Case: Great Offshore Ltd Vs. Iranian Offshore Engineering &amp; Construction Company

parties stamp the agreement. It would be incorrect to disturb the Parliaments intention when it is so clearly stated and when it in no way conflicts with the Constitution.66. Third, nothing in Section 7 suggests that the parties must sign every page. Once again, if I take the respondents argument to its logical conclusion, I would have no choice but to read language into the Act that is not there. Even if the faxed CPA is construed as a "document," it need only be "signed by the parties" pursuant to Section 7(4)(a). Every page does not need to be signed. If it is considered a "document," then this requirement would be met. As established above, both parties signed the faxed CPA in the signature box at the bottom of Part I. That said, the faxed CPA more closely fits within Section 7(4)(b)s requirements.67. Fourth, Section 7(4)(b) states that an agreement is in writing if it is contained in "an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement." This section covers agreements that are sent via facsimile ("fax") as they are "other means of telecommunication". "Fax" is defined as "a machine that scans documents electronically and transmits a photographic image of the contents to a receiving machine by telephone line" or "a document received by such a machine." [See: Chambers 21st Century Dictionary, Allied Publishers Limited (1996)]. This definition clearly provides that a fax falls under "other means of telecommunication." Thus, faxed agreements are acceptable under Section 7 of the Act.68. Section 7(4)(b) further requires us to ask whether a record of the agreement is found in the telecommunication, in this case a fax. What could be a better record of the agreement than the signatures of the parties themselves? As noted above, with no evidence to indicate that the respondents signature was forged, the faxed CPA stands on its own as the record of agreement. Likewise, Section 7(4)(b) stands satisfied.69. The court has to translate the legislative intention especially when viewed in light of one of the Acts "main objectives": "to minimise the supervisory role of Courts in the arbitral process. [See: Statements of Objects and Reasons of Section 4(v] of the Act].70. If this Court adds a number of extra requirements such as stamps, seals and originals, we would be enhancing our role, not minimising it. Moreover, the cost of doing business would increase. It takes time to implement such formalities. What is even more worrisome is that the parties intention to arbitrate would be foiled by formality.71. Such a stance would run counter to the very idea of arbitration, wherein tribunals all over the world generally bend over backwards to ensure that the parties intention to arbitrate is upheld. Adding technicalities disturbs the parties "autonomy of the will" (l autonomie de la volonti), i.e., their wishes. [For a general discussion on this doctrine see Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London, 1986 at pages 4 and 53].72. Technicalities like stamps, seals and even signatures are red tape that have to be removed before the parties can get what they really want - an efficient, effective and potentially cheap resolution of their dispute. The autonomie de la volonti doctrine is enshrined in the policy objectives of the United Nations Commission on International Trade Law ("UNCITRAL") Model Law on International Commercial Arbitration, 1985, on which our Arbitration Act is based. [See Preamble to the Act]. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention.73. One of the objectives of the UNCITRAL Model Law reads as under:- "the liberalization of international commercial arbitration by limiting the role of national courts, and by giving effect to the doctrine "autonomy of will," allowing the parties the freedom to choose how their disputes should be determined." [See Policy Objectives adopted by UNCITRAL in the preparation of the Model Law, as cited in Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London (1986) at page 388 (citing UN doc.A/CN.9/07, paras 16-27]. 74. It goes without saying, but in the interest of providing the parties a comprehensive review of their arguments, I note that once it is established that the faxed CPA is valid, it follows that a valid contract and a valid arbitration clause exist. This contract, the faxed CPA, does not suffer from a conditional clause, as did the Letter of Intent. Thus, the respondents argument that the parties were not ad idem must fail.75. I have heard the learned counsel appearing for the applicant and the respondent at length. I have carefully reviewed the entire correspondence between the parties. The charter party agreement that had been signed by the applicant and the respondent clearly indicated that the parties have entered into a valid and concluded contract. The other correspondence between the parties also leads to a definite conclusion: the parties have entered into a valid contract containing an arbitration clause. Since a dispute has arisen between the applicant and the respondent, it needs to be referred to the arbitrator.76. On consideration of the totality of the facts and circumstances, I am clearly of the opinion that the applicant is entitled in law to an order for appointment of a sole arbitrator. Consequently, I request Honble Justice S.N. Variava, the retired Judge of the Supreme Court, to accept this arbitration. The learned arbitrator would be at liberty to fix his own fee. I direct the parties to appear before the learned arbitrator on 8th September, 2008 or any date convenient to the learned arbitrator.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]57. There is no evidence to suggest that the faxed CPA was forged. To the contrary, the evidence we do have is the faxed CPA bearing the parties signatures coupled with correspondence between the parties. The correspondence, as it is more than just a pleading, adds additional weight to the applicants story. The applicants letter of 21st October corroborates the allegation that Ali Rahmati delivered the faxed CPA to the applicant on 12th September. The date of delivery of 12th September fits the timeline provided on the fax header, as the respondent could only have delivered the faxed CPA after 8th September. Moreover, it appears that having received the faxed CPA on 12th September, the applicant was prompted to ask for the original vide email on 14th September. Once again, the dates match up.58. The fax header, on its face, suggests that the document is genuine. This conclusion is bolstered by the above-mentioned correspondence. Thus, I find that the applicant had discharged its initial burden of sufficiently proving that the faxed CPA was not forged. The onus shifted to the respondent to prove that its signature was forged. With no evidence to support its assertion, the respondent cannot discharge its onus. Therefore, I find that the faxed CPA is legitimate and is not a product of forgery. As such, I need not look for the existence of a contract on the basis of the LOI of 23rd June.The respondent makes much of the fact that the "faxed CPA" of August 22nd is (1) a copy, not the original; (2) is stamped by one, not by both parties; (3) one of the parties did not sign every page; and (4) it was first sent vide fax.63. Section 7 defeats all four assertions. First, there is no requirement that the arbitration agreement be an original. Where the statute has gone to great lengths to define exactly what is meant by the term "in writing," we are precluded from adding another term to definition. Indeed, "it is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so." [See: Justice G.P. Singhs Principles of Statutory Interpretation, 11th Edition, 2008, at page 62.63, citing to Renula Bose (Smt.) v. Rai Manmathnath Bose, AIR 1945 PC 108 , p. 110; Stock v. Frank Jones (Tiptan) Ltd., (1978) 1 All ER 948, p.951; Assessing Authority-Cum-Excise and Taxation Officer, Gurgaon & Another v. East India Cotton Mfg. Co. Ltd., Faridabad (1981) 3 SCC 531 ].64. An exception to this rule can be made. But before adding words to a statute, "... the Court must be abundantly clear of three matters: (1) the intended purpose of the statute or provision in question, (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have used, had the error in the Bill been noticed." [See: Justice G.P. Singhs Principles of Statutory Interpretation, 11th Edition, 2008 at page 75 citing to Inco Europe Ltd. v. First Choice Distribution (a firm) (2000) 2 All ER 109, at page 115 (HL)]. As I mention below, one of the main objectives of the Arbitration and Conciliation Act, 1996 is to minimise the role of the Court; adding additional requirements to the Act is antithetical to such a goal.65. Second, the plain language of Section 7 once again governs my conclusion. Section 7 does not require that the parties stamp the agreement. It would be incorrect to disturb the Parliaments intention when it is so clearly stated and when it in no way conflicts with the Constitution.66. Third, nothing in Section 7 suggests that the parties must sign every page. Once again, if I take the respondents argument to its logical conclusion, I would have no choice but to read language into the Act that is not there. Even if the faxed CPA is construed as a "document," it need only be "signed by the parties" pursuant to Section 7(4)(a). Every page does not need to be signed. If it is considered a "document," then this requirement would be met. As established above, both parties signed the faxed CPA in the signature box at the bottom of Part I. That said, the faxed CPA more closely fits within Section 7(4)(b)s requirements.67. Fourth, Section 7(4)(b) states that an agreement is in writing if it is contained in "an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement." This section covers agreements that are sent via facsimile ("fax") as they are "other means of telecommunication". "Fax" is defined as "a machine that scans documents electronically and transmits a photographic image of the contents to a receiving machine by telephone line" or "a document received by such a machine." [See: Chambers 21st Century Dictionary, Allied Publishers Limited (1996)]. This definition clearly provides that a fax falls under "other means of telecommunication." Thus, faxed agreements are acceptable under Section 7 of the Act.68. Section 7(4)(b) further requires us to ask whether a record of the agreement is found in the telecommunication, in this case a fax. What could be a better record of the agreement than the signatures of the parties themselves? As noted above, with no evidence to indicate that the respondents signature was forged, the faxed CPA stands on its own as the record of agreement. Likewise, Section 7(4)(b) stands satisfied.69. The court has to translate the legislative intention especially when viewed in light of one of the Acts "main objectives": "to minimise the supervisory role of Courts in the arbitral process. [See: Statements of Objects and Reasons of Section 4(v] of the Act].70. If this Court adds a number of extra requirements such as stamps, seals and originals, we would be enhancing our role, not minimising it. Moreover, the cost of doing business would increase. It takes time to implement such formalities. What is even more worrisome is that the parties intention to arbitrate would be foiled by formality.71. Such a stance would run counter to the very idea of arbitration, wherein tribunals all over the world generally bend over backwards to ensure that the parties intention to arbitrate is upheld. Adding technicalities disturbs the parties "autonomy of the will" (l autonomie de la volonti), i.e., their wishes. [For a general discussion on this doctrine see Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London, 1986 at pages 4 and 53].72. Technicalities like stamps, seals and even signatures are red tape that have to be removed before the parties can get what they really want - an efficient, effective and potentially cheap resolution of their dispute. The autonomie de la volonti doctrine is enshrined in the policy objectives of the United Nations Commission on International Trade Law ("UNCITRAL") Model Law on International Commercial Arbitration, 1985, on which our Arbitration Act is based. [See Preamble to the Act]. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention.73. One of the objectives of the UNCITRAL Model Law reads asliberalization of international commercial arbitration by limiting the role of national courts, and by giving effect to the doctrine "autonomy of will," allowing the parties the freedom to choose how their disputes should be determined." [See Policy Objectives adopted by UNCITRAL in the preparation of the Model Law, as cited in Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London (1986) at page 388 (citing UN doc.A/CN.9/07, paras 16-27].It goes without saying, but in the interest of providing the parties a comprehensive review of their arguments, I note that once it is established that the faxed CPA is valid, it follows that a valid contract and a valid arbitration clause exist. This contract, the faxed CPA, does not suffer from a conditional clause, as did the Letter of Intent. Thus, the respondents argument that the parties were not ad idem must fail.75. I have heard the learned counsel appearing for the applicant and the respondent at length. I have carefully reviewed the entire correspondence between the parties. The charter party agreement that had been signed by the applicant and the respondent clearly indicated that the parties have entered into a valid and concluded contract. The other correspondence between the parties also leads to a definite conclusion: the parties have entered into a valid contract containing an arbitration clause. Since a dispute has arisen between the applicant and the respondent, it needs to be referred to the arbitrator.76. On consideration of the totality of the facts and circumstances, I am clearly of the opinion that the applicant is entitled in law to an order for appointment of a sole arbitrator. Consequently, I request Honble Justice S.N. Variava, the retired Judge of the Supreme Court, to accept this arbitration. The learned arbitrator would be at liberty to fix his own fee. I direct the parties to appear before the learned arbitrator on 8th September, 2008 or any date convenient to the learned arbitrator.