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CS Professional · Arbitration, Mediation and Conciliation · Conceptual Framework of International Commercial Arbitration

Banyan Infra Ltd (India) and Tasman Build Pty Ltd (incorporated in Australia) agreed to arbitration seated in London. Their agreement is silent on whether Part I applies. Before the tribunal is formed, Banyan wants an Indian Court to grant interim protection under section 9 against assets in India. Which view is correct under the Act?

Section 9 can be invoked. By the proviso to section 2(2), sections 9, 27 and parts of section 37 apply to international commercial arbitration seated outside India unless the parties agreed otherwise, if the award is enforceable under Part II. The silent agreement does not exclude it.

  1. ANo Indian Court can act, as Part I never applies when the place is outside India
  2. BSection 9 can apply to the international commercial arbitration even though the place is outside India, unless the parties agreed to the contrary, provided the award is enforceable under Part IICorrect
  3. CSection 9 applies only if the place is in India
  4. DSection 9 applies only if the Supreme Court approves

Explanation

The proviso to section 2(2) says that, subject to agreement to the contrary, sections 9, 27 and section 37(1)(a) and (3) also apply to international commercial arbitration even if the place is outside India, where the award is enforceable under Part II. The agreement is silent, so no exclusion exists. The first option ignores this proviso.

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