYONG Engineering under Order XIII Rule 3 of the Supreme Court Rules, 1966 which reads as below:
"Subject to provisions contained in Order XL of these rules a judgement pronounced by the Court or by a majority of the Court or by a dissenting Judge in open court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetic mistake or an error arising from any accidental slip or opinion."
The Application was for clarification and correction of the following errors in the Earlier Judgement:
  • At Para 5, the Earlier Judgement states that the application for interim relief was filed by Ssangyong under Section 17 of the Arbitration and Conciliation Act, 1996 (Act). However, the applications were filed under Rule 24 of the then Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) and not under Section 17.
  • Para 35 of the Earlier Judgement mentions that SIAC Rules was the curial law. However, as stated in Para 37 of the Earlier Judgement, the Singaporean International Arbitration Act was the curial law.
  • The Earlier Judgement (para 36) stated that as per Bhatia International, Part I was applicable even if the seat was in India. However, as per Bhatia International, Part I was applicable if the seat was outside India.
  • Para 4 of the Earlier Judgement erroneously mentions that the Appellant, Yograj Infrastructure, applied to the court under Section 9 of the Act. In fact, the Respondentr had applied to the court under Section 9. 
Yograj Infrastructure objected to the first request for clarification but the same was dismissed considering that Rule 32 clearly provided that the Singaporean International Arbitration Act was to be the law of arbitration. Thus the court concluded that the law of arbitration was the Singaporean International Arbitration Act.

We had noted the errors contained in the Earlier Judgement in our posts which can be accessed from here and here. Also, see this post in the Indian Corporate Law Blog which notes the errors that have been corrected in the Correction Judgement.

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