IMAX CORPORATION versus M/S E-CITY ENTERTAINMENT (I) PVT. LTD.
[2017] 4 S.C.R. 833, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2017] 4 S.C.R. 833 
IMAX CORPORATION 
v. 
MIS E-CITY ENTERTAINMENT (I) PVT. LTD. 
(Civil Appeal No. 3885 of 2017) 
MARCH 10, 2017 
[S. A. BOBDE AND ASHOK BHUSHAN, JJ.] 
A 
B 
Arbitration and Conciliation Act, 1996: s.34 - Petition under, 
maintainability before Indian courts - Jn the instant case, ICC Rules 
were chosen by parties to govern arbitration proceedings -
C 
International Court of Arbitration decided that London would be 
·juridical seat of arbitration by virtue of Art.14(1) of ICC Rules -
Held: The parties did not choose the place of arbitration -
There 
was however an agreement to have the arbitration conducted 
according to the ICC rules and thus a willingness that the seat of 
arbitration may be outside India - In any case, the parties having D 
agreed to have the seat decided by the ICC and the ICC having 
chosen London after consulting the parties and the parties having 
abided by the decision, it must be held that upon the decision of the 
ICC to hold the arbitration in London, the parties agreed that the 
seat shall be in London for all practical purposes - Therefore, 
E 
applicability of Part-I of the Act should be excluded- Petition u/s.34 
was not maintainable. 
Allowing the appeal, the Court 
HELD: 1. Clause 14 of the Agreement deals with two 
matters: (i) the laws which will govern the agreement; and (ii) a 
F 
provision of settling disputes by arbitration. As regards the first, 
it provides that in case a question arises as to the agreement i.e.
what the agreement means or what the parties intended, it shall 
be interpreted according to the laws of Singapore and these laws 
will govern the understanding and the acts of the parties. Further, 
in case the parties resort to a court, they shall approach the courts G 
of Singapore which alone shall adjudicate upon the issue. The 
courts of Singapore will thus adjudicate in relation to any non-
arbitrable dispute that might arise under the agreement or possibly 
a dispute regarding the correctness or validity of an arbitration 
H 
833
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A award. It is not necessary to consider whether a challenge to the 
award would lie in Singapore in this case because the award in 
fact was made in London and in any case no party has approached 
the court in Singapore. Secondly, this clause provides that any 
dispute arising out of this agreement or concerning the rights, 
B duties or liabilities of the parties shall be settled by arbitration. 
The arbitration shall be pursuant to the ICC Rules of Arbitration. 
In other words, the parties shall invoke the ICC Rules of 
Arbitration in case a dispute arises between them concerning 
their rights, duties or liabilities. The intention is to have the 
dispute settled by and in accordance with the ICC Rules of 
C Arbitration. In this sense, the ICC Rules of Arbitration must be 
construed as being read into this clause. [Para 181 [841-D-H; 
842-A-C] 
2. The ICC Rules provide for the entire conduct of 
arbitration from its commencement to the passing of an award. 
D They provide that the arbitration shall be conducted by the court 
i.e. the International Court of Arbitration, appointed by the council 
of the ICC. A party wishing to have recourse to arbitration under 
the rules is required to submit a Request for Arbitration to the 
Secretariat of the ICC along with the information prescribed and 
in particular comments as to the place of arbitration. The ICC 
E Rules clearly stipulate that the seat of arbitration shall be fixed 
by the
court. In this case, the appellant had proposed the venue 
of arbitration to be Paris in France. Upon notice being issued, 
the respondent was obliged to file an answer including a comment 
concerning the number of arbitrators and their choice as to the 
F 
place of arbitration. The respondent, in their answer stated that 
the venue suggested by the claimant i.e. Paris in France would 
unnecessarily increase the cost of arbitration and therefore 
suggested that Singapore would be the most appropriate and 
convenient venue for the arbitration, vide "Answer to Request for 
Arbitration pursuant to Article 5(1) of the ICC Rules of Arbitration" 
G dated 30.08.2004. The International Court of Arbitration decided 
inter alia that London, United Kingdom will be the juridical seat· 
of the arbitration in view of Article 14(1) of the ICC Rules and, 
therefore, proceeded on the basis of the Part-I of the English 
Arbitration Act, 1996. The parties had agreed in pursuance of 
H the agreement to have the dispute decided in accordance with
IMAX CORPORATION v. MIS E-CITY ENTERTAINMENT (I) 
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th.e ICC Rules by submitting the dispute to the ICC. The court A 
(of the ICC) considered the stand of the parties on the venue for 
arbitration and fixed London as the seat of arbitration. [Para 19] 
[842-G-H; 843-A-B] 
3. In this case, there is an express choice of the law 
governing the contract as a whole i.e. Singaporean Law. There is 
B 
an express agreement that any arbitration would be governed by 
the ICC Rules of Arbitration. The general principle is that, in 
the absence of any contradictory indication, it shall be presumed 
that the parties have intended that the proper law of contract as 
well as the law governing the arbitration agreement is the same 
as the law of the country in which the arbitration is agreed to be 
C 
held. The arbitration clause contemplates an award made in 
pursuance to the ICC rules without specifying the applicable law 
for the arbitration agreement. It would therefore be appropriate 
to hold that the question of validity of the award should be 
determined in accordance with the law of the State in which the D 
arbitration proceedings have taken place i.e. the English Law. 
Where the parties have not expressly chosen the law governing 
the contract as a whole or the arbitration agreement in particular, 
the law of the country where the arbitration is agreed to be held 
has primacy. Here, an express choice has been made by the 
parties regarding the conduct of arbitration,
i.e., that a dispute 
E 
shall be finally settled by arbitration according to the ICC Rules 
of Arbitration. The parties have not chosen the place of 
arbitration. They have simply chosen the rules that will govern 
the arbitration, presumably aware of the provision in the rules 
that the place of arbitration will be decided by the ICC vide Article 
F 
14(1) of the ICC Rules. The ICC having chosen London, leaves 
no doubt that the place of arbitration will attract the law of UK in 
all matters concerning arbitration. [Paras 20-22] [843-D-E, H; 
844-A-D] 
Sakuma Exports Ltd. v. Louis Dreyfus Commodities 
G 
Suisse Sa (2015) 5 SCC 656; Harmony Innovation 
Shipping Ltd. v. Gupta Coal India Ltd. (2015) 9 SCC 
172: [2015) 2 SCR 697; Reliance Industries Ltd. v. 
Union of India (2014) 7 SCC 603 : [20141 6 SCR.456 
- distinguished. 
H
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A 
4.1 It is settled law in India that the provisions of Part-I of 
the Arbitration Act would apply to all arbitrations and all 
proceedings relating thereto. On a true construction of Clause 
14 in this case, there is no doubt the parties have agreed to 
exclude Part-I by agreeing that the arbitration would be conducted 
B in accordance with the ICC Rules. The parties were undoubtedly 
conscious that the ICC could choose a venue for arbitration 
outside India. That is sufficient to infer that the parties agreed 
to exclude Part-I. The ICC could well have chosen a venue in 
India. The possibility that ICC could have chosen India is not a 
counter indication of this inference. It could also be said that the 
C decision to exclude the applicability of Part-I was taken when the 
ICC chose London after consulting the parties. Either way Part-
I was excluded. The view that it is the law of the country where 
arbitration is held that will govern the arbitration and matters 
related thereto such as a challenge to the award is well entrenched. 
D [Paras 27-29] [846-B; 847-A-C] 
E 
F 
Bhatia International v. Bulk Trading S.A. and Am~ 
(2002) 4 SCC 105: (2002) 2 SCR 411; Venture Global 
Engg. v. Satyam Computer Services Ltd. (2008) 4 SCC 
190 : [2008) 1 SCR 501; Videocon Industries Limited 
v. Union of India (2011) 6 SCC 161 : (2011) 8 SCR 
569; Dozco India (P) Ltd. v. Doosan Infracore Co. Ltd. 
(2011) 6 SCC 179 : [2010) 12 SCR 259; Cauvery
Coffee Traders v. Horner Resources (International) Co. 
Ltd. (2011) 10 SCC 420 : [20111 12 SCR 473; Union 
of India v. Reliance Industries Ltd. (2015) 10 SCC 213 
: [2015) 10 SCR 85; Eitzen Bulk AIS v. Ashapura 
Minechem Ltd. (2016) 11 SCC 508 - relied on. 
4.2 The relationship between the seat of arbitration and 
the law governing arbitration is an integral one. The seat of 
arbitration is defined as the juridical seat of arbitration designated 
G by the parties, or by the arbitral institution or by the arbitrators 
themselves as the case may be. The place of arbitration 
determines the law that will apply to the arbitration and related 
matters like challenges to the award etc. If in pursuance of the 
arbitration agreement, the arbitration took place outside India, 
there is a clear exclusion of Part-I of the Arbitration Act. In the 
H
IMAX CORPORATION v. MIS E-CITY ENTERTAINMENT (I) 
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PVT. LTD. 
present case, the parties expressly agreed that the arbitration A 
will be conducted according to the ICC Rules of Arbitration and 
left the place of arbitration to be chosen by the ICC. The ICC in 
fact, chose London as the seat of arbitration after consulting the 
parties. The arbitration was held in London without demur from 
any of the parties; All the awards i.e. the two partial final awards, 
B 
and the third final award, were made in London and communicated 
to the parties. This is a clear case of the exclusion of Part-I. The 
High Court committed an error in observing that the seat of 
arbitration itself is not a decisive factor to exclude Part-I of the 
Arbitration Act. [Paras 30, 31 and 33] [847-F; 898-E-H; 849-A) · 
National Thermal Power Corporation v. Singer 
Company (1992) 3 SCC 551 : [19921 3 SCR 106 -
referred to. 
Redfern and Hunter on International Arbitration, Fifth 
Edition - referred to. 
Case Law Reference 
c2015) 5 sec 656 
distinguished 
Para 24 
[2015) 2 SCR 697 
distinguished 
Para 24 
[2014] 6 SCR 456 
distinguished 
Para 26 
[1992] 3 SCR 106 
referred to 
Para 27 
[2002) 2 SCR 411 
relied on 
Para 27 
[2008] 1 SCR 501 
relied on 
Para 27 
[2011] 8 SCR 569 
relied on 
Para 27 
(2010) 12 SCR 259 
relied on 
Para 27 
[2011) 12 SCR 473 
relied on 
Para 27 
(2015) 10 SCR 85 
relied on 
Para 27 
(2016) 11 sec 508 
relied on 
Para 27 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3885 
of
2017. 
From the Judgment and Order dated 10.06.2013 of the High Court 
of Bombay in Notice of Motion No. 2560 of2008 in AP (Lodging) No. 
525 of 2008. 
c 
D 
E 
F 
.G 
H
838 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A 
Pallav Shishodia, Sr. Adv., Chirag Joshi, Ghanshyam Joshi, Advs. 
B 
for the Appellant. 
Dr. A. M. Singhvi, Ms. Indu Malhotra, Sr. Advs., Ms. Shyel Trehan, 
Ms. Manjira Das Gupta, Ms. Madhavi Khanna, Ms. Akshita Sachdeva, 
Apoorva Bhumesh, Ms. Liz Mathew, Advs. for the Respondent 
The Judgment of the Court was delivered by 
S. A. BOBDE, J. 1. Leave granted. 
2. The appellant-Imax Corporation has challenged the interim 
order dated 10.06.2013 passed by the High Court of Judicature at 
C Bombay in Notice of Motion No.2560 of2008 in the Arbitration Petition 
(Lodging) No.525 of2008. 
3. By the aforementioned order, the High Court held that the 
petition under Section 34 of the Arbitration and Conciliation Act, 1996 
(for short, "the Arbitration Act") filed by the respondent-MIS E-City 
D Entertainment (I) Pvt. Ltd. against two partial final awards dated 
11.02.2006, 24.08.2007, and third final award dated 27.03.2008 was 
maintainable. 
The appellant had objected to the maintainability of the petition 
under Section 34 of the Arbitration Act on the ground that the arbitration 
E clause excluded the applicability of Part-I which contains the said section. 
4. The only issue before us is whether the petition under Section 
34 of the Arbitration Act is maintainable before a court in India, and in 
this case, the Bombay High Court. 
5. On 28.09.2000, the appellant entered into an agreement with 
F the respondent for a supply of large
format projection systems for cinema 
theatres to be installed in theatres all across India. Clause 14 of the 
agreement contained an arbitration clause which reads as follows: 
"This Agreement shall be governed by and construed 
according to the laws of Singapore, and the parties attorn to 
G 
the jurisdiction of the courts of Singapore. Any dispute arising 
out of this master agreement or concerning the rights, duties 
or liabilities of E-City or !max hereunder shall be finally 
settled by arbitration pursuant to the ICC Rules of 
Arbitration. " · 
H
IMAX CORPORATION v. MIS E-CITY ENTERTAINMENT (I) 
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PVT. LTD. [S. A. BOBDE, J.] 
6. On 16.06.2004, the appellant filed a request for arbitration A 
with the ICC, and claimed damages. On 08.10.2004, the ICC i.e. the 
chosen arbitral forum fixed London as the place of arbitration i.e. the 
juridical seat of arbitration, after consulting the parties. 
FIRST PARTIAL FINAL AWARD' 
7. On 11.02.2006, the first partial final award was made in favour 
B 
of the appellant declaring that the respondent was in breach of the 
agreement and therefore liable for damages. The award stated that the 
decision on the other issues, including damages/costs would be reserved 
for a future award. 
8. The aforementioned declaration was made after observing in 
C 
the award that the court of the ICC had decided to fix London as the 
juridical seat of arbitration in accordance with the powers vested in the 
court under Article 14(1) of the ICC Rules. The observation read as 
follows: 
"As well be noticed, no provision was made for .a venue for 
D 
any arbitration contemplated by Clause 14, but subsequently 
the court of the ICC decided on the 81" of October, 2004 to fix 
London as the juridical seat of the arbitration in accordance 
with the powers vested in the court under Article 14 of the 
ICC Rules. Accordingly, this is an arbitration to which Part-I 
E 
of the English Arbitration Act 1996 applies. " 
9. The appellant filed its statement of damages before the Arbitral 
Tribunal. The respondent
filed its statement of defence. 
10. On 05.09.2006 the respondent objected that the appellant has 
no legal status and the law firm representing them is not authorized to 
F 
pursue the arbitration. In that application, the respondent stated as 
follows: 
'The seat of this arbitration is London. Therefore, English 
law determines the effect of any want of capacity suffered by 
"/max Ltd" under the Canadian law as a result of its 
G 
amalgamation into /max Corporation with effect from l'' 
January, 2001." 
SECOND PARTIAL FINAL AWARD 
11. On 24.08.2007, the Arbitral Tribunal passed the second partial 
H
840 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A award rejecting the above objection filed by the respondent. By th.is 
award, the tribunal determined the quantum of damages payable to the 
appellant. This award was also made in London, the juridical seat of 
this arbitration. A sum of$9,406,148.31 was awarded to the appellant. 
B 
THIRD FINAL AWARD 
12. The Arbitral Tribunal passed a final award on 27.03.2008 on 
the issue of interest and costs. A sum of $1,118,558.54 by way of 
interest and a further sum of $2,512.60 per day from 01.10.2007 until 
the payment of the award was awarded in favour of the appellant. Sums 
of $400,000 and $384, 789 .21 by way of costs of arbitration fixed by 
c the ICC and costs by way of attorney's fees, expert fees and related 
expenses were also directed to be paid. Final award dated 27.03.2008 
was received by the respondent on 01.04.2008. 
The final award on the issues of interest and costs was 
amalgamated with the earlier awards; both of which were incorporated 
D by reference into itself. The third final award also stated that the place 
of arbitration is London. 
PETITION UNDER SECTION 34 BEFORE THE 
BOMBAY HIGH COURT 
13. On 21.07.2008, the respondent challenged the aforesaid 
E awards under Section 34 of the Arbitration Act before the Bombay High 
Court in India after a period of more than two years from the first 
partial award, more than one year from the second partial award and 
a period of 3 months, 24 days from the final award.
14. The learned Single Judge allowed the notice of motion on 
F the condonation of delay and held that the petition under Section 34 
was maintainable before the Bombay High Court. 
Hence, this appeal. 
15. The only question that arises for consideration before us is 
G whether the challenge to the award made by the respondent under 
Section 34 of the Arbitration Act is maintainable before a court in India. 
Clearly, if the answer is in the negative it'is not necessary to decide 
the question of delay. Thus, we make it clear that we are not deciding 
where else in the world a challenge to the award would be maintainable. 
H 
16. Dr. A.M. Singhvi, learned senior counsel for the respondent
IMAX CORPORATION v. MIS E-CITY ENTERTAINMENT (I) 
841 
PVT. LTD. [S. A. BOBDE, J.] 
relied on Clause VIII (2) of the Request for Arbitration dated 16.06.2004 A 
wherein the petitioner stated as follows: 
"VIII Place o(Arbitration. Law and Language 
(2) Section 14 of the letter Agreement is silent as to the place 
of the arbitration. Claimant believes that Paris and France 
are suitable places for arbitration to take place, indeed, this B 
is the venue chosen by the ICC for the related EML Arbitration 
and the claimant believes that this arbitration should be 
consolidated along with the pending EML Arbitration. Paris 
is roughly equal distant from both parties. " 
17. The above submission was made in response to Mr. Pallav C 
Shisodia's argument, learned senior counsel for the appellant, that the 
respondent had in fact stated in its petition under Section 34 of the 
Arbitration Act that "the seat of arbitration was in London". Also in 
the counter affidavit before this Court it was submitted that the seat of 
arbitration being London in no way precludes the respondent from D 
challenging the awards under Section 34 of the Act. 
Having noted the above submissions and statements made by the 
parties, we propose to decide the question on the construction of Clause 
14 and the law governing such challenges. 
CLAUSE 14: THE ARBITRATION CLAUSE 
18. Clause 14 of the Agreement deals with two matters: 
(i) the laws which will govern the agreement; and 
(ii) a provision of settling
disputes by arbitration. 
As regards the first, it provides that in case a question arises as to 
the agreement i.e. what the agreement means or what the parties intended, 
it shall be interpreted according to the laws of Singapore and these laws 
E 
F 
will govern the understanding and the acts of the parties. Further, in 
case the parties resort to a court, they shall approach the courts of 
Singapore which alone shall adjucicate upon the issue. The courts of G 
Singapore will thus adjudicate in relation to any non-arbitrable dispute 
that might arise under the agreement or possibly a dispute regarding the 
correctness or validity of an arbitration award. It is not necessary to 
consider whether a challenge to the award would lie in Singapore in this 
case because the award in fact was made in London and in any case no 
H
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A party has approached the court in Singapore. 
Secondly, this clause provides that any dispute arising out of this 
agreement or concerning the rights, duties or liabilities of the parties 
shall be settled by arbitration. The arbitration shall be pursuant to the 
ICC Rules of Arbitration. In other words, the parties shall invoke the 
B ICC Rules of Arbitration in case a dispute arises between them 
concerning their rights, duties or liabilities. The intention is to have the 
dispute settled by and in accordance with the ICC Rules of Arbitration. 
In this sense, the ICC Rules of Arbitration must be construed as being 
read into this clause. 
C 
THE ICC RULES 
19. The ICC Rules provide for the entire conduct of arbitration 
from its commencement to the passing of an award. They provide that 
the arbitration shall be conducted by the court i.e. the International Court 
of Arbitration, appointed by the council of the ICC. A party wishing to 
· D have recourse to arbitration under the rules is required to submit a Request 
for Arbitration to the Secretariat of the ICC along with the information 
prescribed and in particular comments as to the place of arbitration. The 
ICC Rules clearly stipulate that the seat of arbitration shall be fixed by 
the court, in the following words:-
E 
F 
"]. The place of the arbitration shall be fixed by th'! Court 
unless agreedupon by the parties. 
2. The Arbitral Tribunal may, after consultation with
the 
parties, conduct hearings and meetings at any location it 
considers appropriate unless otherwise agreed by the 
parties. 
3. The Arbitral Tribunal may deliberate at any location it 
considers appropriate. " 
In this case, the appellant had proposed the venue of arbitration 
to be Paris in France. Upon notice being issued, the respondent was 
G obliged to file an answer including a comment concerning the number of 
arbitrators and their choice a.s to the place of arbitration. 
H 
The respondent, in their answer stated that the venue suggested 
by the claimant i.e. Paris in France would unnecessarily increase the 
cost of arbitration and therefore suggested that Singapore would be the
IMAX CORPORATION v. M/S E-CITY ENTERTAINMENT (I) 
843 
PVT. LTD. [S. A. BOBDE, J.] 
most appropriate and convenient venue for the arbitration, vide "Answer A 
to Request for Arbitration pursuant to Article 5(1) of the ICC Rules 
of Arbitration" dated 30.08.2004 .. 
The International Court of Arbitration decided inter alia that 
London, Unitt'.d Kingdom will be the juridical seat of the arbitration in 
. view of Article 14(1) of the ICC Rules and, therefore, proceeded on the 
B 
basis of the Part-I of the English Arbitration Act, 1996. 
What is significant and needs to be pointed out is that the parties 
had agreed in pursuance of the agreement to have the dispute decided in 
accordance with the ICC Rules by submitting the dispute to the ICC. 
The court (of the ICC) considered the stand of the parties on the venue c 
for arbitration and fixed London as the seat of arbitration. 
INTENTION OF THE PARTIES TO EXCLUDE PART-I 
20. In this case, there is an express choice of the law governing 
the contract as a whole i.e. Singaporean Law. 
There is an express agreement that any arbitration would be 
governed by the ICC Rules of Arbitration. The general principle is that, 
in the absence of any contradictory indication, it shall be presumed that 
the parties have intended that the proper law of contract as well as the 
law governing the arbitration agreement is the same as the law of the 
D 
country in which the arbitration is agreed to be held. . 
E 
21. lt would be apposite to
refer to a case decided by the Supreme 
Court of Sweden from a passage in Redfern and Hunter1• Quoting the 
Supreme Court of Sweden it is stated that:-
" ... no particular provision concerning the applicable 
law for the arbitration agreement itself was indicated 
[by the parties]. In such circumstances the issue of the 
validity of the arbitration clause should be determined 
in accordance with the law of the state wh)ch the 
arbitration proceedings have taken place, that is to say, 
Swedish Law. " 
In the present case, the arbitration clause contemplates an award 
made in pursuance to the ICC rules without specifying the applicable 
law for the arbitration agreement. It would therefore be appropriate to 
1 Redfern and Hunter on International Arbitration, Fifth Edition 
-~ 
F 
G 
H
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A hold that the question of validity of the award should be determined in 
accordance with the law of the state in which the arbitration proceedings 
have .taken place i.e. the English Law. Though for the purposes of this 
decision we would only hold that the conduct of the parties exclude the 
applicability of Part-I. 
·· 
B 
In other words, where the parties have not expressly chosen the 
law governing the contract as a whole or the arbitration agreement in 
particular, the law of the country where the arbitration is agreed to be 
held has primacy. 
22. Here, an express choice has been made by the parties 
c regarding the conduct of arbitration, i.e., that a dispute shall be finally 
settled by arbitration according to the ICC Rules of Arbitration. The 
parties have not chosen the place of arbitration. They have simply chosen 
the rules that will govern the arbitration, presumably aware of the provision 
in the rules that the place of arbitration will be decided by the ICC vi de 
Article 14(1) of the ICC Rules. The ICC having chosen London, 
D leaves no doubt that the place of arbitration will attract the law of UK in 
all matters concerning arbitration. 
23. The arbitration clause appears consistent with Section 2(7) of 
the Arbitration Act, 1996 which recognizes the freedom to authorize any 
person including an institution to determine an issue such as the choice 
E of the place of arbitration. 
24. Dr. Singhvi rightly
submitted that the decisions of the court in 
Sakuma Exports Ltd. vs. Louis Dreyfus Commodities Suisse Sa2, 
Harmony Innovation Shipping Ltd. vs. Gupta Coal India Ltd. 3, and 
Reliance Industries Ltd. vs. Union of lndia4 do not help the appellant 
F in view of the main difference between the abovementioned cases and 
the present one i.e. in all these cases, the parties had specifically agreed 
that the seat of arbitration will be London. The arbitration clause in 
these cases itself specified the seat to be at London. In Reliance 
Industries Ltd. (supra), the agreement that the seat of arbitration would 
G be London was incorporated in the final partial award. 
However~ as we shall see the agreement to have the arbitration 
conducted by the ICC and the choice of London as the seat ofarbitration 
2 (2015) 5 sec 656 
'(2015) 9 sec 112 
H 
• (2014) 7 sec 603
IMAX CORPORATION v. MIS E-CITY ENTERTAINMENT (I) 
845 
PVT. LTD. [S. A. BOBDE, J.] 
has made no material difference for the purpose of exclusion of Part-I. 
A 
The relevant clause in these cases was undoubtedly different in 
that the seat of arbitration outside India was specified in the clause itself. 
However, we have found that the relevant clause in the present case 
had the effect of an agreement to have the seat of the arbitration outside 
India, as chosen by the ICC and agreed to by the parties. 
B 
25. We find that in the pre~ent case, the seat of arbitration has not 
been specified at all in the arbitration clause. There is however an 
agreement to have the arbitration conducted according to the ICC rules 
and thus a willingness that the seat of arbitration may be outside India. 
In any case, the parties having agreed to have the seat decided by the c 
ICC and the ICC having chosen London after consulting the parties and 
the parties having abided by the decision, it must be held that upon the 
decision of the ICC to hold the arbitration in London, the parties aereed 
that the seat shall be in London for all practical purposes. Therefore, 
there is an agreement that the arbitration shall be held in London and 
thus Part-I of the Act should be excluded. 
D 
26. The construction that-the parties agreed to exclude the 
applicability of Part-I of the Act and generally to haw the entire agreement 
governed not according to Indian law is also apparent from the express
provision that: 
"This agreement shall be governed by and construed 
according to laws of Singapore and parties attorn to 
jurisdiction of the Courts of Singapore". 
In para 25 of National Thermal Power Corporation vs. Singer 
Company5, this Court held: 
"On the other hand, where the proper law of the contract 
is expressly chosen by the parties, as in the present case, 
such law must, in the absence of an unmistakable 
intention to the contrary, govern the arbitration 
agreement which, though collateral or ancillary to the 
main contract, is nevertheless a part of such contract". 
This principle is again reiterated in Sakuma Exports Ltd. (supra). 
This stipulation expressly excludes Part-I of the Act because it 
• (1992) 3 sec 551 
E 
F 
G 
H
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SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A governs both the principal agreement as well as the accompanying 
arbitration agreement. 
B 
c 
D 
NON- APPLICABILITY OF PART-I 
27. It is settled law in India that the provisions of Part-I of the 
Arbitration Act would apply to all arbitrations and all proceedings relating 
thereto. In Bhatia International vs. Bulk Trading S.A. and A111:6, this 
Court observed:-
"32 . ....... Where such arbitration is held in India the 
provisions of Part I would compulsorily apply and 
parties are free to deviate only to the extent permitted 
by the derogable provisions of Part I. In cases of 
international commercial arbitrations held out of India 
provisions of Part I would apply unless the parties by 
agreement, express or implied, exclude all or any of its 
provisions. In that case the laws or niles chosen by the 
parties would prevail. Any provision, in Part I, which is 
contrary to or excluded by that law or rules will not 
apply." 
This view has been followed in several cases, See Venture Global 
Engg. vs. Satyam Computer Services Ltd. 7, Videocon Industries 
E Limited vs. Union of India 8, Dozco India (P) Ltd. vs. Doosan 
lnfracore Co. Ltd. 9, Cauvery Coffee Traders vs. Horner Resources 
(International) Co. Ltd. w, Reliance Industries Ltd. (supra) and 
Sakuma Exports Ltd. (supra), Union of India vs. Reliance Industries 
Ltd. 11, Harmony Innovation Shipping Ltd. (supra) and Eitzen Bulk 
AIS vs. Ashapura Minechem Ltd. 12 
F 
G 
H 
The
relevant clause in these cases w~_s undoubtedly different in 
that, the seat of arbitration outside India was specified in the clause 
itself. However, we have found that the clause in this case had the 
effect of an agreement to have the seat of arbitration outside India, as 
chosen by the ICC, and as agreed to by the parties. 
• c2002i 4 sec 105 
1 c2008) 4 sec 190 
'(2011)6SCC 161 
'c2011) 6 sec 119 
" c2011i 10 sec 420 
11 c2015) 10 sec 213 
12 c2016) 11 sec so8
IMAX CORPORATION v. M/S E-CITY ENTERTAINMENT (I) 
847 
PVT. LTD. [S. A. BOBDE, J.] 
28. On a true construction of Clause 14 in this case, there is no 
A 
doubt the parties have agreed to exclude Part-I by agreeing that the 
arbitration would be conducted in accordance with the ICC Rules. The 
parties were undoubtedly conscious that the ICC could choose a venue 
for arbitration outside India. That in our view is sufficient to infer that 
the parties agreed to exclude Part-I. The ICC could well have chosen a 
B 
venue in India. The possibility that ICC could have chosen India is not a 
counter indication of this inference. It could also be said that the decision 
to exclude the applicability of Part-I was taken when the ICC chose 
London after consulting the parties. Either way Part-I was excluded. 
29. The view that it is the law of the country where arbitration is 
held that will govern the arbitration and matters related thereto such as 
C 
a challenge to the award is well entrenched. In Dozco India (P) Ltd. 
(supra), this Court observed:-
"In the absence of express agreement, there is a strong 
primafacie presumption that the parties intend the curial 
law to be the law of the 'seat' of the arbitration i.e. the 
place at which the arbitration is to be conducted. on 
the ground that that is the country most closely connected 
with the proceedings. So in order to determine the curial 
law in the absence of an express choice by the parties 
it is first necessary to determine
the seat of the 
arbitration, by construing the agreement to arbitrate." 
30. The relationship between the seat of arbitration and the law 
governing arbitration is an integral one. The seat of arbitration is defined 
as the juridical seat of arbitration designated by the parties, or by the 
arbitral institution or by the arbitrators themselves as the case may be. 
It is pertinent to refer to the following passage from Redfern and Hunter 
(supra):-
D 
E 
F 
"This introduction tries to make clear, the place or seat of the 
arbitration is not merely a matter of geography. It is the 
territorial link between the arbitration itself and the law of G 
the place in which that arbitration is legally situated: 
When one says that London, Paris or Geneva is the place 
of arbitration, one does not refer solely to a geographical 
H
848 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2017) 4 S.C.R. 
location. One means that the arbitration is conducted 
within the framework of the law of arbitration of England, 
France or Switzerland or, to use an English expression, 
under the curial law of the relevant country. 
The 
geographical place of arbitration is the factual connecting 
factor between that arbitration law and the arbitration 
proper, considered as a nexus of contractual and 
procedural rights and obligations between the parties and 
the arbitrators. 
The seat of arbitration is thus intended to be its centre of 
gravity." 
Further, in the same work on International Arbitration by Redfern 
and Hunter (supra), the following passage emphasizes the connection 
between the lex arbitri and lex fori:-
"Parties may well choose a particular place of arbitration 
precisely because its lex arbitri is one which they find 
attractive. Nevertheless, once a place of arbitration has been 
chosen, it brings with it its own law. If that law contains 
provisions that are mandatory so far as arbitration are 
concerned, those provisions must be obeyed. It is not o matter 
of choice any more than the notional motorist is free to choose 
which local traffic laws to obey and which to disregard. " 
Thus, it is clear that the place of arbitration determines the law 
that will apply to the arbitration and related matters like challenges to the 
award etc, see Eitzen Bulk A/S (supra). 
31. The significant determinant in each
case is the agreement of 
the parties as to the place of arbitration and where in fact the arbitration 
took place. 
If in pursuance of the arbitration agreement, the arbitration took 
place outside India, there is a clear exclusion of Part-I of the Arbitration 
G Act. In the present case, the parties expressly agreed that the arbitration 
will be conducted according to the ICC Rules of Arbitration and left the 
place of arbitration to be chosen by the ICC. The ICC in fact, chose 
London as the seat of arbitration after consulting the parties. The 
arbitration was held in London without demur from any of the parties. 
All the awards i.e. the two partial final awards, and the third final award, 
H
IMAX CORPORATION v. MIS E-CITY ENTERTAINMENT (I) 
849 
PVT. LTD. [S. A. BOBDE, J.] 
were made in London and communicated to the parties. We find that A 
this is a clear case of the exclusion of Part-I vide Eitzen Bulk AIS 
(supra}, and the decisions referred to and followed therein. 
32. The respondent contends before us that Part-I of the award 
was applicable, however they themselves stated the place of arbitration 
to be London. 
B 
It is pertinent to reproduce the relevant portion in the respondent's 
application before the ICC while objecting to the authority of the law 
firms representing the appellant. It stated:-
"The seat of this arbitration is London. " 
Therefore, the two reasons for Part-I not being applicable are as 
follows:-
(i) Parties agreed that the seat maybe outside India as may be 
fixed by the ICC; and 
c 
(ii) It was admitted that the seat of arbitration was London and D 
the award was made there. 
Therefore, there is no doubt that Part-I has no application because 
the parties chose and agreed to the arbitration being conducted outside 
India and the arbitration was in fact held outside India. 
33. In view of the foregoing observations, we find that the High 
E 
Court committed an error in observing that the seat of arbitration itself is 
not a decisive factor to exclude Part-I of the Arbitration Act. We therefore 
set aside the judgment of the High Court and dismiss the petition filed by 
the respondent under Section 34 of the Arbitration Act before
the Bombay 
High Court. 
F 
34. In the result the appeal is allowed with no order to costs. 
Devika Gujral 
Appeal allowed.