Similarly, the Supreme Court of British Colombia in C.E. International Resources Holdings (supra) held that a party to an arbitration agreement would include a person claiming through or under a party and non-signatories were held to be bound by arbitration agreement in various ways which include piercing the corporate veil.
From the aforesaid, it can be gathered that in the State of Delaware while conducting the arbitration proceedings in accordance with the Rules of the American Arbitration Association, it was permissible for the Arbitrator to decide the issue of substantive arbitrability and while doing so it was permissible to bind non-signatories to an arbitration agreement in various ways including piercing the corporate veil or invoking the alter ego doctrine.
Further, while Section 48 (1) (a) refers to parties to the agreement referred to in Section 44 of the said Act, Section 48 (1) (b) of the said Act makes reference to a party against whom the award is invoked. The distinction between a party to an agreement and a party against whom the award is invoked is relevant inasmuch as while the provisions of Section 48 (1) (a) are relatable to signatories to the arbitration agreement, the object of Section 48 (1) (b) is to take within its compass parties against whom the award is sought to be invoked which may include non-signatories to the arbitration agreement. In other words, a non-signatory to the agreement could also be a party against whom the award is sought to be invoked. Thus, enforcement of a foreign award against a party who is a non-signatory to the agreement but a party to the award is also statutorily recognized. The distinction though subtle in nature, the same appears to have been deliberately made to indicate the areas intended to be covered by said provisions.
20. Thus, if the provisions of Section 48 (1) (b) of the said Act are construed to include a party against whom the award is sought to be invoked in contrast with parties to an agreement as referred to in Section 48 (1) (a) of the said Act, we find that Section 48 (1) (b) contemplates an award being passed against a non-signatory party. If that be so, the International Arbitral Tribunal in a given case would have the jurisdiction to pass an award against a non-signatory party by applying the 'alter ego' doctrine. In that context, therefore, the International Arbitral Tribunal would have the necessary authority to decide the question of its jurisdiction including the question of existence and validity of an arbitration agreement. To hold otherwise would result in curtailing the scope of the provisions of Section 48 (1) (b) of the said Act.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Arbitration Appeal No. 3 of 2016 in Misc. Civil Application No. 1319 of 2015
Decided On: 04.01.2017
Integrated Sales Services Limited
Vs.
Arun Dev and Ors.
Hon'ble Judges/Coram:
B.P. Dharmadhikari and A.S. Chandurkar, JJ.
1. This appeal filed under Section 50 (1) (b) of the Arbitration & Conciliation Act, 1996 [hereinafter referred to as "the said Act"] takes exception to the judgment of learned Single Judge dated 18th April, 2016 in Misc. Civil Application No. 1319 of 2015 to the extent it holds that the Award dated 28th March, 2010 passed by the International Arbitration Tribunal is not enforceable in India against the respondents herein.
Facts
2. On 18th September, 2000, a Representation Agreement was entered into between Integrated Sales Services Ltd. [ISSL], a Company based in Hongkong - the appellant herein and DMC Management Consultants Ltd. [DMC MCL], a Company whose principal business address was stated to be at Nagpur. As per this Agreement, ISSL as the Representative was to assist DMC MCL - the Company to sell its goods and services to prospective customers and in consideration thereof, was to receive commission. This Agreement was made subject to laws of the State of Missouri, USA. As per Clause 8 (d) (ii) of the Representation Agreement, in case of disputes, the same were to be referred to a sole arbitrator to be appointed by agreement between the parties or failing such agreement, to be appointed according to the rules of the American Arbitration Association. This Agreement was signed by Mr. Terry L. Peteete as Director of ISSL and Mr. Rattan Pathak as Managing Director of DMC MCL. This Agreement, which came into force on 3rd October, 2000, came to be subsequently amended by the parties. As per said amendment, the rates of commission were varied and the amended agreement was to be adjudicated under Hongkong law. This amended agreement was signed by Mr. Terry L. Peteete on behalf of ISSL and Mr. Arun Dev Upadhyaya on behalf of DMC MCL - respondent No. 1 herein. Thereafter, there was a further amendment to the Representation Agreement and it was agreed that the first amendment had become null and void and that the original agreement executed between the parties would continue to operate. It was further agreed that the agreement would be subject to laws of the State of Delaware, USA, by amending Clause 8 (d) (1) of the Representation Agreement.
3. Thereafter certain disputes arose between the parties. According to the appellant, ISSL had brought two prospective customers, namely Med Quist Transcriptions Ltd. and Assist Med Inc. According to ISSL, the respondent No. 1 had formed DMC Global Inc [DMCG] as a Corporation for getting tax advantages. With a view to avoid payment of commission to ISSL, DMC MCL executed contracts with Gemini Bay Consulting Ltd. [GBC] and Gemini Bay Transcription Pvt. Ltd. [GBT]. On this basis, ISSL invoked the arbitration clause and claimed various reliefs against DMC MCL, DMCG, the respondent No. 1 herein, GBT and GBC. In response to the aforesaid proceedings, the respondent No. 1 submitted his statement taking the stand that the respondent No. 1 was not a signatory to any agreement entered into between DMC MCL and ISSL. It was stated by the respondent No. 1 that only in his capacity as a Director of DMC MCL, there was a dealing with ISSL. It was stated that the respondent No. 1 could not be identified as "alter ego" of DMC MCL.
4. The arbitration proceedings took place outside India. The Sole Arbitrator on 23rd December, 2009 determined four issues pertaining to jurisdiction of the International Arbitration Tribunal. It was held that the Representation Agreement would be governed by Delaware law. However, the decision with regard to piercing of corporate veil was postponed till the parties led evidence. It was further held that the International Arbitration Tribunal had jurisdiction to decide whether a non-signatory party to the Representation Agreement would be subject to its jurisdiction. It was observed that the parties to the proceedings were free to contest the claims and that their decision not to participate in the arbitration proceedings could expose them to an adverse award.
Thereafter, on 28th March, 2010, the Sole Arbitrator made his Award by holding that the alter ego doctrine was being invoked as a justification for lifting the corporate veil. It was further held that the respondent No. 1, DMC MCL, GBC and GBT had colluded together for breaching the Representation Agreement by terminating it abruptly. It was, thus, held that ISSL was entitled to be paid damages to the extent of $6948100-00. The parties made liable to pay the damages were DMC MCL, DMCG, the respondent No. 1 herein, GBC and GBT.
5. After this Award was passed, ISSL filed execution proceedings before the District Court at Nagpur. By order dated 13th October, 2015, the execution proceedings were converted into miscellaneous civil proceedings for adjudication in terms of provisions of Sections 46 to 49 of the said Act. Thereafter, the learned Principal District Judge, Nagpur, by Judgment dated 5th November, 2015 decided the application filed under Section 47 of the said Act and recognized the Award dated 28th March, 2010 as a decree of the court which could be enforced under Part-II of Chapter-I of the said Act.
6. The appellant herein filed an application under Section 49 of the said Act before this Court in view of amendment to the Explanation to Section 47 of the said Act. The parties agreed that the judgment dated 5th November, 2015 passed by the learned Principal District Judge would not survive in view of the aforesaid amended provisions. The parties were thereafter heard by the learned Single Judge and by Judgment dated 18th April, 2016, it was held that the Award dated 28th March, 2010 was a foreign award within the meaning of Section 44 of the said Act. It was further held that the International Arbitration Tribunal had no jurisdiction to pass an Award against non-signatories to the Representation Agreement by recording a finding that they were "alter ego" of DMC MCL. It was also held that the Court acting under Section 49 of the said Act could go behind the foreign award and could refuse to make it a decree of the Court. Accordingly, it was held that the Award dated 28th March, 2010 was not enforceable in India to the extent it operated against respondent Nos. 1 and 2 herein who were non-signatories. The Award was made enforceable against DMC MCL alone.
Being aggrieved by the aforesaid judgment to the extent it has been held that the Award dated 28th March, 2010 is unenforceable in India against the respondents herein, the decree holder has challenged the same. It is required to be stated that when this appeal was heard for admission, a preliminary objection was raised on behalf of the respondent No. 1 to the maintainability of the same. This Court by order dated 23rd June, 2016 held that the adjudication by the learned Single Judge was in exercise of original jurisdiction and, therefore, the appeal as filed under Section 50 (1) (b) of the said Act was maintainable. The respondent No. 1 assailed this order before the Honourable Supreme Court. By judgment dated 30th September, 2016, in Arun Dev Upadhyaya v. Integrated Sales Service Ltd. & anr. MANU/SC/1114/2016 : [2016 (9) SCALE 427], the Honourable Supreme Court after taking into consideration the provisions of Sections 5 and 3 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 held that a Letters Patent Appeal was maintainable before the Division Bench and the appeal as filed ought to be treated as an appeal filed under Section 50 (1) (b) of the said Act. It was observed that the appeal was required to be adjudicated within the said parameters. Pursuant thereto, we have heard Shri D.V. Chauhan, learned Advocate for the appellant, Shri Sunil Manohar, learned Senior Advocate with Shri A.G. Gharote, learned Advocate for the respondent No. 1, and Shri A.S. Jaiswal, learned Senior Advocate with Shri Shyam Dewani, learned Advocate for respondent No. 2 [I].
Submissions of parties
7. Shri D.V. Chauhan, the learned Advocate for the appellant, while challenging the findings recorded by the learned Single Judge, made the following submissions:-
"[a] It was submitted that the finding recorded in the impugned judgment that the International Arbitration Tribunal was not competent to rule on its own jurisdiction was not sustainable. In that regard, the learned counsel submitted that in the Representation Agreement dated 18th September, 2000 as amended by the second amendment, the laws of Delaware State were made applicable and it was on that basis that the International Arbitrator had adjudicated the claim. Reference was made to the International Centre for Dispute Resolution Arbitration Rules and especially Article 15 in relation to jurisdiction of the Arbitral Tribunal. It was submitted that under Article 15 (1) of the said Rules, the Arbitral Tribunal had the power to rule on its own jurisdiction including any objection with regard to the existence, scope or validity of the arbitration agreement. The learned counsel referred to the order dated 23rd December, 2009 passed by the Arbitrator wherein it was held by the Arbitrator that as the validity of the agreement had not been challenged by either of the parties, the Arbitral Tribunal had jurisdiction to decide whether a non-signatory to the agreement could be subjected to arbitration. Reference was also made to Article 28 (1) of the said Rules to urge that the laws of the State of Delaware were applicable. It was submitted that while passing the Award, the Arbitrator had followed the precedents of the Delaware Court of Chancery.Reference was then made to the Uniform Arbitration Act and especially Chapter-57 thereof. Reference was also made to Clauses 5709, 5713, 5714 (5), 5715 and 5719 in that regard. Though the remedy of appeal to challenge the award was available to the respondents, the same had not been availed. The learned counsel sought to derive support for the aforesaid submissions by placing reliance upon the judgment of the Honourable Supreme Court in Sasan Power Limited v. North American Coal Corporation India Pvt. Ltd. [MANU/SC/0940/2016] and especially para 38 thereof, to indicate that Part-II of the said Act does not deal with any matter pertaining to any step anterior to the making of a foreign arbitral award. The learned counsel also relied upon the judgment of the Honourable Supreme Court of the State of Delaware in James & Jackson, LLC v. Willie Gary, LLC dated 14th March, 2006, wherein it was held that the Arbitrator had jurisdiction to determine the aspect of substantive arbitrability. Reference was also made to the judgment of Court of Chancery of the State of Delaware in Legend Natural Gas II Holdings v. Mark E. Hargis to contend that under the American Arbitration Association Rules, the Arbitrator was empowered to decide the question of arbitrability. It was, thus, submitted that the finding recorded in paragraph 24 of the impugned judgment that the International Arbitration Tribunal was not competent to rule on its own jurisdiction was contrary to law.[b] That, the finding recorded that under Section 49 of the said Act, that it was open for the Court to review the decision resulting in an Award by the International Arbitration Tribunal was contrary to law. It was urged that under Section 48 of the said Act, there was no such power available with the Court to review a foreign award on merits. In that context, the learned counsel placed reliance upon the judgment of the Honourable Supreme Court in Shri Lal Mahal Ltd. v. Progetto Grano SPA [MANU/SC/0655/2013 : (2014) 2 SCC 433], wherein it was held that Section 48 of the said Act does not give an opportunity to have a second look at the foreign award at the stage of its enforcement. Reference was then made to the judgment of learned Single Judge dated 8th April, 2015 in the case of POL India Projects Ltd. v. Aurelia Reederei Eugen Friedrich Gmbh Schiffahrtsgesellschaft & Company Kg, wherein it was held that the award having become final, issues decided therein could not be challenged while raising objection under Section 48 of the said Act to the enforcement of the foreign award. The learned counsel also relied upon the Judgment of learned Single Judge dated 28th January, 2014 in Mitsui OSK Lines Ltd.,(Japan) v. Orient Ship Agency Pvt. Ltd., wherein after referring to the judgment of the Honourable Supreme Court in Shri Lal Mahal Ltd. [supra], the scope of interference under Section 48 (2) of the said Act was reiterated. It was, therefore, submitted that the power to review the award was not saved by Section 48 of the said Act.[c] That, the learned Single Judge erred in holding that the International Arbitration Tribunal had no jurisdiction to lift the corporate veil. It was submitted that the respondents had not furnished any proof on record as required under Section 48 (1) of the said Act and had merely relied upon the judgment of learned Single Judge in the case of ONGC Ltd. v. M/s. Jindal Drilling & Industries Ltd. [MANU/MH/0735/2015 : (2015) 7 Bom CR 62]. The learned counsel distinguished the aforesaid judgment of learned Single Judge and submitted that the observations made in paragraph 47 thereof that the Arbitral Tribunal had no power to lift corporate veil which could be done only by a Court if a strong case was made out, was not the ratio of the aforesaid judgment. It was submitted that no American Law was pointed out that barred the lifting of the corporate veil by the International Arbitration Tribunal. The conclusion recorded by the learned Single Judge in that regard was, therefore, not liable to be sustained.[d] That the foreign award could not have been held to be contrary to the provisions of Section 48(1) (c) (d) and (e). In that regard, it was submitted that the respondents had urged before the learned Single Judge that the enforcement of the foreign award ought to be refused in view of the grounds mentioned in Clauses (b), (c) and (d) of Section 48 (1) of the said Act while the said foreign award has been held to be hit by the conditions mentioned in Clauses (c), (d) and (e) of Section 48 (1) of the said Act. It was submitted that while challenging the enforcement of the foreign award, though reference was made to the ground under Section 48 (1) (b) of the said Act, there was no finding recorded in that regard. Further, the ground under Section 48 (1) (e) of the said Act was not canvassed; but the foreign award has been held to be hit by the said clause. It was then submitted that there were neither sufficient pleadings nor any proof, whatsoever, to substantiate the grounds as urged under Section 48 (1) (c) and (d) of the said Act. It was submitted that the respondents having been held liable under the foreign award, there was no question of applying the provisions of the Companies Act, 1956. The appellant was, in fact, a decree holder and it was seeking to exercise the power of enforcement of such foreign award. The learned counsel further submitted that the individual liability of the respondents had been adjudicated by the International Arbitration Tribunal as they were not signatories to the agreement. He also referred to the pleadings of the parties before the Arbitral Tribunal to urge that the stand taken there was distinct from the stand that was now taken in proceedings for enforcement of the foreign award. He drew attention of the Court to the grounds in paragraph 14 of the objections filed on behalf of respondent No. 1 before the learned Single Judge. He also referred to the grounds raised by the respondent No. 2 before the learned Single Judge. He also urged that the respondent Nos. 1, 2 (i) and (ii) were also individually liable to satisfy the award."
On these grounds it was urged that the appeal deserves to be allowed.
8. Shri Sunil Manohar, learned Senior Advocate for the respondent No. 1 opposed the appeal and made the following submissions :-
"[a] The Appellate Court, while entertaining an appeal under Section 50 (1) of the said Act acts as a Court of Correction, which jurisdiction was akin to the jurisdiction exercised by the Letters Patent Court. While exercising such appellate jurisdiction, the Court would be exercising the powers of a Court of error. Even if the final order was in favour of the respondents, findings if any against the respondents could also be corrected. All questions of fact and law were open to be urged before the appellate Court. Reasons assigned by learned Single Judge could also be substituted. In that regard, the learned Senior Advocate placed reliance upon the judgments of the Honourable Supreme Court in Baddula Lakshmaiah & ors, [MANU/SC/1128/1996 : 1996 (3) SCC 52] and Gaudiya Mission v. Shobha Bose & anr. [MANU/SC/7069/2008 : (2008) 17 SCC 714].[b] That the existence of an agreement containing the arbitration clause to which the respondent No. 1 was a party was sine qua non before the International Arbitral Tribunal could proceed in the matter against the respondent No. 1. It was submitted that even the appellant did not dispute the fact that there was no agreement between the appellant and the respondent No. 1 and that the only agreement that was relied upon by the appellant was the agreement between DMC MCL and the appellant. A copy of the original agreement as required by provisions of Section 47 (1) (b) of the said Act was never produced. It was urged that the only manner in which the International Arbitrator derives authority is either by consent of parties as agreed or under Section 45 of the said Act, pursuant to an order of a judicial authority. There was no other manner in which the International Arbitrator could assume jurisdiction. Reliance in that regard was placed on the judgments of the Honourable Supreme Court in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. & ors. [MANU/SC/0803/2012 : (2013) 1 SCC 641] and Deutsche Post Bank Home Finance Limited v. Taduri Sridhar & anr. [MANU/SC/0262/2011 : (2011) 11 SCC 375]. It was then submitted that there would be no presumption whatsoever as regards consent of a party with whom there was no such agreement. In support of this contention, the learned Senior Counsel referred to the judgment of the Honourable Supreme Court in Harsha Constructions v. Union of India & ors., [MANU/SC/0769/2014 : (2014) 9 SCC 246]. Reference was also made to the Uniform Arbitration Act which contemplates requirement of an agreement in writing between the parties as well as Article 1 of the International Centre for Dispute Resolution Arbitration Rules. In the aforesaid backdrop, it was thus submitted that the learned Single Judge ought to have dismissed the proceedings in limine on account of non-satisfaction of the requirements of Section 44 (a) and Section 47 (1) (b), considering the fact that such satisfaction has to be recorded under Section 49 of the said Act.[c] That the respondent No. 1 had duly met the requirements of the provisions of Section 48 (1) (b), (c) and (d) of the said Act. The respondent No. 1 in his objection before the International Arbitrator had specifically pleaded the absence of any arbitration agreement to which the respondent No. 1 was a party. In absence of any such agreement, there was no occasion for the International Arbitrator to proceed against the respondent No. 1 and hold the respondent No. 1 liable. It was for this reason that the respondent No. 1 had not subsequently participated in the arbitration proceedings. Similarly, what was not stated in the agreement between the appellant and DMC MCL was beyond the scope of the submission to arbitration. On these counts, the enforcement of the foreign award against the respondent No. 1 was liable to be refused.[d] That in any event the Award in question could not be called a foreign award insofar as the respondent No. 1 was concerned. According to the learned Senior Advocate, in view of provisions of Section 44 (a) of the said Act, at the highest the Award in question could be termed to be a foreign award between DMC MCL and the appellant. It was not a foreign award between the appellant and the respondents as they were not parties to the arbitration agreement. On this count, it was submitted that though the learned Single Judge had held the entire award to be a foreign award, said finding needs to be corrected by this Court by holding that the same was not a foreign award between the appellant and the respondents.[e] That the International Arbitrator acted beyond his jurisdiction by piercing the corporate veil. Referring to the response of the respondent No. 1 to the statement of claim made before the International Arbitrator, it was submitted that a specific stand in that regard had been taken and it had been specifically pleaded by the respondent No. 1 that DMC MCL was not the alter-ego of the respondent No. 1. This specific stand, though taken, was not adjudicated by the International Arbitrator. By referring to the preliminary order dated 23rd December, 2009, it was submitted that though the International Arbitrator had postponed the consideration of the question as to whether the corporate veil could be pierced till the parties led evidence, such final decision was taken by the International Arbitrator without having any such authority or jurisdiction in that regard. There was no consent given by the respondent No. 1 to the International Arbitrator to pierce the corporate veil. The International Arbitrator also failed to decide its own competence to entertain the dispute and whether the same was arbitrable. It was then submitted that it was only the Court and not the International Arbitral Tribunal that could lift the corporate veil. In support of said submission, the learned Senior Advocate placed reliance upon the judgment of the Honourable Supreme Court in Shin - Etsu Chemical Company Ltd. v. Vindhya Telelinks Ltd. & ors. [MANU/SC/0488/2005 : 2005 (7) SCC 234]. He also referred to the decision of the Division Bench of this Court in Hemant D. Shah & ors. v. Chittaranjan D. Shah & ors. in Appeal No. 658 of 2006, arising out of Arbitration Petition No. 295 of 2006, decided on 5th September, 2006 wherein it was held that the exercise of lifting the corporate veil could not be done in proceedings under section 9 of the said Act. It was submitted that this decision of the Division Bench was affirmed by the Honourable Supreme Court.[f] That the International Award was contrary to the fundamental policy of India and hence under provisions of Section 48 (2) (b) of the said Act its enforcement ought to have been refused. The judgment of the Honourable Supreme Court in Shri Lal Mahal (supra) was sought to be distinguished by relying upon a subsequent judgment in Oil and Natural Gas Corporation Limited v. Western GECO International Limited, [MANU/SC/0772/2014 : (2014) 9 SCC 263] and it was urged that the concept of fundamental policy of Indian law had been widened by the Honourable Supreme Court in its subsequent decision. The learned Senior Advocate also relied on the decision in Associate Builders v. Delhi Development Authority, [MANU/SC/1076/2014 : 2015 (3) SCC 49] to buttress his submission. In that regard, reference was made to Part II, Chapter I of the said Act as well as First Schedule to the said Act and it was submitted that the same contemplated an agreement in writing by which parties undertake to resolve all or any of the differences between them through arbitration. Said provisions contemplate a defined legal relationship between such parties. This position of law being settled, anything contrary to the same would be against the fundamentals of law and public policy of India."
It was thus submitted that the ultimate conclusion arrived at by the learned Single Judge did not call for any interference.
9. Shri A.S. Jaiswal, learned Senior Advocate for the respondent No. 2(i) also opposed the appeal and made the following submissions:-
"[a] That the respondent No. 2(i) was also not a party to the arbitration agreement. The respondent No. 2(i) had signed the Representation Agreement and the document of second amendment in his capacity as Director of DMC MCL. The respondent No. 2 was an independent entity from DMC MCL as well its respective shareholders. Reference in that regard was made to the certificate dated 25th October, 2009 issued by the Company Secretary to that effect. Hence, there was no question of the respondent No. 2(i) being held liable.[b] That the International Arbitrator exceeded his jurisdiction in piercing the corporate veil. The finding recorded as to the co-relation between DMC MCL and GBT was perverse. There was no evidence received in that regard and the attribution to the knowledge of respondent No. 2(i) was hardly of any legal consequence. The International Arbitrator assumed power to go into these aspects without having any jurisdiction to do so. The respondent No. 1 was joined as a party in his individual capacity and not respondent No. 2(i).[c] That the respondent No. 2 could not have been saddled with any liability whatsoever. Commission if any was payable only by DMC MCL. There was no question whatsoever of the respondent No. 2 inheriting the business of Medquist and Assist Med from DMC MCL. Business could never be inherited and that it could only be transferred. Reference was not made to any legal provision on the basis of which terms and conditions of the Representation Agreement could be inherited by the respondent No. 2. Referring to the term "subrogation" as explained in Black's Law Dictionary, it was urged that the alleged breach at the instance of DMC MCL had been wrongly inputted to all the respondents.[d] That as per Article 1 of the International Centre for Dispute Resolution Arbitration Rules and Clause 5701 of the Uniform Arbitration Act, a written agreement with an arbitration clause was contemplated. The respondent No. 2 was not a signatory to any such agreement with the appellant. The judgments in James & Jackson as well as in Legend Natural Gas II Holdings (supra) relied upon by the learned Counsel for the appellant were sought to be distinguished by urging that the emphasis was on parties agreeing for arbitration. As regards the decision in POL India Projects Ltd. (supra), it was submitted that the provisions of the English Arbitration Act with regard to loss of right to object had been relied upon. There was no such provision in Delaware law with regard to losing one's right to object. Reliance was then placed on the decision of the Delhi High Court in C.P. No. 278/2002 decided on 16th December, 2003 - Marina World Shipping Corporation Ltd. v. Jindal Exports (P) Ltd. to urge that even if a losing party had not challenged the award as provided under foreign law, challenge to such award on grounds as set out in Section 47 and 48 of the said Act could be raised."
It was therefore submitted that the appeal deserved to be dismissed.
10. In reply, it was submitted by the learned Counsel for the appellant that the scope of the present appeal was limited to the provisions of Section 50(1)(b) of the said Act as observed by the Honourable Supreme Court in paragraph 24 of its decision in Arun Dev Upadhyaya (supra). No new findings as sought to be urged at the behest of the respondents could be invited. It was urged that the judgments relied upon by the respondent No. 1 in that regard were not applicable. As regards the contention with regard to absence of an agreement between the appellant and the respondents, it was submitted that the respondents had been sued as alter-ego of DMC MCL which was a signatory to the Representation Agreement. The only objection as pleaded and raised by the respondent No. 1 was of being a non-signatory to the aforesaid agreement. The objection as regards the right and authority to lift the corporate veil under Delaware law was never pleaded. Reference was made to the specific prayers made in the claim statement by the appellant. It was then submitted that the objection as to absence of notice under Section 48 (1)(b) of the said Act was not pleaded before the International Arbitrator. Reference was made to various e-mail messages sent to the respondent No. 1 prior to and during the arbitration proceedings. There was no question of any consent of the respondents being obtained prior to piercing the corporate veil as they had been sued as alter-ego of DMC MCL and that the corporate veil of DMC MCL had been lifted. Reference was then made to the observations in paragraph 11 of the judgment of the learned Judge to submit that the grounds based on provisions of Section 48 (2)(b) of the said Act were urged only on behalf of DMC MCL and that in paragraph 38 of the said judgment this contention had been turned down. The judgments relied upon by the learned Senior Advocates for the respondents were sought to be distinguished. Reliance was then placed on the judgment of the Supreme Court of British Columbia in C.E. International Resources Holdings LLC v. Yeap Soon Sit, S.A. Minerals Partnership and Tantalum Technology Inc. dated 1st October, 2013 as well as extract 2.51 from Redfern and Hunter on International Arbitration.
Consideration
11. Since the learned Senior Advocate on behalf of respondent No. 1 has submitted that the scope of the present appeal filed under Section 50 (1) (b) of the said Act would be wide and akin to the jurisdiction which the Court would exercise while entertaining a Letters Patent Appeal, said aspect can be considered at the outset. As noted earlier, by order dated 30th September 2016, this Court had decided the preliminary objection to the maintainability of the present appeal. Said preliminary objection had been rejected and this order was assailed before the Honourable Supreme Court. The Honourable Supreme Court in Arun Dev Upadhyaya (supra), after considering the provisions of Sections 5 and 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 along with Section 50 of the said Act observed as under :-
"24........ A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a Letters Patent Appeal is maintainable before the Division Bench. It has to be treated as an appeal under Section 50 (1) (b) of the 1996 Act and has to be adjudicated within the said parameters."
Considering the aforesaid observations of the Honourable Supreme Court that a Letters Patent Appeal would be maintainable and the present being an appeal under Section 50 (1) (b) of the said Act, it has to be adjudicated within the said parameters.
12. Chapter I of Part II of the said Act lays down the manner in which certain foreign awards can be enforced. The modalities for seeking enforcement of a foreign award as well as grounds on which such enforcement can be refused by the Court have been laid down therein. After the Court arrives at the satisfaction that the foreign award is enforceable under Chapter I, the award is deemed to be a decree of the Court. The provisions of Section 48 of the said Act now stand judicially interpreted as per various decisions of the Honourable Supreme Court of India to which we shall refer to a bit later. Suffice it to say that as Section 50 (1)(b) of the said Act provides for an appeal from an order of the Court refusing to enforce a foreign award under Section 48 of the said Act, the appellate Court would be required to examine the challenges to such order in the light of the scope of the provisions of Section 48 of the said Act. While undertaking such exercise, the appellate Court can examine whether the enforcement of a foreign award deserves to be refused on the touchstone of Section 48 of the said Act or not. In that context, the findings recorded by learned Single Judge while refusing to enforce a foreign award would be open to correction as observed by the Honourable Supreme Court in Baddula Lakshmaiah (supra). In the light of the aforesaid, the challenges as raised can be considered.
13. It is not in dispute that the appellant and DMC MCL were the only signatories to the Representation Agreement. The arbitration proceedings were however initiated against DMC MCL as well as the respondent Nos. 1 and 2 herein. Perusal of the statement of claim filed by the appellant before the International Arbitral Tribunal indicates that the respondents herein were made parties in the arbitration proceedings. In paragraph 62 of the claim statement it was pleaded by the appellant as under :-
"62. Accordingly, each Respondent is fully obligated to Claimant ISS as the alter ego of the others, and the corporate veil of each should be pierced under Delaware corporation law, and all corporate Respondents should be considered continuation corporations of DMC Management Consultants, and each Respondent should be bound to the agreement to this arbitration to the full extent and in the same manner as DMC Management Consultants. "
Prayer clause (a) made in the claim statement of the appellant reads as under :-
"a. Declaring that Delaware law applies to all issues relating to the construction and performance of the Representation Agreement at issue herein and all other issues arising out of that contract, including piercing of the corporate veil, disregard of the corporate form of Respondents, alter ego theory applicable to Respondents and otherwise; and...."
14. The respondent No. 1, while responding to the statement of claim denied the assertions made in the statement of claim and stated that the respondent No. 1 could not be identified as an alter ego of DMC MCL, GBC or GBT. Further stand opposing the claim as made was based on the fact that the respondent No. 1 had made certain dealings only with Mr. Terry Peteete and his wife Mrs. Rama during his tenure as Director of DMC MCL. The International Arbitrator on 23rd December, 2009 in his ruling and order observed that only the appellant and DMC MCL filed briefs. Other non-signatory parties had failed to file relevant briefs on the matters and had only submitted affidavits. Thereafter, while determining the applicability of Delaware Law as the substantive law controlling the agreement, the International Arbitrator postponed the decision on the question of piercing the corporate veil and joinder non-signatory parties. According to the Tribunal, until all such evidence was received, a finding could not be recorded on the same. In the same order, it was stated that participation of the respondent No. 1 along with the GBC and GBT would not jeopardize in any way their claim and the same would not constitute a waiver of rights or claims as non-signatory parties. The decision not to participate in those proceedings was stated to expose such parties to an adverse award or an award by default. It is common ground that thereafter the respondents did not participate in the arbitration proceedings.
15. From the aforesaid it is clear that as per the statement of claim made by the appellant before the International Arbitrator, the appellant proceeded against the respondents on the footing that they were not signatories to the agreement and hence called upon the Arbitrator to pierce the corporate veil and apply the alter ego doctrine. This stand was opposed on the plea that being non-signatories to the arbitration agreement, they had no concern with the proceedings that were essentially between the appellant and DMC MCL. After ruling on the applicability of substantive law, the Arbitrator proceeded to postpone the decision on the aspects of piercing of the corporate veil and joinder of non-signatory parties. Thereafter, the respondents did not participate in the proceedings which culminated into the award dated 28th March, 2010. Admittedly, this award was not subjected to any further challenge by the respondents herein as permissible under the Rules framed by the American Arbitration Association.
16. If the award passed by the International Arbitration Tribunal is perused, it can be seen that the Arbitrator has followed the precedents of Delaware Court of Chancery. On the basis of said precedents the International Arbitrator has proceeded to consider whether the "alter ego" doctrine would be applicable and whether the corporate veil should be lifted. It is in that context that the learned Counsel for the appellant has sought to rely upon the judgment of the Supreme Court of the State of Delaware in James and Jackson (supra). Therein, the Supreme Court of the State of Delaware while considering the question as to whether the issue of substantive arbitrability should be decided by an arbitrator or a Court adopted the majority view of jurisdictions other than the United States Supreme Court that where the arbitration clause provides that arbitration would be conducted in accordance with the rules of the American Arbitration Association, the same is clear evidence of the parties intent that the arbitrator shall determine the aspect of substantive arbitrability. As per clause 8 (d) (ii) of the Representation Agreement the signatories to the same had agreed to resolve their disputes through an arbitrator to be appointed in accordance with the American Arbitration Agreement.
In Legend Natural Gas II Holdings (supra), the Court of Chancery of the State of Delaware accepted that the issue of substantive arbitrability must be decided by the Arbitrator. Here too, the agreement included the arbitration clause by which disputes were to be resolved as per the rules of the American Arbitration Association. Similarly, the Supreme Court of British Colombia in C.E. International Resources Holdings (supra) held that a party to an arbitration agreement would include a person claiming through or under a party and non-signatories were held to be bound by arbitration agreement in various ways which include piercing the corporate veil.
From the aforesaid, it can be gathered that in the State of Delaware while conducting the arbitration proceedings in accordance with the Rules of the American Arbitration Association, it was permissible for the Arbitrator to decide the issue of substantive arbitrability and while doing so it was permissible to bind non-signatories to an arbitration agreement in various ways including piercing the corporate veil or invoking the alter ego doctrine.
17. While opposing the application for enforcement of the foreign award, the respondent No. 1 had relied upon the provisions of Section 48 (1) (a), (c) and (d) of the said Act along with the objection under Section 48 (2) of the said Act. These objections are based on the footing that the respondent No. 1 was not a signatory to the Representation Agreement entered into by the appellant with DMC MCL. The emphasis was on the aspect that being a non-signatory to the said agreement, it was not open for the International Arbitrator to entertain and decide issues pertaining to the respondent No. 1 without its consent so as to lift the corporate veil or apply the alter ego doctrine.
The respondent No. 2 had also opposed the enforcement proceedings on the ground that it was not a signatory to the Representation Agreement and that, in fact, it had been incorporated after execution of said agreement. There was no proper opportunity made available to the respondent No. 2 in the arbitration proceedings and that the liability of DMC MCL, if any, could not have been extended to the respondent No. 2 by piercing the corporate veil.
18. Chapter I of Part II of the said Act specifically deals with the modality for enforcement of certain foreign awards. It would be apposite at this stage to refer to paragraph 121 of the judgment of the Constitution Bench in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. [MANU/SC/0722/2012 : (2012) 9 SCC 552] wherein it has been observed thus:-
"121. Generally speaking, regulation of arbitration consists of four steps:(a) the commencement of arbitration;(b) the conduct of arbitration;(c) the challenge to the award; and(d) the recognition or enforcement of the award;In our opinion, the aforesaid delineation is self-evident in Part I and Part II of the Arbitration Act, 1996. Part I of the Arbitration Act, 1996 regulates arbitrations at all the four stages. Part II, however, regulates arbitration only in respect of commencement and recognition or enforcement of the award."
It is then observed that the regulation of conduct of arbitration and challenge to an award under Part II of the said Act would have to be done by the Courts of the country in which the arbitration is being conducted. We are not oblivious of the fact that the law laid down by the Constitution Bench would apply prospectively and hence we have referred only to the interpretation of Part I and Part II of the said Act.
Section 44 of the said Act defines the term "foreign award". Section 45 of the said Act confers power on a judicial authority to refer parties to arbitration. In Sasan Power Ltd. [supra], it has been held that the scope of enquiry under Section 45 is confined only to the question whether the arbitration agreement is "null and void, inoperative or incapable of being performed." Under Section 46 of the said Act, any foreign award enforceable under Chapter I of Part II is treated as binding for all purposes on the persons as between whom it was made. The expression "persons as between whom it was made" in Section 46 is relatable to parties to an agreement in Section 44 of the said Act as well as non-signatory parties to such agreement.
19. Under Section 47 (1) of the said Act, the party applying for enforcement of a foreign award is required to produce before the Court amongst other things stipulated therein, such evidence as would be necessary to prove that the award was a foreign award. The provisions of Section 48 (1) of the said Act on the other hand contemplate refusal to enforce a foreign award only if the party against whom it is invoked furnishes to the Court proof that requirements of sub-clauses (a) to (e) therein are satisfied. Thus, while the party applying for enforcement of a foreign award is required to give evidence as would be necessary to prove that the award was a foreign award, the party resisting its enforcement is required to give proof to the Court that the grounds stipulated have been duly made out. The distinction between evidence and proof is that proof stands on a higher degree or pedestal than evidence. This distinction between evidence and proof has been explained in Black's Law Dictionary - Sixth Edition in the following manner:-
"Proof is the perfection of evidence; for without evidence there is no proof, although there may be evidence which does not amount to proof."
Thus, a party resisting enforcement of a foreign award is expected to furnish proof of a somewhat higher degree and thus casts a greater burden on such party than the burden on the party who seeks enforcement of a foreign award who is only expected to produce necessary evidence. This view stands fortified by the observations of the Full Bench of this Court in R.S. Jiwani, Mumbai v. Ircon International Ltd., Mumbai [] where in the context of Section 34 (2) oMANU/MH/1492/2009 : 2010 (1) Mh. L.J. 547f the said Act, it has been stated that the word "proof" needs to be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. What is required is production of such material on which the Court can reasonably act to reach the supposition that a fact exists.
Further, while Section 48 (1) (a) refers to parties to the agreement referred to in Section 44 of the said Act, Section 48 (1) (b) of the said Act makes reference to a party against whom the award is invoked. The distinction between a party to an agreement and a party against whom the award is invoked is relevant inasmuch as while the provisions of Section 48 (1) (a) are relatable to signatories to the arbitration agreement, the object of Section 48 (1) (b) is to take within its compass parties against whom the award is sought to be invoked which may include non-signatories to the arbitration agreement. In other words, a non-signatory to the agreement could also be a party against whom the award is sought to be invoked. Thus, enforcement of a foreign award against a party who is a non-signatory to the agreement but a party to the award is also statutorily recognized. The distinction though subtle in nature, the same appears to have been deliberately made to indicate the areas intended to be covered by said provisions.
20. Thus, if the provisions of Section 48 (1) (b) of the said Act are construed to include a party against whom the award is sought to be invoked in contrast with parties to an agreement as referred to in Section 48 (1) (a) of the said Act, we find that Section 48 (1) (b) contemplates an award being passed against a non-signatory party. If that be so, the International Arbitral Tribunal in a given case would have the jurisdiction to pass an award against a non-signatory party by applying the 'alter ego' doctrine. In that context, therefore, the International Arbitral Tribunal would have the necessary authority to decide the question of its jurisdiction including the question of existence and validity of an arbitration agreement. To hold otherwise would result in curtailing the scope of the provisions of Section 48 (1) (b) of the said Act.
The absence of any provision like Section 16 of the said Act in Part-II of the said Act is, in our view, relevant for the purposes of Section 45 of the said Act. This aspect has been considered in Chloro Controls India (P) Ltd. wherein it has been observed that determination of such fundamental issues under Section 45 of the said Act by a judicial forum is the legislative intent. However, absence of such provision in Part-II of the said Act cannot lead to a presumption of exclusion of the competence of the International Arbitral Tribunal to rule on its jurisdiction when international arbitration is held outside India. It is to be noted that in Chloro Controls India (P) Ltd., the Honourable Supreme Court was dealing with international arbitration that had taken place in India which permitted invocation of provisions of Section 45 of the said Act. But in a case where international arbitration takes place outside India and there is no occasion to invoke provisions of Section 45 of the said Act, it would not be practically feasible nor desirable to start with a presumption that the jurisdiction of an International Arbitral Tribunal to rule on its own jurisdiction as well as to rule on the existence and validity of an arbitration agreement stands excluded. In fact, in paragraph 84 of the judgment in Chloro Controls India (P) Ltd. [supra], the Honorable Supreme Court has taken judicial note of the positive effect of the kompetenz-kompetenz principle in majority of countries. The International Arbitrator could, thus, be the first judge while deciding the question of its jurisdiction and as regards existence/validity of the arbitration agreement. Moreover, Article 15 of the International Centre for Dispute Resolution Arbitration Rules specifically empowers the Arbitral Tribunal to rule on its own jurisdiction including on the objections with regard to the existence, scope or validity of the arbitration agreement.
Hence, for aforesaid reasons, we find ourselves unable to uphold the finding recorded by the learned Single Judge while answering Question No. 2 in the impugned judgment, that the International Arbitral Tribunal had no jurisdiction to pass an award against the respondents who were non-signatories to the arbitration agreement after holding that they were 'alter ego' of DMC MCL. We, however, uphold the finding recorded while answering question No. 3 that the decision of the International Arbitral Tribunal on the question of its own jurisdiction is tentative in nature and is subject to the provisions of Section 49 of the said Act. Needless to state that satisfaction of the Court as contemplated by Section 49 of the said Act would be arrived at after the party applying for enforcement of the foreign award has produced evidence as required by Section 47 of the said Act and after the party against whom the award is sought to be enforced has failed to make out any ground contemplated by Section 48 of the said Act for refusal of enforcement of such foreign award. For recording such satisfaction under Section 49 of the said Act, a review on the merits of the dispute would not be permissible.
21. If the objections raised by the respondents to the application for enforcement are perused, it becomes clear that the same are based on the footing that the respondents were not signatories to the arbitration agreement entered into by the appellant with DMC MCL. The objections proceed on the basis that as the respondents were not parties to the aforesaid agreement they had never consented to permit the Arbitrator to go into the issue of lifting the corporate veil or to apply the alter ego doctrine. There was no consent to adopt the course as followed by the International Arbitrator.
From the material on record, however, it can be seen that except for pleadings in the objection to the application for enforcement of the award, there is no proof furnished as required by provisions of Section 48 (1) of the said Act. In absence of any proof whatsoever being furnished by the respondents to substantiate their plea for refusal to enforce the foreign award, mere pleadings in that regard would not suffice. As noted above, requirement of furnishing proof stands at a higher degree than producing necessary evidence for enforcing a foreign award. Under Sub-section (1) of Section 48 of the said Act, enforcement of a foreign award may be refused only if such party furnishes proof in that regard. Use of the word "may" in the matter of enforcement of a foreign award in Section 48 (1) of the said Act indicates availability of discretion with the Court in the said matter. However, use of the word "only" in the requirement of furnishing proof indicates the pre-condition in that regard.
Thus, merely on the basis of pleadings between the parties before the Arbitrator and grounds raised by way of objection to the enforcement application, the enforcement of the foreign award is sought to be opposed. Separate incorporation and existence as a distinct legal entity are aspects leading to the application of the "alter ego" doctrine and hence mere fact of such separate incorporation would not amount to "proof" to deny enforcement of an award. To put it differently, the findings recorded by the International Arbitral Tribunal would constitute evidence in support of such conclusion and hence for purposes of refusal of enforcement, proof of a higher degree would be required. Considering the statutory requirements of aforesaid provisions, we find that mere legal submissions would not take place of proof as required. We, therefore, find that there is no proof furnished by respondents to justify their opposition to the enforcement of the foreign award. It may be noted that the parties have consciously declined to lead evidence as recorded in paragraph 4 of the judgment under appeal.
22. There is no difficulty in accepting the position that arbitration proceedings have to take place between parties to the agreement which contains an arbitration clause. The decisions in Deutsche Post Bank Home Finance Ltd. Indowind Energy Ltd. and Harsha Constructions [supra] emphasize the existence of a written agreement containing an arbitration clause before such party can be subjected to arbitration proceedings. Further, two companies having common shareholders would not make the said two companies a single entity and there can be no inference that one company would be bound by the acts of the other.
However, this position is subject to the legally recognized exception that in appropriate cases the corporate veil of a company can be pierced. In India, the concept of lifting the corporate veil is now a recognized exception to the rule that a corporation in law has a separate and distinct legal entity of its own. In Tata Engineering & Locomotive Co. Ltd. v. State of Bihar & ors., [MANU/SC/0036/1964 : AIR 1965 SC 40], it has been observed that the doctrine that a Corporation or a company has a legal and separate entity of its own has been subjected to certain exceptions by the application of the fiction that the veil of the Corporation can be lifted and its face can be examined in substance. The aforesaid exception as recognized in the aforesaid decision has been consistently applied thereafter. A recent decision of the Honourable Supreme Court of India in State of Rajasthan & ors. v. Gotan Lime Stone Khanij Udyog Private Limited & anr., [MANU/SC/0058/2016 : (2016) 4 Supreme Court Cases 469] reiterates this legal position in India. In Chloro Controls India (P) Ltd. (supra), the Honourable Supreme Court of India while considering the scope and ambit of the provisions of Section 45 of the said Act has observed in clear terms that reference of non-signatory parties to arbitration is neither unknown to arbitration jurisprudence nor is the same impermissible. The concept of lifting the corporate veil and application of the alter ego doctrine have, thus, been judicially recognized in India.
23. The International Arbitrator in his award after applying precedents available under Delaware law proceeded to decide the aspect of substantive arbitrability as the Representation Agreement referred to applicability of American Arbitration Association Rules. Thereafter, on the basis of available precedents, he proceeded to pierce the corporate veil and applied the alter ego doctrine. The award has been shown to have been passed after due notice to the parties against whom it was sought to be invoked. This exercise could be undertaken only against non-signatory parties. The non-signatory parties have suffered the award on merits. The signatory to the Representation Agreement has not challenged the award. Though it has been observed by the Delhi High Court in Marina World Shipping Corporation Ltd. [supra] that failure to challenge the foreign award under the applicable law would not preclude a losing party from resisting its enforcement under Section 48 of the said Act, grounds stipulated by Section 48 are required to be made out. From the grounds enumerated in Section 48 of the said Act, it can be clearly gathered that it is the intention of the Parliament to honour private agreements and international adjudication through arbitration. Effort appears to be to ensure least interference to the extent possible. Hence the requirement of furnishing proof of specified grounds at the instance of the party seeking avoidance of enforcement of a foreign award. Scope for avoiding enforcement of a foreign award appears to have been kept deliberately narrow. Thus, errors which can be corrected under Delaware law in appeal against such award cannot by themselves constitute grounds to assail the execution of the award under Section 48 of the said Act. The submissions based on subrogation and alleged breach at the instance of DMC MCL being wrongly inputted to all the respondents are without any proof and touch the merits of the findings of the International Arbitral Tribunal.
24. The learned Single Judge while considering aforesaid objections to the prayer for enforcement of the foreign award has recorded a finding that the enforcement of said award was liable to be refused under provisions of Section 48 (1) (c), (d) and (e). There is no dispute between parties that in the application raising objections to the enforcement of the award, there were no pleadings with regard to grounds in relation to Section 48 (1) (e) of the said Act. An objection based on Section 48 (1) (e) of the said Act was also not urged before us. There was some dispute between the parties with regard to ground as contemplated by Section 48 (1) (b) of the said Act being canvassed for consideration before the learned Single Judge. The objection raised by the respondent No. 1 to the statement of claim does not indicate such ground based on Section 48 (1) (b) of the said Act being pleaded. A plea regarding absence of notice has been raised by the respondent No. 2 in its objection dated 5th March, 2016. However, in paragraphs 5 to 7 thereof, it has been stated that despite not being a signatory to the Representation Agreement, it was compelled to participate in the arbitration proceedings which it did by engaging Counsel. Nevertheless, as said ground based on aforesaid clause finds place in the judgment of learned Single Judge as being urged and as invocation of the said ground is also based on the plea that the respondents were not signatories to the arbitration agreement, we have taken the same into consideration.
Hence, for foregoing reasons, the finding recorded by the learned Single Judge that the award passed by the International Arbitral Tribunal is hit by the provisions of Section 48 (1) (c), (d) and (e) of the said Act cannot be sustained. We also do not find the said award being hit by the provisions of Section 48 (1) (b) of the said Act. The respondents have not furnished any proof in support of their objections that would enable us to refuse enforcement of the foreign award under Section 48 (1) (b) to (d) of the said Act.
25. The provisions of Section 48 (2) (b) of the said Act have been the subject-matter of judicial interpretation. In Shri Lal Mahal Ltd. (supra), the Honourable Supreme Court while considering the scope of the provisions of Section 48 (2) (b) of the said Act as it stood prior to its amendment held that the application of "public policy of India" doctrine for the purposes of Section 48 (2) (b) was more limited than the application of the expression in respect of an award of a domestic Arbitral Tribunal. In paragraph 29 of the said report, it observed thus:-
"We accordingly hold that enforcement of foreign award would be refused under Section 48 (2) (b) only if such enforcement would be contrary to (1) fundamental policy of Indian law; or (2) the interests of India; or (3) justice or morality. The wider meaning given to the expression "public policy of India" occurring in Section 34 (2) (b) (ii) in Saw Pipes is not applicable where objection is raised to the enforcement of the foreign award under Section 48 (2) (b)."
Thereafter in Oil and Natural Gas Corporation Ltd. (supra), a Bench of three learned Judges of the Honourable Supreme Court of India while considering the provisions of Section 34 (2) (b) of the said Act, considered the question as to what would constitute the "fundamental policy of Indian law". In that context a reference was made to three distinct and fundamental juristic principles to be the part and parcel of the fundamental policy of Indian law. These were adopting a judicial approach, determining rights and obligations of parties before it in accordance with the principles of natural justice, application of mind to the attendant facts and circumstances of the dispute and the principle of reasonableness in the decision. In its subsequent decision in Associate Builders (supra), which was again a case relating to a domestic award, the Honourable Supreme Court, after referring to its earlier decision in Oil and Natural Gas Corporation Ltd. (supra), reiterated the aforesaid tests laid down in said decision and further observed that if an award was against justice or morality, the same was liable to be set aside. It further held that even in case of patent illegality the award would be vulnerable. The scope of the expression "fundamental policy of Indian law" thus stands duly interpreted by the Honourable Supreme Court in the aforesaid decisions.
26. It is, however, to be noted that the provisions of Section 48 (2) of the said Act have been amended by Act No. 3 of 2016, which amendment has come into force on 23rd October, 2015. Explanations 1 and 2 have been substituted in place of the existing explanation. Section 48 (2) of the said Act, as amended now reads thus :-
"Enforcement of an arbitral award may also be refused if the Court finds that -(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or(b) the enforcement of the award would be contrary to the public policy of India.[Explanation 1 - For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, -(i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or(ii) it is in contravention with the fundamental policy of Indian law; or(iii) it is in conflict with the most basic notions of morality or justice.][Explanation 2 - For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.]."
Judicial interpretation of the expression "fundamental policy of Indian law" as laid down in the decisions referred to herein above has now become part of the statutory provision itself. The explanations being clarificatory in nature and for avoidance of doubt, it is obvious that same would have to be treated as being in existence since the enactment of the principal provision itself. Explanation 2 as added now prohibits a review on the merits of the dispute while considering a challenge to the enforcement of a foreign award on the ground that it is in contravention with the fundamental policy of Indian law.
27. Considering the expression "public policy of India" in the aforesaid context, we do not find any sufficient material on record to conclude that while making the foreign award, there was lack of judicial approach or that the rights and obligations of parties before the International Arbitrator were decided in breach of principles of natural justice. Similarly, the award having been shown to have been passed after taking into consideration applicable Delaware Law, it cannot be said that it suffers from non-application of mind to the attendant facts and circumstances of the dispute or that there is absence of reasonableness in the decision.
In Associate Builders (supra), the Honourable Supreme Court has cautioned that while applying the "public policy" test, the Court does not act as a Court of appeal and a possible view by the arbitrator has necessarily to pass the muster. Similarly, disregarding the binding effect of a judgment of a superior Court has been considered violative of the fundamental policy of Indian law. Thus, if the principle of lifting the corporate veil as an exception to the existence of a distinct corporate personality of a Company or its shareholders is well recognized in India and the International Arbitral Tribunal after following precedents of the State of Delaware has applied the same while passing the award, this exercise would not violate the fundamental policy of India to the extent of disregarding binding precedents. We are also not required to "have a second look at the foreign award" so as to enter into its merits, as observed in Shri Lal Mahal Ltd. (supra).
28. The decision in Hemant D. Shah [supra] holds that third party property in which neither of the parties to the agreement has any right, title or interest cannot be the subject matter of dispute in pending arbitration proceedings between parties to the agreement. In the facts of the present case, the ratio of aforesaid decision cannot be made applicable to the case in hand. In Jindal Drilling & Industries Ltd. [supra], the Court was dealing with challenge raised to a domestic award under Section 34 of the said Act. The arbitral tribunal had recorded a finding that on the evidence led by parties, no case had been made out to lift the corporate veil. The learned Single Judge found that this finding was not perverse for being interfered with under Section 34 of the said Act.
Since we have found in the facts of the present case that the International Arbitral Tribunal by applying precedents under Delaware law was justified in piercing the corporate veil, we do not find that the aforesaid decision assists the case of the respondents. Similarly, in the view that we have taken, the ratio of the decision of the Honourable Supreme Court in Shin-Etsu Chemical Company Ltd. [supra] does not support the stand of the respondents. In Khardah Company Ltd. v. Raymon & Company [MANU/SC/0428/1962 : AIR 1962 SC 1810] on which reliance was placed before the learned Single Judge, while considering proceedings under Section 33 of the Arbitration Act, 1940, it was held that in the absence of an arbitration agreement, the question of acquiescence would not arise. There would be no question of estoppel from challenging the validity of the award. We do not find the ratio of said decision assisting the case of the respondents.
29. Though it was submitted on behalf of the respondent No. 1 that the finding recorded by learned Single Judge that the entire award in question was a foreign award was incorrect and said finding was required to be corrected by holding that it was a foreign award only between the appellant and DMC MCL, we are not in a position to accept said submission. Once it is found that the respondents were joined as parties to the arbitration proceedings of which they had notice and after piercing the corporate veil of DMC MCL, the International Arbitrator has proceeded to pass the award, it cannot be said that it was a foreign award only between signatories to the arbitration agreement. By applying the precedents of the State of Delaware, the Arbitrator had proceeded to pierce the corporate veil and pass award against all the parties. The said finding recorded by the learned Single Judge that the award was a foreign award qua all the respondents, therefore, does not deserve to be interfered with.
Conclusions
30. Thus, from the material on record and on the basis of the respective contentions of the parties, we find that the appellant has produced before the Court the necessary material as contemplated by Section 47 (1) of the said Act. In fact, learned Single Judge has on the basis of aforesaid material passed decree in terms of award dated 28th March, 2010 against DMC MCL. We further find that the respondents have failed to make out any ground under Section 48 of the said Act which would enable the Court to refuse enforcement of the foreign award against them. Thus, on being satisfied that the foreign award is enforceable under Chapter I of Part II of the said Act in terms of provisions of Section 49 of the said Act, the foreign award dated 28th March, 2010 is deemed to be a decree of the Court.
31. As a sequel to the aforesaid, the following order is passed:-
ORDER"[a] The judgment of learned Single Judge in Miscellaneous Civil Application No. 1319 of 2015 dated 18th April, 2016 to the extent the foreign award dated 28th March, 2010 passed by the International Arbitration Tribunal in ICDR Case No. 50-181-T-00327-09 has been held to be unenforceable in India against the respondents is set aside.[b] It is held that the aforesaid foreign award dated 28th March, 2010 is enforceable against the respondents.[c] Decree in terms of aforesaid foreign award dated 28th March, 2010 is passed against the respondents.[d] The Arbitration Appeal is allowed in aforesaid terms with parties left to bear their own costs."
32. At this stage, learned Counsel for the respondents seeks stay to the implementation of this judgment. This request is opposed by the learned Counsel for the appellant. However, in the facts of the case, the implementation of the present judgment is stayed for a period of six weeks from today and the stay shall cease to operate automatically thereafter.
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