Referred to Larger Bench XIII Criticized: Venue v. Seat, Arbitration

On a lighter note, the following observations of Hon’ble Justice R.F. Nariman in BGS SGS Soma JV v. NHPC Ltd., [Civil Appeal No. 9307 of 2019] is interesting for the reason that, it points out Hon’ble Chief Justice of India Dipak Misra failed to apply Hon’ble Justice Dipak Misra. The percentage of seriousness can be increased by stating Hardy Exploration forgot Roger Shashoua.

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Whenever there is a designation of a place of Arbitration in an Arbitration Clause as being the ‘venue’ of the Arbitration Proceedings, the expression ‘Arbitration Proceedings’ would make it clear that the ‘venue’ is really the ‘seat’ of the Arbitral Proceedings. The fact that the Arbitral Proceedings ‘shall be held’ at a particular ‘venue’ would also indicate that the parties intended to anchor Arbitral Proceedings to a particular place, signifying thereby, that that place is the ‘seat’ of the Arbitral Proceedings. This, coupled with there being no other significant contrary indicia that the stated ‘venue’ is merely a ‘venue’ and not the ‘seat’ of the Arbitral Proceedings, would then conclusively show that such a clause designates a ‘seat’ of the Arbitral Proceedings. In an international context, if a supranational body of rules is to govern the Arbitration, this would further be an indicia that the ‘venue’, so stated, would be the ‘seat’ of the Arbitral Proceedings. In a national context, this would be replaced by The Arbitration Act, 1996 as applying to the stated ‘venue’, which then becomes the ‘seat’ for the purposes of Arbitration.

Roger Shashoua v. Mukesh Sharma, 2009 EWHC 957 (Comm) was expressly approved by the 5-Judge Bench in BALCO, (2012) 9 SCC 552 as was stated in Roger Shashoua v. Mukesh Sharma, (2017) 14 SCC 722. The Three Judge Bench in Hardy Exploration failed to apply The Shashoua Principle and cannot be considered to be good law.”Memory