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The complainant is an incorporated association, Tableland Economic Development Corporation Inc. (previously known as Mareeba Regional Development Organization Inc.) of PO Box 186 Mareeba, Queensland, 4880 Australia. The respondents, as named in the amended complaint, are Tablelands Online (a business name registered on March 9, 1999, by the complainant), Mr. Sean Mullen and Fast Internet (a business conducted by Mr. Mullen), both of 1/184 Grafton Street, Cairns, Queensland, 4870 Australia.
The disputed domain names are "tablelandsonline.net" and "tedc.net". The registrar of both names is Network Solutions Inc., of Herndon, Virginia, USA.
The complaint was received by the Center by email on July 6, 2000. This was deficient in certain respects. On July 11, 2000, registration details were sought from the registrar. On July 14, 2000, registration details were confirmed by the registrar. On September 12, 2000, an amended complaint was received by the Center by email and on October 13, 2000, in hard copy. The Center drew the attention of the complainant to the need for the complaint to name as respondents the registrants of the disputed domain names even though the disputed domain names were registered in the names of businesses having no separate legal personality from the owners of the registrations. On October 24, 2000, a further amended complaint was received by the Center by email and fax. That day the Center satisfied itself that the complainant had complied with all formal requirements, including payment of the prescribed fee, and formally notified the respondent by post/courier, fax and email of the complaint and of the commencement of this administrative proceeding and sent copies to the complainant, the registrar and ICANN.
The last day specified in the notice for a response was November 12, 2000. On November 12, 2000, the response was received by the Center by email. Receipt of the response was acknowledged by the Center on November 13, 2000.
On November 20, 2000, the Center invited Alan L. Limbury to serve as panelist. That day, Mr. Limbury accepted the appointment and submitted a Statement of Acceptance and Declaration of Impartiality and Independence. On November 20, 2000, the Center transmitted the case file to the Panel and notified the parties of the projected decision date of December 3, 2000.
On November 22 2000, the Center, at the Panel’s request, issued Interim Order No. 1, inviting the complainant, within three business days, to provide evidence to the Panel that it has rights in trademarks corresponding to the disputed domain names (as distinct from business name registrations). The respondent was also given three business days within which to respond to any such evidence. It was indicated that any requests for further time should be addressed to the Center.
The complainant submitted a response to the invitation on November 24, 2000, and the respondent replied on November 30, 2000. The Panel has taken both submissions into account.
The Panel is satisfied that the complaint, as amended, was filed in accordance with the requirements of the Rules and Supplemental Rules; payment was properly made; the Panel agrees with the Center’s assessment concerning the complaint’s compliance with the formal requirements; the complaint was properly notified in accordance with paragraph 2(a) of the Rules; the response was filed within time and the administrative panel was properly constituted.
The Atherton tablelands region of the Australian State of Queensland is locally known as the tablelands. Mr. Mullen operates an Internet service business known as Fast Internet. From January 1997 to July 2000, Fast Internet operated a dial-in Internet access service, performed virtual hosting services, consulting, and operated a retail computer sales business on the Atherton tablelands. The complainant, as its name indicates, is an organization concerned to promote the economic development of the tablelands region and to provide opportunities to exchange information about it.
Pursuant to contractual arrangements between the complainant and Mr. Mullen, the complainant housed a computer in the office of Fast Internet, near the complainant’s offices in Mareeba. On February 17, 1999, Mr. Mullen registered the domain name "tedc.net" in the name of Fast Internet and on May 30, 1999, he registered the domain name "tablelandsonline.net" in the complainant’s then recently registered business name Tablelands Online. In each case Mr. Mullen is recorded by the registrar as the Administrative, Technical, Zone and Billing contact.
The complainant carried on business under the two disputed domain names, using the ISP services offered by Mr. Mullen, until (a dispute having arisen between them) in June 2000, Mr. Mullen ceased to operate the Mareeba office of Fast Internet.
On June 30, 2000, Mr. Mullen offered to sell to the complainant a package of five domain names, including the presently disputed domain names, for A$25,000, the money to be deposited into the bank account of Fast Internet, failing which the domain names would be sold to a domain name broker.
The complainant engaged Mr. Mullen to register the disputed domain names on its behalf. The complainant paid Fast Internet for the two domain names.
Mr. Mullen is now operating the "www.tablelandsonline.net" web-site in bad faith and is publicly airing what amounts to a billing dispute on the complainant’s own web-site.
Mr. Mullen has no affiliation with Tablelands Online or Sean Mullen. This is the complainant’s business name under which its Internet presence has been operating for some 15 months.
The address for Tablelands Online is definitely not the same as the one for Sean Mullen. If this seems to be the case then it is only for the purposes of Network Solutions.
The respondent and the complainant have issues, which extend far beyond this dispute.
Perhaps discussions with the complainant led to the names being registered by the respondent. Similar to the way that one might suggest to a restaurateur "that corner would be a good place for a restaurant", the person who acts on this suggestion has no obligation to thank or remunerate those who spouted the suggestion.
The respondent believed that registering such domains such as "tedc.net" for future use would be a wise investment due to its appealing length. Likewise, the name Tablelands Online has an appealing appearance to the respondent. Furthermore, the respondent had not sighted any business certificates held by the complainant until the receipt of this action.
For a period of time the complainant was allowed to use the domain names by the respondent. This act was in good faith and in no way passed registration of the domain names from the respondent to the complainant.
Question: What is the difference between trademarks, business and company names?
A trademark identifies the goods and services of a proprietor.
Business or company name registration identifies the proprietors of a business or officers in a company.
Registration of the trademark protects the legal rights of the proprietors of the trademark in their use and control of the mark. It gives a monopoly property rights in that mark. Registration of a business or company name does not confer any property rights in that name.
Registration of a trademark is not compulsory while the registration of a business name or company name is compulsory.
The name of the complainant was registered on December 14, 1998. The complainant has not shown that it has rights to the abbreviation TEDC.
Another organization named TEDC exists in the form of a registered company, which operates in the same state of Australia as the complainant. This group would certainly have rights to the name TEDC, and the complainant would not.
In the cases of the names Tablelands Economic Development Corporation, TEDC, and Tablelands Online, the complainant holds no known trademarks. Without such a registration, there is no presumption of validity to the complainant’s claim of exclusive rights in the mark.
The complainants chosen proof of rights to the names, in the form of business certification, explicitly denies any rights to a name.
The respondent started and provided Internet access services to the tablelands region for a period of three years. Thus the respondent put the "Tablelands Online". The respondent therefore has a more valid claim to the name "tablelands online" than the complainant.
As to "tedc.net", any short or generic worded domain name has an inherent value. Domain name brokerages are legitimate businesses and investing in domain names is a legitimate business. The respondent reserved the domain "tedc.net" for future sale or site development. At present it is used primarily for the respondent’s personal email.
Both disputed domain names currently are used for the legitimate purpose of criticizing the complainant.
The respondent’s use of the domain names does not purport to be delivered by the complainant’s business. The current web sites located at both disputed addresses do not mislead the public into believing that they are operated by the complainant.
The websites do not intentionally attempt to attract Internet users to the site based on confusion with the complainant.
The existence of the sites operated by the respondent does not prevent the complainant from having a domain name, which reflects the complainant’s business.
The respondent has operated a web site oblivious to this "dispute" at various times of differing content. The current content and any future additions accurately portray events and dealings between the complainant and the respondent’s business, Fast Internet. In the future, it is planned by the respondent to use the tablelands online domain names to provide a directory for the region.
It would be vigorously disputed that any Internet user would believe that the content of the websites located at the disputed domain names could in fact confuse the bodies. A person who could confuse said content would be incapable of accessing the Internet.
The disputed domain names were included in a package offered to the complainant for sale in response to a message that the complainant "wanted the domains" and "were willing to pay their bills, if that is what it will take". The complainant promised to pay its outstanding accounts on June 12, 2000, but failed to do so. Thus it was through trickery on behalf of the complainant that the offer was ever made.
This Interim Order invited the complainant to provide the Panel with evidence that it has rights in trademarks corresponding to the two domain names in dispute (as distinct from business name registrations).
"The complainant is in the process of registering as trademarks the two disputed domain names, however it takes up to 7 months to decide ownership of a trademark. Neither the complainant nor Tablelands Online had a logo to register as a trademark and believed the registration of business names afforded protection to the organizations. Those names are currently and have at all times been registered by the complainant.
We submit that a trademark alone cannot define ownership to a name, and rights to a domain name cannot be decided by reference to ownership of the trademark alone.
Also note that Tablelands Online and the complainant are both managed voluntarily by members of the community as non-profit community benefit organizations.
Being the parent organization the complainant has established its common seal, which is provided as an attachment."
Respondents reply to the complainant’s response to Interim Order No. 1.
"The complainant has failed to demonstrate rights in trademarks corresponding to the two domain names in dispute. The complainant offers ignorance as a defense. Ignorance is a very poor defense at best. The complainant demonstrates a poor understanding of trademark matters by insinuating that a logo is required to register a trademark. In fact, registering a trademark is a simple matter, which can even be done online. It is common knowledge that business names offer no rights to a name.
The complainant argues that a trademark cannot be used alone to define ownership of a name. Whilst the rules set out under the UDRP are somewhat vague in this area, I would like to draw attention to Network Solutions Policy which predates the UDRP and sets a sensible standard for the "quality" of rights in a name.
Section 5 of NSI's Domain Name Dispute Policy (Revision 02) recognizes that the use of a domain name can infringe "the legal rights of a third party," but the policy will only be triggered by the complainant furnishing a certified copy of a valid foreign trademark or a United States registered trademark that is identical to the domain name. This is an interesting provision as not only does it ignore the confusingly similar provisions in most common law trademark regimes, it also refuses to activate its policy if a right other than a registered trademark is alleged to have been infringed. This would presumably include allegations of the infringement of dilution rights, common law marks (in the US and Australia) and the Trade Practices Act in Australia.
Why does the complainant raises the suggestion that "... Tablelands Online and the TEDC are both managed voluntarily by members of the community as non profit community benefit organizations..."? I fail to see how this statement demonstrates rights to a name, and believe that seeking relief through pity is an even poorer defense than ignorance."
The Panel notes that the complainant appears to treat "Tablelands Online" as if it were a separate person from the complainant whereas, on the evidence before the Panel, it is merely a business name under which the complainant is entitled to trade. It appears therefore that the disputed domain name "tablelandsonline.net", which the complainant seeks to have transferred to it, already belongs to the complainant. At present Mr. Mullen is the only contact in respect of that name notified to the registrar.
The complainant submits that a trademark alone cannot define ownership to a name. Beyond the scope of the Policy, this is true: contractual, fiduciary or confidential relationships between parties may define or determine rights to a name as between those parties. However, the Policy and the Rules provide a strictly limited procedure designed solely to resolve certain specific disputes between the owners of trademark rights and the registrants of domain names, subject to any independent resolution by court decision – Policy paragraphs 4(a) and 4(k). Disputes raising issues falling outside the Policy (such as breach of contract, trust or confidence) may be resolved in any available court, arbitration or other proceeding – Policy paragraph 5.
The complainant also submits that rights to a domain name cannot be decided by reference to ownership of the trademark alone. Beyond the scope of the Policy, this is also true, since the applicable national law of contract, trust or confidence may determine rights to a domain name. In Australia the (Federal) Trade Practices Act and the (State and Territory) Fair Trading Acts may also be invoked to determine rights to domain names in appropriate circumstances.
Under the Policy, however, a domain name may be transferred or cancelled upon proof of the elements set out in paragraph 4(a), including ownership of trademark rights. Hence proof by a complainant that it has rights in a trademark is an essential prerequisite to relief under the Policy.
"Had ICANN intended the Policy to be restricted to cases involving only registered trademarks or service marks, it could easily have used narrower language than "a trademark or service mark in which the complainant has rights". The Panel finds the Policy applies to marks in which there are common law rights as well as to marks in which there are rights arising from registration"- Passion Group Inc. v. Usearch Inc. (Case AF 250); see also Askonas Holt Ltd. v. Webocracy Inc. (Case D2000-0392); Jeanette Winterson v. Mark Hogarth (Case D2000-0235); Steven Rattner v. Buy This Domain Name (John Pepin) (Case D2000-0402); IFP Online Ltd.v. Applying Thought.com (Case AF-0198); Chemstations, Inc. v. Batchcad, Ltd. Case AF-0226; Cox & King India Limited v. Rakesh Sud (Case D2000-0411) and Daniel J. Quirk, Inc. v. Michael J. Maccini (Case FA 0006000094964).
The complainant concedes it has not yet secured a registered trademark and has offered no evidence of its use of either of the names TABLELANDS ONLINE or TEDC such as might establish that it has common law trademark rights in either of them. The respondent is correct in its contention that the registration of a business or corporate name does not confer any rights in a trademark.
For this reason the complaint must fail. It is unnecessary for the Panel to express a conclusion on any of the other elements required to be proved under paragraph 4(a) of the Policy.

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A key question in many wage and hour claims is whether the complainant is an “employee,” and therefore protected by said laws, or an “independent contractor,” who is not covered. The New Jersey Supreme Court, in response to a certified question from the Third Circuit Court of Appeals, applied a very broad definition of “employee” for the purposes of state wage and hour laws. Hargrove, et al v. Sleepy’s, LLC (“Hargrove III“), Nos. A-70 Sept. Term 2012, 072742, slip op. (N.J., Jan. 14, 2015). It applied the definition used in state unemployment law, which is much more favorable to employees than state wage and hour laws have been.
The plaintiffs work as delivery drivers for the defendant, a mattress company. They contend that they are employees, while the defendant argues that they are independent contractors. They signed an “Independent Driver Agreement” (IDA) when they began working for the defendant, which they claim was “a ruse to avoid payment of employee benefits.” Id. at 3. They filed suit in federal court in 2010, alleging that the defendant was wrongfully denying them employment benefits under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
The U.S. district court granted summary judgment for the defendant, finding that the plaintiffs did not meet the definition of an “employee” under ERISA. Hargrove, et al v. Sleepy’s, LLC (“Hargrove I“), No. 3:10-cv-01138, mem. and order (D.N.J., Mar. 29, 2012), citing Nationwide Mutual v. Darden, 503 U.S. 318 (1992). While the court acknowledged that the defendant had “extensive control of deliverer’s activities,” Hargrove I at 10, it noted other factors that led to its conclusion, including the IDAs and the facts that each plaintiff had set up their own business entities, kept their own business records, had relationships with the IRS as business entities, and purchased and maintained their own delivery trucks.
The plaintiffs appealed this order to the Third Circuit Court of Appeals. The appellate court certified a question to the New Jersey Supreme Court: What test should a court use to determine “employment status” under the New Jersey Wage Payment Law, N.J.S.A. § 34:11-4.1, et seq., and the New Jersey Wage and Hour Law, N.J.S.A. § 34:11-56a, et seq. Hargrove, et al v. Sleepy’s, LLC (“Hargrove II“), 70 A.3d 592 (N.J. 2013).
Hargrove III at 17, quoting N.J.S.A. § 43:21-19(i)(6).
The employment attorneys at the Resnick Law Group represent the rights of workers and job seekers in New Jersey and New York. To schedule a confidential consultation with a knowledgeable and skilled employee advocate, please contact us today online, at 973-781-1204, or at (646) 867-7997.


TRAVELERS CASUALTY & SURETY CO. OF AMERICA v. PACIFIC GAS & ELECTRIC CO. certiorari to the united states court of appeals for the ninth circuit. No.
Apr 25, 2017 ... BRIAN LEWIS, ET AL., PETITIONERS v. WILLIAM CLARKE ... 2467, 25 U. S. C. § 2701 et seq. ..... Travelers Casualty & Surety Co. of America v.
Aug 15, 2016 ... The United States of America, for the use and benefit of Tusco, Inc., and ... LLC (" Clark") and Travelers Casualty and Surety Company of America ...... to the extent permitted by the terms of the Miller Act." United States, et al. v.
RAD, Travelers, and Lumbermens are all real parties in interest in this partially subrogated action, ... Clark Equipment Co. ... 842; formerly codified as 28 U.S.C. § 931 et seq. ... United States, 1st Cir., 172 F.2d 737; Aetna Casualty Surety Co. v .
Oct 18, 2018 ... WALTER KROP et al., Appellees (Andy Varga, Appellant). ... copy of their old policy with Travelers insurance company and requested a new .... State Farm Fire & Casualty Co. v. .... Clark Associates, 521 A.2d 697, 700 (Me.


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This cause was formerly before the Court, and the decision then pronounced will be found reported, ante, vol. 7. p. 490. The claim of Mr. Burke, as a bonce fidcei purchaser, was then rejected, upon the ground of the illegality of the original capture, it having been made in violation of the neutrality of the United States; and a general decree of restitution was awarded in favour of the libellant, suing in his official character as the Consul of Spain, for the benefit of the original owners. A mandate issued from this Court to the Court below, to carry that decree into effect. Pending the original proceedings in the Court below, and before the appeal, the property, upon the application of Mr. Burke, was delivered to him, upon a stipulation given with sureties in the usual manner, for the payment of the appraised value, according to the future decree of the Court. The appraisers estimated the property at 7,473 dollars and 43 cents, being, as they declare, 'the long price, including custom-house duties,' and for this sum, the stipulation was given. Upon the application to the Court below, to enforce the mandate of this Court, Mr. Burke filed a petition, asserting that he had incurred cost and expenses, and paid certain liens upon the property. The specifications now insisted on, were the following: (1) Insurance on the property from Galveztown to Baltimore, viz. 751 dollars and 25 cents. (2.) Duties paid on the same at Baltimore, viz. 1945 dollars and 14 cents. A petition was also filed on behalf of Mr. Burke and a Mr. Forbes, (who now, for the first time, appeared in the cause,) as joint owners of the schooner Harriet, in which the property in question was brought from Galveztown to Baltimore, praying for the allowance of freight for the voyage, amounting to 1,500 dollars. The libellant also made an application for interest upon the amount of the stipulation to be decreed in his favour, either from the time of capture, from the date of the stipulation, or from the decree of this Court.
The respective claims of all the parties for these allowances were rejected by the Circuit Court, and from the decree dismissing them an appeal was taken to this Court. Feb. 10th.
The Attorney General, for the appellant, Burke, stated, that the allegation demanding restitution in the original case, was filed by the Spanish Consul against the goods, and the appellant claimed the cargo as having been remitted to him in return for an outward cargo shipped to his agent at Matagorda. It is now alleged, that he was part owner of the capturing vessel, and, therefore, as a wrong doer, not entitled to the equitable deductions he claims. He insists, that he is a bonae fidei purchaser, without notice of the illegal capture, and, therefore, entitled to be allowed for duties and other charges. In the admiralty, the libellant and claimant are both actors. [a] If, therefore, it had been the wish of the libellant to put in issue the fact of Burke's knowledge of, or connexion with, the illegal capture, he should have answered the averment which is contained in the claim, that he (Burke) was entirely ignorant of, and unconnected with, that transaction; or he should have filed an amended libel, and charged the guilt of Burke. The libellant did neither; and thus the fact of B.'s guilt or innocence was not in issue in that case. It was not involved in the decision of the Court, which turned on the facts of the illegal armament of the Patriota in the ports of the United States, the capture of the Santa Maria by that vessel, and the identity of the goods as part of the cargo of the Santa Maria. These facts being established, it was immaterial who the owners of the capturing vessel were, or how the goods came into the possession of Burke. Restitution was decreed to the original owners, and it was in the execution of this decree under the mandate from this Court, that the proceedings now in question took place. Upon the present appeal, nothing is before the Court but what is subsequent to the mandate. [b] The respondents cannot, therefore, enter into the question of the guilt or innocence of Burke upon the evidence in the original cause. He is now to be considered as an innocent purchaser, and entitled as such to all equitable deductions, meliorations, and charges.
To the claims for duties, insurance, and freight, it was objected in the Circuit Court, that the Court had no authority to consider them, because the original decree of this Court had closed the door against all inquiry into the subject, upon the principle settled in Rose v. Himely. But this was a misapplication of the principle determined in that case. The question on the first appeal was merely as to the proprietary interest of the cargo. But after the principal question in the cause has been finally decided, and the cause quoad hoc perpetually disposed of, any question of charge upon the original fund may still be taken up as a new question, so long as the fund remains within the power of the Court. Such is understood to be the practice, both in England and in this country. [d] Considering Burke as an innocent purchaser of the goods, who had brought them to the United States, where they were claimed by the original owners, and restored to them, because of the defect of title in those from whom Burke had purchased, this case cannot be distinguished in principle from that of Rose v. Himely, in which freight, insurance, duties, and other expenses, were allowed, under the same circumstances. [e] The charges and expenses in the present case, having been actually borne by the innocent purchaser, in bringing the goods safely into the country, seem to enter into the value of the articles themselves; and in withdrawing them from the possession of the purchaser, a reimbursement of his actual expenses is required by natural equity, and may be considered as a species of mitigated salvage. The claim for the amount of the duties rests upon higher grounds. Wherever goods are sold by order of Court, or consent of parties, the duties attach as upon an ordinary importation; and upon restitution of the proceeds, the amount of the duties is to be deducted. [f] The party gets more than the value of the goods, if he gets the amount of the duties; and the purchaser pays the duties twice over to the government as duties, and again to the original owner, as part of the long price value of his goods.
As to the claim by the other party for interest upon the appraised value, so far as it is claimed from the time of capture, the question is not before this Court, because it was not made in the Court below. Nor can it be allowed from the date of the stipulation, because the stipulation is a mere substitute for the specific goods, which would not have carried interest. The principle of Rose v. Himely applies to this demand, since it is in the nature of a claim for damages for the illegal detention and delay, which were prayed in the original libel, but which were not allowed by the Court below, nor by this Court, upon the first appeal. Interest might, doubtless, have been expressly reserved in the stipulation, if the Court below had deemed the party entitled to it. But these questions are definitively closed by the original decree, and cannot arise upon the mandate to carry that decree into effect.
Mr. D. Hoffman, contra, insisted, that the original proceedings in the cause showed that Burke was a participator in the illegal seizure of this property, and, consequently, could not claim any equitable deductions from the full value on account of charges incurred by him in its preservation. He was a malae fidei possessor, who was not entitled to be allowed for his expenses actually laid out upon the property, still less for the fictitious charges of freight, insurance, and duties. As to the duties, they have been incurred solely by his electing to import the goods for consumption. Had they been delivered to the original owners, and carried away by them, or had they never been brought in, they would not have been subject to duties. There was a manifest inconsistency in the opposite argument, which would not admit the stipulation to carry interest, whilst it sought to diminish the principal sum specified in the stipulation, by claims which might have been made upon the original hearing. But there is no principle, authority, or established practice, which requires, that where the goods have been delivered on bail, the Court should, cotemporaneously, decree restitution of the specific thing, and the performance of the stipulation. The Court may decree restitution generally, and in executing the decree it is to be applied to the stipulation, so as to include not only what is substantially comprehended in the decree, but every equitable demand consistent with it, although not expressly included in its terms. The allowance of interest by the Court below, after the original decree in this Court, does not so much depend upon the circumstance of its being expressly reserved upon the face of the stipulation, as upon the notorious fact, that the Court would be subsequently called on to act definitively upon the stipulation, when it came to execute the final decree of this Court. In thus executing it, by allowing interest, the Court below would not modify or add to the original decree of this Court, since this allowance opens nothing which had been adjudicated by this Court, and is to be regarded as nothing more than an incident to the execution of the decree of restitution. That restitution would have been incomplete without it, as, if the property had not been delivered to the capturing claimant upon bail, it might have been delivered in the same manner to the original owner, or sold by order of Court, and the proceeds invested in stocks bearing an interest.
As to the case of Rose v. Himely, it will be found that the Court there assumes, that the question of interest was before it on the original appeal, and asserts, that if the claim had then been made, it would have been rejected, because the Court did not consider the appellants as infected by the marine trespass committed by the captors. 'The circumstances of the case were such as to restrain the Court from inserting in its decree any thing which might increase its severity. The loss was heavy, and it fell unavoidably on one of two innocent parties. The Court was not inclined to add to its weight by giving interest in the nature of damages. The allowance of interest, therefore, in the Court below, is overruled.' [g] Besides, in that case, the Court had all the questions of equitable deductions and allowances before them on the original appeal, and gave a very special decree and mandate, which, ex industria, omitted interest. But here the question is not between two equally innocent parties. Here none of the questions of freight, insurance, duties, and interest, were raised in the original cause. They were all reserved as incidental to the stipulation, which was not then brought before this Court.
The claim for interest is an incident to the execution of the mandate for restitution. Interest is impliedly due, wherever a liquidated sum of money is wrongfully withheld. 'If a man has my money by way of loan, he ought to answer interest; but if he detains my money wrongfully, he ought, a fortiori, to answer interest; and it is still stronger, when one by wrong takes from me my money or goods, which I am trading with, in order to turn them into money.' [i] Were not this the case, a strong temptation would be presented to debtors to violate their duty. In the language of Lord Mansfield, 'they would be encouraged to make use of all the unjust dilatoriness of chicane, and the more the plaintiff is injured, the less he will be relieved.' This is emphatically applicable to the present case, where the capturing claimant has superadded to the original wrong done to the owners of these goods, all the unjust dilatoriness of chicane. Feb. 26th.
^a Jennings v. Carson, 4 Cranch's Rep. 23.
^b Rose v. Himely, 5 Cranch's Rep. 313.
^d The Fortuna, 4 Rob. 228. The Vrow Anna Catharina, 6 Rob. 269. The Nereide, 1 Wheat. Rep. 171. The St. Lawrence, 2 Gallis. 20.
^e 4 Cranch, 281. 5 Cranch, 316.
^f The Concord, 9 Cranch, 387.
^g 5 Cranch's Rep. 317.
^h 1 Wheat. Rep. 304. 354.
^i 1 P. Wms. 396. See also 1 Binn. Rep. 494. 9 Johns. Rep. 71. 11 Mass. Rep. 504. 1 N. Hamp. Rep. 180.

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Defamation remains a criminal offence in Greece.
Insult (Criminal Code Art. 361): Insult is defined as insulting the reputation of another person through word or deed or otherwise, except if the act may be punishable as defamation. The punishment imposed may be either a fine or imprisonment for up to one year, or both. According to Art. 361(2), after taking into consideration the circumstances and the personality of the person offended, if the offence is not particularly severe, the perpetrator shall be punished only with [administrative] detention or a fine.
Unprovoked insult by action (Criminal Code Art. 361a): This offence is defined in the same terms as insult, however in this case the act must be committed through action and not have been provoked. This offence is punishable by imprisonment of up to three months or a fine. If two or more persons committed the act jointly, the punishment imposed shall be at least six months in prison.
Defamation (Criminal Code Art. 362): Defamation is defined as claiming or disseminating before a third party facts about another person that may harm that person’s honour or reputation. It is punishable with up to two years in prison or a fine, or both.
Slander (Criminal Code Art. 363): Slander is defined as defamation in which the information was false and the perpetrator knew it to be false. This offence is punishable with imprisonment of at least three months or a fine. In addition, the offender may lose certain political rights described under Art. 63 of the Criminal Code.
Defamation or a corporation (Criminal Code Art. 364): This offence is defined as claiming or disseminating facts about a corporation (S.A.) relevant to its business, financial situation, general activities, or the persons who run and manage it in a way that might damage the public’s confidence in the company and generally to corporations. This offence is punishable with up to one year in prison or a fine. However, if the perpetrator knew that the facts claimed were false, the punishment shall be imprisonment only.
Art. 369(1) also provides that the plaintiff may request from the court publication of the court’s judgment at the defendant’s expense for crimes committed under Arts. 361-365. Furthermore, if the offence was committed by the press, the publication must contain at least the rationale of the court’s decision as well as the judgment. According to Art. 369(2), the newspaper or magazine publisher must publish the court’s entire decision with eight days from the verdict in the same position as the original offending article. Non-compliance is punishable with up to one year in prison or a fine.
Additionally, Art. 369 provides that the provision of the Criminal Code (Art. 229) that punishes false accusation – the filing of a suit or the lodging of a false accusation of a criminal action with the authorities with the intent to cause prosecution of a person, punishable with up to one year in prison – can also be applied in connection with Arts. 361-365. This offence is punishable with a minimum of one year in prison.
The Greek Criminal Code also contains provisions relevant to dignity of sexual and gender rights, with increased protection for family members, as well as for minors. Art. 337 states: “Anyone who brutally attacks the dignity of another in the field of their sexual life, either with lewd gestures or suggestions concerning indecent acts, is punishable by imprisonment of a maximum of one year or a fine.” Art. 337(2-5) provide for heavier punishments when this offence is committed against children under 12, minors, or job seekers and if committed through the Internet or in the workplace.
Additionally, Art. 9 of Law 3500/2006 on Inter-Domestic Offences of Sexual Dignity provides that a person who insults the dignity of a family member with particularly degrading speech or deed referring to their sexual life can be punished with up to two years in prison.
However, public officials have a procedural advantage in criminal defamation cases.
According to Art. 368(1) of the Greek Criminal Code, prosecution for the offences described in Arts. 361-365 can only be initiated upon complaint, but may be conducted ex officio when the offended party is a public official. In addition , if the victim is a police officer, port officer, fire brigade officer or health worker and the act occurred during while the victim was performing his or her duty and the offender acted masked or by altering his or her characteristics, criminal prosecution can also occur ex officio. Furthermore, according to Art. 368(3), if the victim is a civil servant and the act occurred during the execution of his or her official duty or in relation to his or her duties, a complaint can also be submitted with the superior authority of the minister.
In the case of libel of the deceased, the surviving spouse and children also have the right to submit a complaint, and if they are also deceased, this right can be exercised by the surviving parents and siblings. In the case of defamation of a corporation, the right to file charges falls to the managing board or any other person who has a substantial legal interest (Art. 368(2)).
Insulting or defaming the President of Greece is a criminal offence under Art. 168(2) of the Greek Criminal Code. The penalty is imprisonment for up to three months.
In addition, Art. 14(3b) of the Greek Constitution allows the seizure of publications (before or after the fact) that contain insults toward the President of Greece.
Expressing hatred or contempt for, removing, destroying, deforming or desecrating the official flag of the State or emblem of its sovereignty is a criminal offence under Art. 181 of the Greek Criminal Code. The penalty is imprisonment for up to two years.
In addition, publicly insulting the Greek Parliament is punishable with imprisonment of at least three months (Art. 157(3)). Publicly insulting departmental, municipal or other councils of local authority is punishable with up to two years in prison. Prosecution takes place with permission of the Parliament or council. If applicable, offender may also be punished with dismissal from public office (Art. 157(4)).
Insulting the honour of the head of state of a foreign country that is at peace with Greece is a criminal offence under Art. 153 of the Greek Criminal Code. The punishment is imprisonment for an unspecified term. The act is only prosecuted at the request of the foreign government.
Art. 154 states that if the act referred to in Art. 153 is committed against an ambassador or any other diplomatic agent of a foreign country, the perpetrator shall be punished with a prison sentence of up to two years, in case a more severe punishment is not prescribed by some other provision of the law. The prosecution can only be initiated upon complaint from the victim or the foreign government.
Offending the flag or emblem of sovereignty or interfering with a national anthem of a foreign state that is at peace with Greece and is recognised by it is a criminal offence under Art. 155. The punishment is a fine or imprisonment for up to six months. The prosecution may be initiated only at the request of the foreign government.
Insulting the memory of the dead with cruel or malicious defamation or libel is a criminal offence under Art. 365 of the Greek Criminal Code. It is punished with imprisonment for up to six months.
Malicious blasphemy is a criminal offence under Art. 198 of the Greek Criminal Code. Whoever shows disrespect to the divine by means of blasphemy faces imprisonment for up to three months and a fine of maximum €3,000.
In addition, the act of publicly reviling the Eastern Orthodox Church of Christ or any other religion tolerated in Greece (“religious vilification”) is a criminal offence under Art. 199 and punishable with up to two years in prison.
The Greek Constitution also allows for allows for the seizure of publications, either before or after circulation, that contain insults against the Christian or any known religion.
The following data were provided upon request to the International Press Institute by EL.STAT., the Hellenic Statistical Authority. The data noted here refer to the year 2010, the most recent year for which information on criminal convictions has been processed and available for sharing .
• For Art. 361 (insult), there were 580 convictions, resulting in 561 prison sentences , 17 criminal fines and two other types of sentences . In terms of the prison sentences, 10 were for one to five years, 16 for six to 12 months, 109 for three to six months, 189 for up to three months, and 237 for up to one month.
• For Art. 362 (defamation), there were 19 convictions, resulting in 19 prison sentences, of which two were for six to 12 months, 15 for three to six months, and two for up to two months.
• In 2006, Aggeliki Mika, who was then a municipal councillor in Nigrita, wrote a newspaper article containing allegations that the mayor of Nigrita had shown favouritism while hiring officials. In 2008, a court of first instance convicted Mika of criminal libel and ordered a suspended eight-month prison sentence in addition to €50 in damages. In 2009, the Court of Appeal of Thessaloniki upheld the judgment but reduced the prison sentence to seven months. Mika later appealed to the Court of Cassation, which dismissed her appeal. In 2013, the European Court of Human Rights (ECtHR) found that Mika’s right to free expression had been violated due to the severity of the punishment (Mika v. Greece, no. 10347/10).
• In March 2015, a court sentenced prominent investigative journalist Kostas Vaxevanis, editor of the investigative magazine HotDoc, to 26 months in prison, suspended for three years. The charges were in relation to an article that analysed a prominent businessman’s alleged involvement in the 2012 to 2013 Cypriot financial crisis. In September 2016, a three-judge panel of the Athens Court of Appeal on Monday unanimously threw out Vaxevanis’ conviction .
• In January 2017, an MP for the extreme right Golden Dawn party, Yiannis Lagos, pressed criminal defamation charges against a television journalist, Tatiana Stefanidou. Stefanidou had played a clip of an incident in which Lagos and several of his supporters raided a school in Perama to protest plans to allows refugee children to attend the school. Stefanidou called Lagos a “bully”. She also declined to take a call on her show from a Golden Dawn supporter, reportedly saying that “she would not allow her show to be used as a platform in support of such actions”. Police arrived at Stefanidou’s work and home and sought to arrest her. The case is currently under examination by prosecutors.
The court ordered Kourakis to pay €2,300 of Andrikakis’ legal expenses.
Information for Greece was originally collected by IPI as part of the “Out of Balance” report, published in January 2015 with support from the European Commission and incorporating research contributed by Center for Media, Data and Society at Central European University in Budapest and by the SHARE Foundation in Belgrade. This entry was later expanded and updated by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE).


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The Lemon Test is part of a very unstable and hotly debated area of constitutional law: whether government aid to religion in the form of grants to or partnership with religious schools violates the constitutional prohibition against establishing religion. In 1971, the Lemon Test was the final word on the subject, but as the political debate about the separation of church and state grew more contentious in the 1980s and 1990s, other tests, such as the Endorsement test and the Coercion test, have been proposed, and there remains no firm resolution of the issue.
Originating in the 1971 case Lemon v. Kurtzman, 403 U.S. 602 (1971), this test is meant to determine whether government subsidies to religious organizations violate the establishment clause of the First Amendment. The establishment clause states that ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’ As explained in the 1947 case Everson v. Bd. of Ed., 330 U.S. 1 (1947), this clause means at least four things: (1) that neither the state nor federal government can set up an official church, (2) that a person cannot be forced either to practice or not to practice religion, (3) that government cannot give aid to religion, and (4) that government cannot participate in the affairs of religion. In Everson, a New Jersey law allowed a subsidy to religious schools for student bus transportation. The Court held that the subsidies did not violate the Constitution because they were intended for a secular aspect of the schools’ mission— student transportation. Thus, the holding distinguished between secular and sacred activities by the schools; where the subsidies were only used for secular purposes that were ‘‘indisputably marked off from the (schools’) religious function,’’ they were constitutionally permissible.
Following Everson, it was permissible for the government to subsidize a religious organization, but only after determining that the aid served a secular, not religious end. Lemon v. Kurtzman revolves around this problem of whether government subsidies to religious organizations aid a secular or sacred purpose. Lemon involved Rhode Island and Pennsylvania subsidies to private religious school teachers for teaching secular subjects. In contrast to the result in Everson, the Court held that these subsidies were unconstitutional. Although the teachers testified that they did not inject religion into their secular classes, Justice Burger wrote that the only way to prove they did not would be for government to carefully audit and supervise the curricula. This level of government involvement in religious school curricula would amount to excessive entanglement between church and state.
The Lemon test requires any government subsidy to a religious organization to meet three tests: (1) it must have a good faith secular purpose, (2) it must not have the principle effect of aiding or inhibiting religion, and (3) it must not create an excessive entanglement between government and religion. The test does not invalidate a subsidy for having a religious purpose, as long as it has a bona fide secular purpose as well. Neither does it invalidate a subsidy that aids religion, so long as that is not its principal effect. In this sense, it concedes to the accommodationist view that the ‘‘wall of separation’’ is permeable.
The Court had several opportunities to apply the Lemon test again in the 1980s. Several of these decisions involved the government’s display of religious symbols. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court considered a creche in Pawtucket, Rhode Island’s, annual Christmas display. The Court found that the creche did not run afoul of the establishment clause because, taken in context of a holiday display that also included secular images of Christmas, it did not have the principal effect of advancing religion. This decision also introduced the Endorsement test, which has existed as a parallel to the Lemon Test ever since. However, in County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Court found that a creche erected all by itself in a prominent location on the steps of a downtown courthouse did violate the establishment clause. The Allegheny creche’s prominence and the fact that its religious message was undiluted by the presence of secular images of Christmas meant that it had the principal effect of advancing Christianity, in violation of the Lemon Test. Justices Rehnquist, Scalia, Kennedy, and White believed the majority’s application of the Lemon Test unjustifiably hostile to religion. In another case, Bowen v. Kendrick, 487 U.S. 589 (1988), the Court held that the ‘‘Chastity Act,’’ which provided government funds to religiously affiliated non-profits to teach abstinence and adoption as alternatives to abortion, was not unconstitutional because it met the three prongs of the Lemon Test.
Evangelical Christians interpret the result of Lemon and the associated school prayer and religious display cases as discrimination against religion. In response to this concern, President George W. Bush pushed with some success for a variety of legislation that would seem to fly in its face. This includes school vouchers that can be used to pay for private religious schools and ‘‘charitable choice,’’ an effort to end the ‘‘discrimination’’ against religious non-profits in receiving federal grants.


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State v. Gaines, 193 Ohio App. 3d 260, 2011-Ohio-1475 – Mother who believed the owner of R&L Carriers obtained her 7-year old daughter’s cell phone number through the local sheriff wrote a letter and participated in meetings which led to indictment for extortion. Trial court sustained motion to dismiss. (1) Motion to dismiss went to the merits of substance of the indictment, and should not have been sustained. (2) Evid. R. 804 concerning admissibility of settlement discussions doesn’t apply in criminal cases. (3) Claimed sleazy conduct by the prosecutor is a matter for Disciplinary Counsel, not the trial court. (4) Facts don’t support clam of outrageous police conduct.
State v. Cunningham, 178 Ohio App. 3d 558, 2008-Ohio-5164 -- Following conviction and completion of probation the defendant harassed the victim of gross sexual imposition. He wanted her to recant her prior testimony. Such recantantation would have been a "thing of value" within the meaning of the extortion statute. Value may be either tangible or intangible. The "matter" he threatened to expose was her sexual relationships, which within the meaning of the statute could expose her to the opprobrium of others.
State v. Salupo, 177 Ohio App. 3d 354, 2008-Ohio-3721 – Defendant, also convicted of telecommunications harassment, asked ex-girlfriend to meet him, though it was a condition of the suspended sentence from a prior conviction that he have no contact. Evidence did not support extortion conviction because he did not induce her to perform an illegal act. He was subject to the stay-away condition but she was not.
State v. Conese, 102 Ohio St. 3d 435, 2004-Ohio-3889 -- It is possible to be convicted of coercing a political contribution even though no contribution ultimately was made. Syllabus: "When a threat is made with the purpose to coerce another into taking or refraining from taking action concerning which the person has a legal freedom of choice, the person threatening 'coerces' within the meaning of R.C. 2921.43(C)." Also see Disciplinary Counsel v. Conese, 102 Ohio St. 3d 439, 2004-Ohio-3888.
State v. Suber, 154 Ohio App. 3d 681, 2003-Ohio-5210 -- Defense to passing bad check charges was based on an opportunistic distortion of federal banking law allowing depositors access to funds before checks cleared. Defendant also threatened he would file liens against the property of the investigating officer if he wasn't released. Extortion conviction affirmed.
Heights Community Congress v. Smythe, Cramer Co. (N.D. Ohio 1994), 862 F.Supp. 204, 207 -- A threat to sue does not constitute extortion within the meaning of R.C. 2905.11(A). Nor does a demand for a settlement without a full disclosure of the evidence supporting the claim.
Mann v. The State, (1890), 47 Ohio St. 556 -- A demand for compensation for the tortious act of another, coupled with the accusation of crime and threat to prosecute if compensation is not paid, does not violate the extortion statute.
State v. Workman (1984), 14 Ohio App. 3d 385, 390, 393 -- That the matters the defendant threatens to expose happen to be true is not a defense to the offense of extortion. Also see Elliott v. The State (1981), 36 Ohio St. 318.
Williams v. The State (1929), 32 Ohio App. 124 -- An accusation that a prosecuting witness committed a crime, made for purposes of extorting gain, may be oral. It need not be in writing.

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Messrs. Jackson H. Ralston, Frederick L. Siddons, and William E. Richardson for appellants.
Messrs. Aldis B. Browne, Alexander Britton, and Evans Browne for appellees.
This is an appeal from a judgment of the supreme court of the Philippine Islands, affirming the judgment of the court of first instance for the city of Manila, which dismissed this suit. The action was brought to set aside a judgment sale of land in Manila, known as the Old Theater, formerly the community property of Antonio Enriquez and his wife, Ciriaca Villanueva. The plaintiffs [220 U.S. 307, 308] and appellants are the administrator of the estate of Antonio, including the interest of Ciriaca Villanueva, and all of the heirs of the two, except Francisco Enriquez, one of the defendants. The other defendants now before the court are the purchaser at the sale and a subsequent purchaser from him.
Ciriaca Villanueva died intestate in 1882. Thereafter her husband administered the community property until his death in 1884. By a codicil to his will, as stated by the supreme court, he provided 'that the inventory, valuation, and partition of this estate be made extrajudicially, and by virtue of the power which the law grants him, he forbids any judicial interference in the settlement thereof, conferring upon his executors the necessary authority therefor, without any restriction whatever, and extending their term of office for such period as may be required for this purpose.' The defendant Francisco Enriquez was the executor, and in April, 1886, was appointed the general administrator of the estate, including the interest of Ciriaca Villanueva, with directions to proceed in accordance with the codicil, which he did until March, 1901, except for a short time in May, 1900. There were no testamentary or other proceedings in court, and could not be, by Spanish law, in view of the codicil, but it lay with Francisco Enriquez to carry out the trust. There were differences among the heirs, and they made an agreement in August, 1897, for an extrajudicial partition, subject to the provisions of the will, in which Jose Moreno Lacalle was to act as an arbitrator. The partition fell through, but Lacalle rendered services to the two estates, as both courts have found, and on October 23, 1897, it was agreed by Francisco Enriquez, the defendant, and Rafael Enriquez, on behalf of the plaintiffs, that the land in question should be sold, for the purpose, among others, of paying Lacalle. No sale was made, however, and in 1898 Lacalle sued Francisco Enriquez as executor and ad- [220 U.S. 307, 309] ministrator, as aforesaid. The defendant admitted the debt, stated that he had no money, and pointed out this land for execution. On September 10, 1899, the land was sold for more than the appraised value to the defendant Go-Tiongco, who bought in good faith, and without notice of any claim unless notice is implied by law.
There is no question that every consideration of justice is in favor of the defendants, from whom the plaintiffs are endeavoring to get back the land without restitution of the purchase price, and after the last purchaser has made costly improvements. The owners of the land agreed to the rendering of the services, but they attempt to avoid the payment on technical grounds. They say that the debt, having been incurred after the death of the husband and wife, did not bind their estates; that if the claim had been good against the estate of the husband, the suit should have been brought against his heirs; and finally, that the judgment against Francisco Enriquez could not bind the estate of Ciriaca, so that the sale must be void, at least in part. But in our opinion these objections ought not to prevail, on the facts as stated by both courts below, and the law as it was administered in the Philippines at the time of the acts.
It seems to have been understood by everybody that Francisco Enriquez was administering both estates in fact, and to have been intended by his appointment in April, 1886, that he should do so by authority of law. The decree under which the plaintiff Rafael Enriquez now is administrator of the estate of both parents, on the face gives him the same authority that Francisco had had before. The supreme court holds in this case that on the death of the wife, the husband, if surviving, is entitled to settle the affairs of the community, and that, on his death, his executor is the proper administrator of the same. See Alfonso v. Natividad, 6 Philippine, 240; Prado v. Lagera, 7 Philippine, 395; Johnston v. San Francisco Sav. [220 U.S. 307, 310] Union, 75 Cal. 134, 7 Am. St. Rep. 129, 16 Pac. 753; Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Lamm's Succession, 40 La. Ann. 312, 4 So. 53; Crary v. Field, 9 N. M. 222, 229, 50 Pac. 342, s. c. 10 N. M. 257, 61 Pac. 118. We should be slow to disturb their decision, even if we did not believe it to be right, as we do. But when without dispute Antonio was acting, there seems to be no necessity for inquiring whether the appointment could have been avoided if the attempt had been made. The contract with Lacalle, if made by Francisco Enriquez, as seems to have been assumed below, was made, as we have said, by the wish of all. The services were rendered in aid of winding up the community business, and were a proper charge upon the estate. See Civil Code of 1889, art. 1064. Sy Chung-Quiong v. Sy-Tiong Tay, 10 Philippine, 141. Francisco Enriquez was the only representative of the estate. The only practicable means of collecting the debt was by suit against him. The record of the suit that was brought most frequently refers to him as executor, but at times as executor and administrator; and the supreme court says that, as matter of law, the suit was directed against him in the latter as well as the former capacity. The judgment must be taken to have bound the community estate. Carter v. Conner, 60 Tex. 52; Landreaux v. Louque, 43 La. Ann. 234, 9 So. 32. Other matters would have to be discussed before we could reverse the judgment below, but we see no ground for doubting that it should be affirmed.


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Law Web: What is difference between place and seat of arbitration?
What is difference between place and seat of arbitration?
Determination or order--The expression 'determination' signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression 'order' must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills Ltd. v. Lakshmi Chand MANU/SC/0277/1962 : AIR 1963 SC 677, 680 (Constitution of India, Article 136).
A 'determination' is a 'final judgment' for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken 90 Wis 236 : 27 NW 2d 459, 463.
The said test clearly means that the expression of determination signifies an expressive opinion. In the instant case, there has been no adjudication and expression of an opinion. Thus, the word 'place' cannot be used as seat. To elaborate, a venue can become a seat if something else is added to it as a concomitant. But a place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions precedent is satisfied. It does not ipso facto assume the status of seat. Thus understood, Kuala Lumpur is not the seat or place of arbitration and the interchangeable use will not apply in stricto sensu.
Union of India (UOI) Vs. Hardy Exploration and Production (India) Inc.
Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.
1. The present appeal arose from the final judgment and order dated 27th July, 2016 passed by the High Court of Delhi at New Delhi in FAO No. 59 of 2016 whereby the Division Bench of the High Court had dismissed the appeal preferred by the Union of India, the Appellant herein, assailing the order dated 9th July, 2015 passed by the learned Single Judge in OMP No. 693 of 2013 and the order dated 20th January, 2016 passed in Review Petition No. 400 of 2015 in OMP No. 693 of 2013. The Division Bench took note of the fact that the Appellant had challenged the legal propriety and correctness of the award made by the Arbitrators in favour of the Respondents Under Section 34 of the Arbitration and Conciliation Act, 1996 (for brevity 'the Act'). The said application was contested by the Respondent raising many a ground, but the thrust of the objection related to the maintainability of the application Under Section 34 of the Act. It was contended before the High Court that the courts in India do not have the jurisdiction to entertain an application Under Section 34 of the Act to challenge the legality of the award in question. The learned Single Judge, vide order dated 9th July, 2015, accepted the preliminary objection and came to hold that in view of the terms of the agreement and the precedents holding the field, the Indian courts have no jurisdiction to entertain the application. Being of this view, the learned Single Judge did not advert to the other grounds urged in the petition.
2. Being grieved by the aforesaid order, the Union of India preferred an appeal Under Section 37(2) of the Act before the Division Bench which concurred with the opinion expressed by the learned Single Judge.
3. In appeal by special leave, the two-Judge Bench in Union of India v. Hardy Exploration and Production (India) INC MANU/SC/0488/2018 : (2018) 7 SCC 374 referred to certain decisions from foreign jurisdictions, namely, Naviera Amazonica Peruana S.A. v. Compania Internacional De Seguros Del Peru (1988) (1) Lloyd's Law Reports 116, Hiscox v. Outhwaite MANU/UKWA/0026/1991 : (1992) 1 AC 562, Union of India v. McDonnell Douglas Corporation (1993) 2 Lloyd's Law Reports 48, C v. D MANU/UKWA/0139/2007 : (2007) EWCA Civ 1282 (CA), C v. D (2008) 1 Lloyd's Law Reports 239, Braes of Doune Wind Farm (Scotland) Limited v. Alfred McAlpine Business Services Limited (2008) EWHC 426 (TCC), Shashoua and Ors. v. Sharma MANU/UKCM/0160/2009 : (2009) EWHC 957 (Comm.), Sulamerica Cia Nacional De Seguros S.A. and Ors. v. Enesa Engenharia SA and Ors. MANU/UKWA/0788/2012 : (2012) EWCA Civ 638, (1) Enercon GMBH (2) Wobben Properties GMBH v. Enercon (India) Ltd. (2012) EWHC 3711 (Comm.) and Govt. Of India v. Petrocon India Ltd. (2016) SCC Online MYFC 35 Apart from the above, the decisions rendered in Sumitomo Heavy Industries Ltd. v. ONGC Ltd. and Ors. MANU/SC/0834/1998 : (1998) 1 SCC 305, Bhatia International v. Bulk Trading S.A. and Anr. MANU/SC/0185/2002 : (2002) 4 SCC 105, Venture Global Engineering v. Satyam Computer Services Ltd. and Anr. MANU/SC/0333/2008 : (2008) 4 SCC 190, Videocon Industries Limited v. Union of India and Anr. MANU/SC/0598/2011 : (2011) 6 SCC 161, Dozco India Private Ltd. v. Doosan Infracore Co. Limited MANU/SC/0812/2010 : (2011) 6 SCC 179, Bharat Aluminium Co. v. Kaiser Aluminium Technical Services INC MANU/SC/0722/2012 : (2012) 9 SCC 552, Enercon (India) Ltd. and Ors. v. Enercon GMBH and Anr. MANU/SC/0102/2014 : (2014) 5 SCC 1, Reliance Industries Limited and Anr. v. Union of India MANU/SC/0518/2014 : (2014) 7 SCC 603, Harmony Innovation Shipping Ltd. v. Gupta Coal India Limited and Anr. MANU/SC/0231/2015 : (2015) 9 SCC 172, Union of India v. Reliance Industries Limited and Ors. MANU/SC/1064/2015 : (2015) 10 SCC 213, Eitzen Bulk A/s and Ors. v. Ashapura Minechem Limited and Anr. MANU/SC/0583/2016 : (2016) 11 SCC 508, Imax Corporation v. E-City Entertainment (India) Pvt. Ltd. MANU/SC/0263/2017 : (2017) 5 SCC 331 and Roger Shashoua and Ors. v. Mukesh Sharma and Ors. MANU/SC/0753/2017 : (2017) 14 SCC 722 were also referred to.
17. The argument of both the learned senior Counsel mainly centered around to one question which, in our opinion, does arise in the appeal, namely, when the arbitration agreement specify the "venue" for holding the arbitration sittings by the arbitrators but does not specify the "seat", then on what basis and by which principle, the parties have to decide the place of "seat" which has a material bearing for determining the applicability of laws of a particular country for deciding the post award arbitration proceedings.
20. One of the arguments of Dr. Singhvi, learned senior Counsel was that the decision rendered by Three Judge Bench in the case of Sumitomo Heavy Industries Ltd. v. ONGC Ltd. and Ors. (supra) on which great reliance was placed by Mr. Tushar Mehta, learned ASG has lost its efficacy, though approved by another recent decision of Three Judge Bench in Bharat Aluminum Company v. Kaiser Aluminum Technical Services INC (supra), for the reason that it was rendered under the Arbitration Act, 1940, which now stands repealed by Arbitration Act, 1996 and secondly, it was rendered in relation to Section 9 of the Foreign Awards (Recognition and Enforcement) Act, 1961, which also now stands repealed by 1996 Act.
21. It was his submission that while approving the ratio of Sumitomo Heavy Industries Ltd. (supra) these two factors which have some relevance on its efficacy do not seem to have been examined in the case of Bharat Aluminum Company (supra).
22. Dr. Singhvi also urged that what is the effect of UNCITRAL Model Law, when they are made part of the arbitration agreement for deciding the question of "seat" has also not been so far decided in any of the earlier decisions.
23. In our opinion, though, the question regarding the "seat" and "venue" for holding arbitration proceedings by the arbitrators arising under the Arbitration Agreement/International Commercial Arbitration Agreement is primarily required to be decided keeping in view the terms of the arbitration agreement itself, but having regard to the law laid down by this Court in several decisions by the Benches of variable strength as detailed above, and further taking into consideration the aforementioned submissions urged by the learned Counsel for the parties and also keeping in view the issues involved in the appeal, which frequently arise in International Commercial Arbitration matters, we are of the considered view that this is a fit case to exercise our power Under Order VI Rule 2 of the Supreme Court Rules, 2013 and refer this case (appeal) to be dealt with by the larger Bench of this Court for its hearing.
That is how the matter has been placed before us.
6. At the very beginning, we may note with profit that Mr. Tushar Mehta, learned Additional Solicitor General appearing for the Union of India and Dr. Abhishek Manu Singhvi, learned senior Counsel appearing for the Respondent very fairly stated that no reference was called for and there is no justification to answer the reference, but to deal with the case on its own merits. In spite of the said submission advanced at the Bar, we think it appropriate to put the controversy to rest as the two-Judge Bench thought it appropriate to refer the matter to a larger Bench.
An agreed reference to arbitration involves two groups of obligations. The first concerns the mutual obligations of the parties to submit future disputes, or an existing dispute to arbitration, and to abide by the award of a tribunal constituted in accordance with the agreement. It is now firmly established that the arbitration agreement which creates these obligations is a separate contract, distinct from the substantive agreement in which it is usually embedded, capable of surviving the termination of the substantive agreement and susceptible of premature termination by express or implied consent, or by repudiation or frustration, in much the same manner as in more ordinary forms of contract. Since this agreement has a distinct life of its own, it may in principle be governed by a proper law of its own, which need not be the same as the law governing the substantive contact.
The second group of obligations, consisting of what is generally referred to as the 'curial law' of the arbitration, concerns the manner in which the parties and the arbitrator are required to conduct the reference of a particular dispute. According to the English theory of arbitration, these Rules are to be ascertained by reference to the express or implied terms of the agreement to arbitrate. The being so, it will be found in the great majority of cases that the curial law, i.e. the law governing the conduct of the reference, is the same as the law governing the obligation to arbitrate. It is, however, open to the parties to submit, expressly or by implication, the conduct of the reference to different law from the one governing the underlying arbitration agreement. In such a case, the court looks first at the arbitration agreement to see whether the dispute is one which should be arbitrated, and which has validly been made the subject of the reference; it then looks to the curial law to see how that reference should be conducted; and then returns to the first law in order to give effect to the resulting award.
1. The proper law of the contract, i.e. the law governing the contract which creates the substantive rights of the parties, in respect of which the dispute has arisen.
2. The proper law of the arbitration agreement, i.e. the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an award.
3. The curial law, i.e. the law governing the conduct of the individual reference.
1. The proper law of the arbitration agreement governs the validity of the arbitration agreement, the question whether a dispute lies within the scope of the arbitration agreement; the validity of the notice of arbitration; the constitution of the tribunal; the question whether an award lies within the jurisdiction of the arbitrator; the formal validity of the award; the question whether the parties have been discharged from any obligation to arbitrate future disputes.
2. The curial law governs' the manner in which the reference is to be conducted; the procedural powers and duties of the arbitrator; questions of evidence; the determination of the proper law of the contract.
3. The proper law of the reference governs; the question whether the parties have been discharged from their obligation to continue with the reference of the individual dispute.
In the absence of express agreement, there is a strong prima facie 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.
We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted," and then returns to the first law in order to give effect to the resulting award.
47. Act to apply to all arbitrations.-Subject to the provisions of Section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder.
Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending.
By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the Appellant and the first Respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second Respondent. We must add in the interests of completeness that is not the case of the Appellant that the High Court at Bombay lacked the territorial jurisdiction to do so.
8. On a careful reading of the aforesaid decision, it is quite vivid that the controversy related to the 1940 Act and the discussion pertained to foreign award under the Foreign Awards (Recognition and Enforcement) Act, 1961 (for brevity, 'the 1961 Act'). Thus, the principle laid down therein is in no way applicable to the concept of determination of jurisdiction as has been dealt with in BALCO case and also the conception of implied exclusion as Bhatia International (supra) states. Quite apart from that, we shall also advert to the later authorities how they have understood the said decision.
To conclude we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory 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 Rules 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.
Thus Article 23 of the ICC Rules permits parties to apply to a competent judicial authority for interim and conservatory measures. Therefore, in such cases an application can be made Under Section of the said Act.
Lastly it must be stated that the said Act does not appear to be a well drafted legislation. Therefore the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta cannot be faulted for interpreting it in the manner indicated above. However, in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also to international commercial arbitrations which take place out of India, unless the parties by agreement, express or implied exclude it or any of its provisions. Such an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there is no lacunae in the said Act. This interpretation also does not leave a party remedyless. Thus such an interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by these High Courts is not good law.
It is no doubt true that it is fairly well settled that when an arbitration agreement is silent as to the law and procedure to be followed in implementing the arbitration agreement, the law governing the said agreement would ordinarily be the same as the law governing the contract itself. The decisions cited by Mr. Tripathi and the views of the jurists referred to in NTPC v. Singer Co. case support such a proposition. What, however, distinguishes the various decisions and views of the authorities in this case is the fact that in Bhatia International this Court laid down the proposition that notwithstanding the provisions of Section 2(2) of the Arbitration and Conciliation Act, 1996, indicating that Part I of the said Act would apply where the place of arbitration is in India, even in respect of international commercial agreements, which are to be governed by the laws of another country, the parties would be entitled to invoke the provisions of Part I of the aforesaid Act and consequently the application made Under Section 11 thereof would be maintainable.
12. In Reliance Industries Ltd. (I), (supra), the Appellant had challenged the decision of the High Court of Delhi whereby it had entertained the petition preferred Under Section 34 of the Act. The Court scanned the Clause relating to "Sole expert, conciliation and arbitration" and the Clause that pertained to "applicable law and arbitration" and further other clauses and came to hold that once the parties had consciously agreed that the juridical seat of the arbitration would be at London and that the agreement would be governed by the laws of London, the provisions of Part I of the Act would not be applicable.
In the present case also, the parties had agreed that notwithstanding Article 33.1, the arbitration agreement contained in Article 34 shall be governed by laws of England. This necessarily implies that the parties had agreed to exclude the provisions of Part I of the Act. As a corollary to the above conclusion, we hold that the Delhi High Court did not have the jurisdiction to entertain the petition filed by the Respondents Under Section 9 of the Act and the mere fact that the Appellant had earlier filed similar petitions was not sufficient to clothe that High Court with the jurisdiction to entertain the petition filed by the Respondents.
In our opinion, the provision contained in Section 2(2) of the Arbitration Act, 1996 is not in conflict with any of the provisions either in Part I or in Part II of the Arbitration Act, 1996. In a foreign seated international commercial arbitration, no application for interim relief would be maintainable Under Section 9 or any other provision, as applicability of Part I of the Arbitration Act, 1996 is limited to all arbitrations which take place in India. Similarly, no suit for interim injunction simplicitor would be maintainable in India, on the basis of an international commercial arbitration with a seat outside India.
We conclude that Part I of the Arbitration Act, 1996 is applicable only to all the arbitrations which take place within the territory of India.
2. The arbitral procedure, including the constitution of the Arbitral Tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.
1. (2) the provision of this Law, except Articles 8, 9, 35 and 36, apply only if the place of arbitration is in the territory of the State.
176(I). (1) The provision of this chapter shall apply to any arbitration if the seat of the Arbitral Tribunal is in Switzerland and if, at the time when the arbitration agreement was concluded, at least one of the parties had neither its domicile nor its habitual residence in Switzerland.
77. We are of the opinion that the omission of the word "only" in Section 2(2) of the Arbitration Act, 1996 does not detract from the territorial scope of its application as embodied in Article 1(2) of the Model Law. The Article merely states that the arbitration law as enacted in a given State shall apply if the arbitration is in the territory of that State. The absence of the word "only" which is found in Article 1(2) of the Model Law, from Section 2(2) of the Arbitration Act, 1996 does not change the content/import of Section 2(2) as limiting the application of Part I of the Arbitration Act, 1996 to arbitrations where the place/seat is in India.
45. Coming to the stipulations in the present arbitration clause, it is clear as day that if any dispute or difference would arise under the charter, arbitration in London to apply; that the arbitrators are to be commercial men who are members of the London Arbitration Association; the contract is to be construed and governed by the English law; and that the arbitration should be conducted, if the claim is for a lesser sum, in accordance with small claims procedure of the London Maritime Arbitration Association. There is no other provision in the agreement that any other law would govern the arbitration clause.
It is of course both useful and frequently necessary when construing a Clause in a contract to have regard to the overall commercial purpose of the contract in the broad sense of the type and general content, the relationship of the parties and such common commercial purpose as may clearly emerge from such an exercise. However, it does not seem to me to be a proper approach to the construction of a default Clause in a commercial contract to seek or purport to elicit some self-contained 'commercial purpose' underlying the Clause which is or may be wider than the ordinary or usual construction of the words of each Sub-clause will yield.
50. Thus, interpreting the Clause in question on the bedrock of the aforesaid principles it is vivid that the intended effect is to have the seat of arbitration at London. The commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the Respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the Clause that it is a proper Clause or substantial Clause and not a curial or a procedural one by which the arbitration proceedings are to be conducted and hence, we are disposed to think that the seat of arbitration will be at London.
51. Having said that the implied exclusion principle stated in Bhatia International would be applicable, regard being had to the Clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived at.
17. The aforesaid passages clearly show that the arbitration Clause has to be appositely read to understand its intention so as to arrive at a conclusion on whether it determines the seat or not.
20. It is interesting to note that even though the law governing the arbitration agreement was not specified, yet this Court held, having regard to various circumstances, that the seat of arbitration would be London and therefore, by necessary implication, the ratio of Bhatia International would not apply.
33. We are thus of the view that by Clause 28, the parties chose to exclude the application of Part I to the arbitration proceedings between them by choosing London as the venue for arbitration and by making English law applicable to arbitration, as observed earlier. It is too well settled by now that where the parties choose a juridical seat of arbitration outside India and provide that the law which governs arbitration will be a law other than Indian law, Part I of the Act would not have any application and, therefore, the award debtor would not be entitled to challenge the award by raising objections Under Section 34 before a court in India. A court in India could not have jurisdiction to entertain such objections Under Section 34 in such a case.
It is also sometimes said that parties have selected the procedural law that will govern their arbitration, by providing for arbitration in a particular country. This is too elliptical and, as an English court itself held more recently in Breas of Doune Wind Farm it does not always hold true. What the parties have done is to choose a place of arbitration in a particular country. That choice brings with it submission to the laws of that country, including any mandatory provisions of its law on arbitration. To say that the parties have "chosen" that particular law to govern the arbitration is rather like saying that an English woman who takes her car to France has "chosen" French traffic law, which will oblige her to drive on the right-hand side of the road, to give priority to vehicles approaching from the right, and generally to obey traffic laws to which she may not be accustomed. But it would be an odd use of language to say this notional motorist had opted for "French traffic law". What she has done is to choose to go to France. The applicability of French law then follows automatically. It is not a matter of choice.
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 a matter of choice any more than the notional motorist is free to choose which local traffic laws to obey and which to disregard".
39. 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 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 ICC. 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, were made in London and communicated to the parties. We find that this is a clear case of the exclusion of Part I vide Eitzen Bulk A/S, and the decisions referred to and followed therein.
...the distinction between the venue and the seat remains. But when a court finds that there is prescription for venue and something else, it has to be adjudged on the facts of each case to determine the juridical seat. As in the instant case, the agreement in question has been interpreted and it has been held that London is not mentioned as the mere location but the courts in London will have the jurisdiction, another interpretative perception as projected by the learned Senior Counsel is unacceptable.
13. Sumitomo is of no avail to the Appellant. In Sumitomo, there was no specific choice on the law of arbitration agreement and this Court held that in absence of such choice, the law of arbitration agreement would be determined by the substantive law of the contract. That is not the case in this agreement.
It laid emphasis on Reliance Industries Limited (II) (supra) and opined that an application Under Section 34 of the 1940 Act was not maintainable.
23. In view of the aforesaid development of law, there is no confusion with regard to what the seat of arbitration and venue of arbitration mean. There is no shadow of doubt that the arbitration Clause has to be read in a holistic manner so as to determine the jurisdiction of the Court. That apart, if there is mention of venue and something else is appended thereto, depending on the nature of the prescription, the Court can come to a conclusion that there is implied exclusion of Part I of the Act. The principle laid down in Sumitomo Heavy Industries Ltd. (supra) has been referred to in Reliance Industries Limited (II) and distinguished. In any case, it has no applicability to a controversy under the Act. The said controversy has to be governed by the BALCO principle or by the agreement or by the principle of implied exclusion as has been held in Bhatia International.
24. Thus, we answer the reference accordingly.
32.1 This Contract shall be governed and interpreted in accordance with the laws of India.
32.2 Nothing in this Contract shall entitle the Contractor to exercise the rights, privileges and powers conferred upon it by this Contract in a manner which will contravene the laws of India.
33.9 Arbitration proceedings shall be conducted in accordance with the UNICITRAL Model Law on International Commercial Arbitration of 1985 except that in the event of any conflict between the Rules and the provisions of this Article 33, the provisions of this Article 33 shall govern.
33.12 The venue of conciliation or arbitration proceedings pursuant to this Article unless the parties otherwise agree, shall be Kuala Lumpur and shall be conducted in English language. Insofar as practicable the parties shall continue to implement the terms of this contract notwithstanding the initiation of arbitration proceedings and any pending claim or dispute.
Article 20. Place of arbitration.--(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.
Thus, Article 20(1) mandates "determination" of "juridical seat" while Article 20(2) leaves it open to the Arbitral Tribunal to select "venue".
(3) The award shall state its date and the place of arbitration as determined in accordance with Article 20(1). The award shall be deemed to have been made at that place.
29. On a perusal of Articles 20 and 31(3) of the UNCITRAL Model Laws, we find that the parties are free to agree on the place of arbitration. Once the said consent is given in the arbitration Clause or it is interpretably deduced from the Clause and the other concomitant factors like the case of Harmony Innovation Shipping Ltd. which states about the venue and something in addition by which the seat of arbitration is determinable. The other mode, as Article 20 of the UNCITRAL Model Law provides, is that where the parties do not agree on the place of arbitration, the same shall be determined by the Arbitral Tribunal. Such a power of adjudication has been conferred on the Arbitral Tribunal. Article 31(3) clearly stipulates that the Award shall state the date and the place of arbitration as determined in accordance with Article 20(1).
24. In the present case, the arbitration Clause contemplates an award made in pursuance of 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 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. 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.
25. Here, an express choice has been made by the parties 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 ICC vide Article 14(1) of the ICC Rules. ICC having chosen London, leaves no doubt that the place of arbitration will attract the law of UK in all matters concerning arbitration.
29. We find that in the present 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 ICC and 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 ICC to hold the arbitration in London, the parties agreed 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.
31. In the present case, the place of arbitration was to be agreed upon between the parties. It had not been agreed upon; and in case of failure of agreement, the Arbitral Tribunal is required to determine the same taking into consideration the convenience of the parties. It is also incumbent on the Arbitral Tribunal that the determination shall be clearly stated in the 'form and contents of award' that is postulated in Article 31. There has been no determination.
32. Be it noted, the word 'determination' requires a positive act to be done. In the case at hand, the only aspect that has been highlighted by Mr. C.U. Singh, learned senior Counsel, is that the arbitrator held the meeting at Kuala Lumpur and signed the award. That, in our considered opinion, does not amount to determination. The Clause is categorical. The sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration which has a different connotation as has been held in Reliance Industries Ltd. (I), (II) (supra), Harmony Innovation Shipping Limited (supra) and in Roger Shashoua (supra).
34. In view of the aforesaid analysis, the irresistible conclusion is that the Courts in India have jurisdiction and, therefore, the order passed by the Delhi High Court is set aside. Resultantly, the appeal stands allowed and the High Court is requested to deal with the application preferred Under Section 34 of the Act as expeditiously as possible. There shall be no order as to costs.

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