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‘Usually Court Not Required To Examine Merits Of Interpretation Provided In Award By Arbitrator, If Such Interpretation Was Reasonably Possible’: SC [Read Judgment]

first_imgTop Stories’Usually Court Not Required To Examine Merits Of Interpretation Provided In Award By Arbitrator, If Such Interpretation Was Reasonably Possible’: SC [Read Judgment] Mehal Jain14 May 2020 10:25 PMShare This – xIn setting aside an arbitral award, the Supreme Court recently suggested that courts may not examine the merits of the interpretation provided in the award by the arbitrator, unless they were of the view that such an interpretation was reasonably not possible. The Court was faced with the question whether the interpretation provided to the contract in the award of the Tribunal was…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginIn setting aside an arbitral award, the Supreme Court recently suggested that courts may not examine the merits of the interpretation provided in the award by the arbitrator, unless they were of the view that such an interpretation was reasonably not possible. The Court was faced with the question whether the interpretation provided to the contract in the award of the Tribunal was reasonable and fair, so that the same passes the muster under Section 34 of the Arbitration Act.  Delving into the ambit and scope of the court’s jurisdiction under Section 34 of the Arbitration Act (Application for setting aside arbitral award), the bench headed by Justice N. V. Ramana acknowledged that it is a settled position that a Court can set aside the award only on the grounds as provided in the Arbitration Act. “It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning”, stated the bench. However, in the present case, Oil India Ltd. had argued that the view taken by the Arbitral Tribunal was not even a possible interpretation, therefore the award being unreasonable and unfair suffers from perversity. Hence, the respondent had pleaded that the award ought to be set aside. “In this context, we may state that usually the Court is not required to examine the merits of the interpretation provided in the award by the arbitrator, if it comes to a conclusion that such an interpretation was reasonably possible”, clarified the bench Facts of the case The Appellant was awarded the work order pursuant to a tender floated by the Respondent-government enterprise in 1994. The contract agreement was for the purpose of well drilling and other auxiliary operations in Assam. During the subsistence of the contract, the prices of High­ Speed Diesel (“HSD”), one of the essential materials for carrying out the drilling operations, increased. Appellant raised a claim that increase in the price of HSD, an essential component for carrying out the contract triggered the “change in law” clause under the contract (i.e., Clause 23) and the Respondent became liable to reimburse them for the same. The said Clause 23 is entitled ‘Subsequently Enacted Laws’, and reads, “Subsequent to the date of price of Bid Opening if there is a change in or enactment of any law or interpretation of existing law, which results in additional cost/reduction in cost to Contractor on account of the operation under the Contract, the Company/Contractor shall reimburse/pay Contractor/Company for such additional/reduced cost actually incurred”. The Arbitral Tribunal held that while an increase in HSD price through a circular issued under the authority of State or Union is not a “law” in the literal sense, but has the “force of law” and thus falls within the ambit of Clause 23. While the District Court, in a challenge under section 34, upheld the award, the Gauhati High Court, on appeal under section 37 of the Arbitration Act, set aside the award. “I am of the firm view that clause 23 was inserted in the agreement to meet such uncertain and unforeseen eventualities and certainly not for revising a fixed rate of contract. I also find that both parties had agreed to keep ‘force majeure’ clause in the agreement. Under this doctrine of commercial law, a contract agreement can be rescinded for acts of God, etc. Under clause 44.3 of the agreement, ‘force majeure’ has been clearly defined, which includes acts and regulations of the Government to rescind a contract. In this way, clause 23 is very close and akin to the ‘force majeure clause’. Besides this, I may also declare that clause 23 is pari materia to the ‘doctrine of frustration and supervening impossibility’. In other words, under clause 23 rights and obligations of both the parties have been saved due to any change in the existing law or enactment of a new law or on the ground of new interpretation of the existing law”, ruled the High Court. Conclusions of the Apex Court In as much as the High Court suggested that Clause 23 is akin to a force majeure clause, the bench proceeded to discuss “the utility and implications of a force majeure clause”- “Under Indian contract law, the consequences of a force majeure event are provided for under Section 56 of the Contract Act, which states that on the occurrence of an event which renders the performance impossible, the contract becomes void thereafter. When the parties have not provided for what would take place when an event which renders the performance of the contract impossible, then Section 56 of the Contract Act applies. When the act contracted for becomes impossible, then under Section 56, the parties are exempted from further performance and the contract becomes void” The Apex Court continued to observe that the Contract Act had already recognised the harsh consequences of such frustration to some extent and had provided for a limited mechanism to ameliorate the same under Section 65 of the Contract Act, which imposes the Obligation of restitution on the person who has received advantage under the void agreement or the contract that becomes void. The Court also noted that, in the present case, the contract has explicitly recognised force majeure events to include “systems and acts and regulations of the Government of India and other clauses”. “Further, under Clause 22.23, the parties had agreed for a payment of force majeure rate to tide over any force majeure event, which is temporary in nature”, reads the judgment. “Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract”, held the bench. As regards the Arbitral Tribunal, the three-judge bench remarked, “The majority award utilises ‘liberal interpretation rule’ to construe the contract, so that the price escalation of HSD could be brought under the Clause 23 of the contract. Further the Arbitral Tribunal identifies the aforesaid clause to be a ‘Habendum Clause’, wherein the rights granted to the appellant are required to be construed broadly”. The top court reflected that The interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. “It is important to note that the contract price was payable to the ‘contractor’ for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled.From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase”, inferred the bench. “If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion”, it ruled. The Supreme Court reached the conclusion that the interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, taking note of the other contractual terms which also suggest that such interpretation of the clause is is perverse- “For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contractor, at his expense”. “The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract”, decided the Court.Click Here To Download Judgment[Read Judgment]Next Storylast_img read more

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First whiskey distilled in Donegal in almost 160 years

first_img Arranmore progress and potential flagged as population grows By News Highland – July 29, 2020 First whiskey distilled in Donegal in almost 160 years Facebook AudioHomepage BannerNews WhatsApp Publicans in Republic watching closely as North reopens further Google+ Loganair’s new Derry – Liverpool air service takes off from CODA Pinterest Twitter Twittercenter_img Previous articleReturn of the bar stool?Next articleShort stay ward fully open but fears over looming winter News Highland Pinterest Important message for people attending LUH’s INR clinic Google+ WhatsApp RELATED ARTICLESMORE FROM AUTHOR Nine til Noon Show – Listen back to Monday’s Programme Community Enhancement Programme open for applications Whiskey has been legally distilled in Donegal for the first time in almost 160 years.Sliabh Liag Distillers confirmed this week that a double distilled smoky spirit made from Irish peated malt has been filled into a cask.The company says it’s part of the research and development process which is set to continue while the their new whiskey distillery at Ardara is under construction.Co-owner James Doherty says there is a history of whiskey distillation in Donegal, and that’s a heritage that Sliabh Liag Distillers want to reclaim and build on.However, he says it will be years before locally distilled whiskey can be bottled and sold………..Audio Playerhttps://www.highlandradio.com/wp-content/uploads/2020/07/jameswdfgdfgdfgdhiskey1pm.wav00:0000:0000:00Use Up/Down Arrow keys to increase or decrease volume. Facebooklast_img read more

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49ers at Rams: 5 ways to stay undefeated

first_imgJimmy Garoppolo wasn’t aware Wednesday that blackouts were hitting Northern California’s power grid or even why precautionary measures are needed for fire season.He’s been so embedded in the 49ers season, so focused on maintaining their undefeated record come Sunday’s ultimate test against the host Los Angeles Rams.Two years ago, in Garoppolo’s last appearance at the Los Angeles Memorial Coliseum, he capped a 5-0 December debut as the 49ers starting quarterback. That was part of the …last_img read more

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HMM 2M to Look at Other Cooperation Possibilities

first_imgzoom After some five months of talks with South Korea’s shipping firm Hyundai Merchant Marine (HMM) on the possibility of HMM to join the world’s largest alliance 2M, the parties have now decided “to look at other cooperation possibilities.”Since July 2016, the alliance, comprising shipping giants Maersk Line and Mediterranean Shipping Company (MSC), has been in discussions with the Korean container carrier on HMM joining the 2M vessel sharing agreement (2M VSA).The parties “discussed the possibility of HMM joining 2M as an operating partner,” according to a spokesperson from Maersk Line, however, the talks have now shifted to the possibility of HMM partnering with the 2M network through a slot exchange and purchase agreement.“The partnership discussions are ongoing and include the possibility of Maersk Line taking over charters and operations of vessels currently chartered to HMM with the aim of deploying them in the 2M network,” the spokesperson said, adding that “the discussions include how we can improve our products on the Pacific trade.”As the discussions are on-going, the parties declined to comment further until there is any substantial development, Mearsk Line noted.Hyundai Merchant Marine was looking to join the 2M alliance after their membership in the G6 alliance expires in 2017.The move, which was made amid the current weak demand in the container shipping industry, was part of HMM’s debt restructuring plan.World Maritime News Stafflast_img read more

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Cops nab Kausar from Hasnabad

first_imgKolkata: Police arrested Kausar Ali Dhali, the kingpin of the racket that used to sell dead chicken, from a village at Hasnabad in North 24-Parganas on Thursday morning.Police said that he had a plan to flee to Bangladesh, to avoid getting arrested. He was booked under different sections of the Indian Penal Code (IPC) and section 51 of the Food Safety and Security Act, 2006.With the arrest of Kausar, the total number of people arrested in this connection rose to six. Earlier, police had arrested five people during a raid at the chicken farm owned by Kausar in New Town. Also Read – Heavy rain hits traffic, flightsThe raid was conducted on April 27 and police had recovered a huge quantity of carcass meat from the refrigerators in the farm. Investigation had revealed that they used to preserve dead chicken in the refrigerators, which was sold to different eateries.Kausar had managed to flee from the farm when the raid was conducted. The police were in search of Kausar for the past few weeks. It was on Wednesday that the police received a tip-off that he was hiding in a village in Hasnabad. A team comprising police officers from Airport Police Station and Detective department conducted a raid and arrested Kausar. Also Read – Speeding Jaguar crashes into Merc, 2 B’deshi bystanders killedThe police had earlier conducted raids in the houses of Kausar and had also visited his in-laws’ house. But he had managed to flee every time.Police came to know during the investigation that he had been hopping from one village to another in Hasnabad and its adjoining places to avoid getting arrested. The reason behind taking shelter in a hideout in the bordering area was that he was in search of the moment when he could flee to the neighbouring country. Investigation has further revealed that he had initiated his business of selling chicken a few years ago. He later stepped into the illegal trade of selling dead chicken to eateries and made fast money.The police have started questioning him and are trying to find out names of other people who were involved in the racket. Sources said that the police are also going to prepare a list containing names of the eateries to which Kausar had supplied carcass meat, following which they would take further steps.last_img read more

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Samsung opens its AI based Bixby voice assistant to thirdparty developers

first_img“Our goal is to offer developers a robust, scalable and open AI platform that makes it easy for them to launch and evolve the amazing experiences they create for our users,” -Kyunghak Hyun, Product Manager of the AI Product Management Group at Samsung. At Samsung Developer Conference 2018, the company announced the opening of Bixby Developer Studio, an Integrated Development Environment (IDE), to developers. This will allow third party developers to build functionalities for the Artificial Intelligence (AI) assistant. Viv Labs CEO/ Siri co-founder Dag Kittlaus told the crowd that their dev tools are “way ahead of the other guys”.  The company will also be introducing Bixby Marketplace, for users to understand the new functionality of their voice assistant. This will even help developers make money using the functionalities of this intelligent companion. Bixby, that started as a practical way to use voice to interact with the phone, will now evolve into a scalable, open AI platform to support watches, refrigerators, tablets, washing machine, and many more devices. Developers will gain access to the same development tools that Samsung’s internal developers use to create Bixby Capsules, which will be used by them to build to add features to Bixby. Just like Skills on Google Alexa, developers can create custom Bixby interactions that can be added to various devices in the future. Samsung said the move was in line to support the company’s goal of building a scalable, open Artificial Intelligence (AI) platform where developers and service providers can access tools to bring Bixby to more people and devices around the world. As another initiative to scale Bixby services, Samsung is planning to expand support to five new languages- including British English, French, German, Italian and Spanish – in the coming months. This will especially be crucial to source Bixby-enabled devices like the Galaxy Home and smart fridges all around the globe. Samsung also demonstrated the capabilities of Bixby at the conference. The demo included Bixby helping a user in booking a hotel by opening various portals used in the process. This move – along with expanding Bixby to more devices and expanding support for more languages – is seen as Samsungs effort to increase Bixby’s recognition around the globe. You can read more about this news at Techcrunch. Read Next Cisco Spark Assistant: World’s first AI voice assistant for meetingsVoice, natural language, and conversations: Are they the next web UI?12 ubiquitous artificial intelligence powered apps that are changing liveslast_img read more

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