\n<\/p>\n
This decision takes me back to the <\/span>almost 20 years back<\/span> <\/span>when <\/span>arbitration practitioners <\/span>and students <\/span>in India used to track all arbitration judgments <\/span>of Indian courts <\/span>and post in various law blogs such as India Corp <\/span>L<\/span>aw<\/span> Blog, etc.<\/span> critiquing those judgments.<\/span> All those <\/span>students and <\/span>practitioners were young at that time have now become experts<\/span>.<\/span> <\/span>All <\/span>those critique<\/span> played <\/span>an important role<\/span> in <\/span>leading to the BALCO<\/a> judgment ([2012] 12 SCR 327) in September 2012, which is a watershed moment for Indian arbitration law and was viewed as correcting the <\/span>divergence from international position<\/span>.\u00a0<\/span><\/span>\u00a0<\/span><\/p>\n<\/div>\n A<\/span>fter a long time<\/span>,<\/span> we see a decision of Supreme Court<\/span> in <\/span><\/span>Disortho<\/span><\/span>,<\/span> which <\/span>requires such critique<\/span>. <\/span>The judgment <\/span>in <\/span><\/span>Disortho<\/span><\/span> <\/span>runs to 26 pages with only a five<\/span>–<\/span>line paragraph, that is, Para 2, devoted to summarising the arguments for both parties.<\/span> <\/span>What is missing in that decision is a counterpoints or arguments provided by each party<\/span>.\u00a0<\/span><\/span>\u00a0<\/span><\/p>\n<\/div>\n The judgment virtually <\/span>starts with the arbitration clause in question and goes on to <\/span>analyze<\/span> the <\/span>the<\/span> <\/span>legal position<\/span>. Anyway, this <\/span>is a petition filed under <\/span>S<\/span>ection 11 of the <\/span>A<\/span>rbitration and <\/span>C<\/span>onciliation <\/span>A<\/span>ct<\/span>, 1996<\/span> before the Supreme Court directly<\/span>. <\/span>Two points are noteworthy: One <\/span>Courts<\/span> have <\/span>traditionally <\/span>regarded decisions under <\/span>S<\/span>ection 11 as fact specific and not as precedents<\/span>. S<\/span>econdly<\/span>,<\/span> this decision <\/span>notes <\/span>at Para <\/span>34 that parties came to a consensus <\/span>to appointment as sole arbitrator.\u00a0<\/span><\/span>\u00a0<\/span><\/p>\n<\/div>\n \u201c<\/span>34. However, <\/span>during the course of<\/span> the hearing, the learned counsel for both<\/span> <\/span>parties, Meril and <\/span>Disortho<\/span>, unanimously <\/span>stated<\/span> that, should the present<\/span> <\/span>application under Section 11(6) of the Arbitration and Conciliation Act,<\/span> <\/span>1996, be allowed, the parties are agreeable to the arbitration being held<\/span> <\/span>in India. Furthermore, the parties have consented to the appointment of<\/span> <\/span>a sole arbitrator to <\/span>adjudicate<\/span> and decide the disputes in question<\/span><\/span>.<\/span>\u201d<\/span>\u00a0<\/span><\/span>\u00a0<\/span><\/p>\n<\/div>\n All the same, there is <\/span>a caveat<\/span>: \u201c<\/span><\/span>\u2026 should the application\u2026 be allowed\u2026<\/span>\u201d<\/span> <\/span>In any case, given the status of Section 11 applications<\/span> as facts specific<\/span>, this decision <\/span>should not <\/span>be taken as a precedent<\/span>, although they <\/span>generally are<\/span>.<\/span><\/span>\u00a0<\/span><\/p>\n<\/div>\n Let us look at the concerned arbitration clause in the agreement:<\/span>\u00a0<\/span><\/p>\n<\/div>\n 16.5. This Agreement shall be governed by and construed <\/span>in<\/span> <\/span>accordance with<\/span> the <\/span><\/span>laws of <\/span>India<\/span><\/span> <\/span>and all matter <\/span>pertaining to<\/span> this<\/span> <\/span>agreement or the matters arising <\/span>as a consequence of<\/span> this<\/span> <\/span>agreement with be subject to the <\/span><\/span>jurisdiction<\/span> of courts in Gujarat,<\/span> <\/span>India<\/span><\/span>.<\/span>\u201d<\/span>\u00a0<\/span><\/p>\n<\/div>\n 18. Direct Settlement of Disputes<\/span>\u00a0<\/span><\/p>\n<\/div>\n The Parties mutually agree and pact that any dispute,<\/span> <\/span>controversy or claim arising during this Agreement related to<\/span> <\/span>subscription, execution, termination, breach, as well as noncontractual<\/span> <\/span>relationships, related to the clauses mentioned<\/span> <\/span>above; They may be submitted to <\/span><\/span>conciliation in accordance with<\/span> <\/span>the Rules of Arbitration and Conciliation of the Chamber of<\/span> <\/span>Commerce of Bogota DC.<\/span><\/span>, or instead. of this city, where the<\/span> <\/span>Director of the Centre so <\/span>determine<\/span>.<\/span>\u00a0<\/span><\/span>\u00a0<\/span><\/p>\n<\/div>\n Similarly, the Parties mutually agree and pact that if the dispute<\/span> <\/span>or difference has not been settled in conciliation, or to the extent<\/span> <\/span>that has not been resolved; it will be committed to <\/span><\/span>Arbitration<\/span><\/span> by<\/span> <\/span>either party for final settlement <\/span><\/span>in accordance with the Arbitration<\/span> <\/span>and Conciliation Center of the Chamber of Bogota DC<\/span><\/span>. The<\/span> <\/span>Arbitral Tribunal shall consist of one (1) arbitrator in cases of<\/span> <\/span>minor or no value E according to the Rules of Conciliation and<\/span> <\/span>Arbitration Center of the Chamber of Commerce of Bogota DC.<\/span> <\/span>Also, <\/span>in the event of<\/span> greater amount, the Court of conformity shall<\/span> <\/span>comply with<\/span> the <\/span><\/span>Regulations of the Center for Conciliation and<\/span> <\/span>Arbitration of the Chamber of Commerce of Bogota DC<\/span>\u2026 <\/span>The arbitration will take place in Bogota DC<\/span><\/span>\u2026<\/span> On the premises of<\/span> <\/span>Center for Conciliation and Arbitration of the Chamber of<\/span>