Hindustan Zinc Limited v. Glencore International A.G. (GIAG) and London Court of International Arbitration

At a glance

Parties

Hindustan Zinc Limited (appellant; claimant in the arbitration) v. Glencore International A.G. (GIAG) (respondent) and London Court of International Arbitration (proforma respondent)

Case no.

D.B. Civil Special Appeal (Arbitration) Nos. 2/2019 and 3/2019

Court

High Court of Judicature for Rajasthan at Jodhpur (Division Bench)

Judges

Chief Justice Indrajit Mahanty; Justice Pushpendra Singh Bhati (author)

Underlying award(s)

LCIA arbitral awards dated 17 August 2017 against Hindustan Zinc Limited (seat: London)

Forum and rules

Appeals under Section 37 of the Arbitration and Conciliation Act, 1996, against a Single Judge's order in applications under Section 34 read with Section 48

Outcome

Appeals dismissed as not maintainable (23 March 2020). The arbitration was seated in London, so Part I of the 1996 Act, including Section 34, did not apply, and no appeal lay under Section 37.

The dispute

Hindustan Zinc Limited (HZL), an Indian company based in Udaipur, and Glencore International A.G. of Switzerland had a contract. The contract and the arbitration clause were governed by the law of England and Wales, with LCIA arbitration in London. HZL started the arbitration. In its request of 3 June 2014 it stated that the seat was London and that English law was both the procedural and the substantive law. The LCIA tribunal issued awards against HZL on 17 August 2017. HZL then applied to the Rajasthan High Court under Section 34 read with Section 48 of the Arbitration and Conciliation Act, 1996. On 2 May 2019 a Single Judge held the applications not maintainable. HZL appealed under Section 37. It argued that the Bhatia International rule applied because its agreements were made in 2011, before the BALCO cut-off of 6 September 2012. It also argued that the LCIA Rules' waiver of recourse left it without a remedy. Glencore objected that the appeals were not maintainable.

Key holdings

1. The appeals are not maintainable. Following BGS SGS Soma JV v. NHPC Ltd., an appeal under Section 37 lies only from the orders listed in that section and needs clear statutory authority. ¶ 41
2. In its request for arbitration of 3 June 2014, HZL itself stated that the seat was London. HZL thereby expressly excluded Part I of the 1996 Act. ¶ 41
3. A Section 34 challenge to the awards was never available to HZL. Without that underlying remedy, no appeal lies under Section 37. Harmanprit Singh Sidhu and Kandla Export Corporation confirm that jurisdiction lies at the seat, particularly where a foreign award is challenged. ¶ 42
4. The Court found that R.K. Industries, Eitzen Bulk and Union of India v. Reliance Industries affirm the exclusion of Part I where the seat is outside India. ¶ 43
5. HZL could not rely on Bhatia International. As clarified in Union of India v. Reliance Industries, the Bhatia ratio does not apply where the seat is held to be London. The Court followed Vijay Karia, declined to interfere with the Single Judge's order, and dismissed the appeals and all pending applications. ¶¶ 44–46
6. The Court condoned the 4-day delay in filing Appeal No. 3/2019 under Section 5 of the Limitation Act. ¶¶ 1–2

Procedural history

1. 3 June 2014HZL files a request for arbitration with the LCIA Registrar, stating that the seat is London.
2. 17 August 2017The LCIA tribunal issues awards against HZL.
3. 2 May 2019A Single Judge of the Rajasthan High Court holds HZL's applications under Section 34 read with Section 48 (S.B. Arbitration Applications Nos. 28/2017 and 06/2018) not maintainable.
4. 4 March 2020The Division Bench reserves judgment on HZL's appeals.
5. 23 March 2020The Division Bench dismisses the appeals as not maintainable.

Tribunal, counsel and experts

Decided by

• Indrajit Mahanty Judge, High Court of Judicature for Rajasthan at Jodhpur (Chief Justice)
• Pushpendra Singh Bhati Judge, High Court of Judicature for Rajasthan at Jodhpur (authored the judgment)

For the claimant

Sachin Acharya · Manvendra Krishan

For the respondent

Sumeet Lall · RDSS Kharlia · Sidhant Kapoor

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Keywords

• Glencore
• Hindustan Zinc
• LCIA
• seat of arbitration
• London seat
• exclusion of Part I
• Section 34 Arbitration and Conciliation Act
• Section 37 appeal
• maintainability
• BGS SGS Soma
• Bhatia International
• BALCO
• foreign award
• New York Convention
• Commercial Courts Act
• Kandla Export
• India

Summary generated with AI from the published documents — refer to the award for the authoritative text.