ENERCON (INDIA) LTD & Ors. v. ENERCON GMBH & Anr.

3.1 There are very strong indicators to suggest that the parties always understood that the seat of arbitration would be in India, and London would only be the "venue" to hold the proceedings of arbitration. Applying the G closest and the intimate connection to arbitration, it would be seen that the parties had agreed that the provisions of the Act would apply to the arbitration proceedings. By making such a choice, the parties have made the curial law provisions contained in Chapters Ill, H 866 SUPREME COURT REPORTS [2014] 2 S.C.R. A IV, V and VI of the Act applicable. In the instant case, London is mentioned only as a "venue" of arbitration, which, in the facts of the case cannot be read as the "seat" of arbitration. This is also because, all the three laws applicable in arbitration proceedings are Indian laws. B The law governing the contract, the law governing the arbitration agreement and the law of arbitration/curial law are all stated to be Indian. [para 90-91] [919-G-H; 920-B C, D-F] C 'Naviera Amazonica Peruana S.A. Vs. Compania Internacional De Seguros Del Peru 1988 (1) Lloyd's Rep 116 - relied on. Bharat Aluminium Company Vs. Kaiser Aluminium 2012 · (12) SCR 327 = 2012 (9) SCC 552 - referred to. D E James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd. [1970] 1 Lloyd's Rep. 269; [1970] A.C.583; Mustill, J. in Black Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1981] 2 Lloyd's Rep. 446 at P. 453 - referred to. Dicey & Morris on the Conflict of Laws (11th Edn.) - cited. F

3.2 In the instant case all the three laws: (i) the law governing the substantive contract; (ii) the law governing the agreement to arbitrate and the performance of that agreement; and (iii) the law governing the conduct of the arbitration, are Indian. The curial law of England would become applicable only if there was clear designation of the seat in London. Since the parties have deliberately G chosen London as a venue, as a neutral ptace to hold the meetings of arbitration only, it cannot be accepted that London is the seat of arbitration. Businessmen do not intend absurd results. If seat is in London, then challenge to the award would also be in London. But the parties H having chosen Indian Arbitration Act, 1996 - Chapter Ill, ENERCON (INDIA) LTD. & ORS. v. ENERCON GMBH 867 &ANR. IV, V and VI, s.11 would be applicable for appointment of A arbitrator in case the machinery for appointment of arbitrators agreed between the parties breaks down. Therefore, to interpret that London has been designated as the seat would lead to absurd results, and it would, therefore, be vexatious and oppressive if respondent no. 8 1 is permitted to compel. appellant n_o. 1 to litigate in England.' This would unnecessarily give. rise to the undesirable consequences. [para 105 and 107] [928-H; 929-A-E; 930-C] Braes of Doune Wind Farm (Scotland) Limited Vs. Alfred C McA/pine Business Services Limited [2008] EWHC 426 (TCC) • relied on. Abidin Vs. Daver. [1984] AC 398 • referred to.

3.3 In the instant case, the parties have only D designated London as a venue. Therefore, the parties have designated India as the seat. This is even more so as the parties have not agreed that the courts in London will have exclusive jurisdiction to resolve any dispute arising out of or in connection with the contract. In the E instant case, except for London being chosen as a convenient place/venue for holding the meetings of the arbitration, there is no other factor connecting the arbitration proceedings to London. [para 109] [930-H; 931- A·C] F C v. D [2007] EWCA Civ 1282 • referred to. Shashoua v. Sharma, (2009) 2 LLR 376 - distinguished.

3.4 In an International Commercial Arbitration, venue can often be different from the seat of arbitration. In such G circumstances, the hearing of the arbitration will be conducted at the venue fixed by the parties, but this would not bring about a change in the seat of the arbitration. Therefore, in the instant case, the seat would remain in India. [para 125] [941-C-D] H . 868 SUPREME COURT REPORTS [2014] 2 S.C.R. A B Braes of Doune Wind Farm (Scotland) Limited Vs. Alfred McAlpine Business Services Limited [2008] EWHC 426 (TCC); 'Naviera Amazonica Peruana S.A. Vs. Compania Internacional De Seguros Del Peru 1988 (1) Lloyd's Rep 116 - referred to. Redfern and Hunter on International Arbitration (5th Edn., Oxford University Press, Oxford/New York 2009), referred to. Issue No. vi/ Re: Concurrent Jurisdicion: C

4.1 The High Court having fixed the seat in India, committed an error in concluding that the Courts in England would have concurrent jurisdiction. It runs counter to the settled position of law in India as well as in England and would lead to unnecessary complications o and inconvenience. This, in turn, would be contrary to underlying principle of the policy of dispute resolution through arbitration. The whole aim and objective of arbitration is to enable the parties to resolve the disputes speedily, economically and finally. Once the seat of E arbitration has been fixed in India, it would be in the nature of exclusive jurisdiction to exercise the supervisory powers over the arbitration. [para 127 and 128] [941-F-H; 942-F-G] (1) Enercon GMBH (2) Wobben Properties GMBH Vs. F Enercon (India) Ltd., (2012) EWHC 3711(Comm) - referred to.

4.2 The Courts in England have time and again reiterated that an agreement as to the seat is analogous G to an exclusive jurisdiction clause. This agreement of the parties would include the determination by the court as to the intention of the parties. The natural forum for all remedies, in the facts of the instant case, is only India. [para 135] [948-C-D] H , ENERCON (INDIA) LTD. & ORS. v. ENERCON GMBH 869 & ANR. Shashoua v. Sharma, (2009) 2 LLR 376 Bharat A Aluminium Company Vs. Kaiser Aluminium 2012 (12) SCR 327 = 2012 (9) SCC 552; A Vs. B [2007] 1 Lloyds Report 237 - referred to. Issue (vii)IRe: Anti-Suit Injunction: B

5.1 It must be noticed that respondent No. 1 was initially having 51 per cent shareholding of appellant No.1 company, which was subsequently increased to 56 per cent. This would be an indicator that respondent No. 1 is actively carrying on business at Daman. This Court C considered the expression "carries on business" as it occurs in s.20 of the Code of Civil Procedure. Therefore, Daman Trial Court has jurisdiction over the matter. [para 141 and 142] [951-A-B, F]