Bharat Aluminium Co. Vs. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552

Bench Strength: FIVE

S. H. Kapadia, D. K. Jain, Surinder Singh Nijjar, Ranjana Prakash Desai & Jagdish Singh Khehar

1. If the Arbitral Agreement is construed to provide for the „Seat‟/‟Place‟ of Arbitration being outside India, Part –I of the Arbitration and Conciliation Act, 1996 will not apply.


2. The court while considering the case law of Naviera Amazonica Peruana SA vs. Compania Internacionale De Seguros Del Peru, 1988 (1) Lyod‟s Law Reports 116 and Braes Doune Wind Farm Scotland Limited vs. Alfred McAlpine Business Services Ltd., [2009] EWHC 426 (TCC) observed that the court must discern from the agreement and the surrounding circumstances, the intention of the parties as to whether a particular place mentioned in the agreement refers to the „Venue‟ or „Seat‟ of the arbitration. It further observed that where in substance the parties have agreed that the law of one country will govern and control the arbitration, the place where the arbitration is to be heard will not dictate the governing law.

Enercon (India) Ltd vs. Enercon Gmbh, (2014) 5 SCC 1

Bench Strength: Two

Surinder Singh Nijjar & Fakkir Mohamed Kalifulla

1. A "Venue of Arbitration‟ is not necessarily the „Seat of Arbitration‟ even if specifically named in the agreement. There should be other factors connecting Arbitration to the „Venue‟ for the venue to become the „Seat of Arbitration‟.
2. Unless the parties intend to have the „Venue‟ as the „Seat‟ of Arbitration, the „Venue‟ will not be „Seat‟ of Arbitration. The Seat of the Arbitration will be the place, which the parties intended as such. Such intention can be inferred from the choice of law as well.
3. In case of Arbitration, there are three laws in respect of which parties have a choice to make:


• The law governing substantive contract.
• The law governing the agreement to arbitrate and performance of that agreement.
• The law governing conduct of arbitration.

If the parties choose all the three laws or latter two of the laws mentioned above of a place/country which is different from the law of the venue, the seat of arbitration will not be the „Venue‟ but the „Place‟ whose laws applies.

Union of India vs. Hardy Exploration and Production (India) Inc., (2019) 13 SCC 472

Bench Strength: Three

Dipak Misra, A.M. Khanwilkar & Dr. D.Y. Chandrachud

1. In case of failure of Parties to determine the "Seat of Arbitration‟, the Arbitral Tribunal is required to determine the same and if there is determination of the „Seat of Arbitration‟ by the Arbitral Tribunal the same should reflect in the contents of the Award.


2. The determination requires positive act. In case there is no such determination, the „Venue‟ will not be „Seat‟ of Arbitration.
3. Merely holding meetings of the Arbitral Tribunal and signing of the award at a place does not determine the "Seat of Arbitration‟.
4. The "Venue‟ of Arbitration by itself is not "Judicial Seat of Arbitration‟.
5. When there is contextual determination of place of arbitration, it will be „Judicial Seat of Arbitration‟. Words „Place‟ and „Seat‟ of Arbitration are used interchangeably. When only the term „place‟ is stated or mentioned and no other condition is postulated it is „Seat of Arbitration‟. But if a condition precedent to it is mentioned, the place will become equivalent to „seat‟ on fulfilment of such condition.

BGS SGS Soma JV vs. NHPC Ltd., (2019) 17 SCALE 369

Bench Strength: Three

R.F. Nariman, Aniruddha Bose & V. Ramasubramanian

1. Where there is express designation of a „Venue‟ and no designation of an alternate place as the „Seat‟ combined with supranational body of rule governing arbitration and no other contrary indicia, the stated „Venue‟ is the „Seat of Arbitration‟.
2. Where there is designation of place of arbitration in arbitration clause as being the „Venue‟ of the arbitration proceedings, the „Venue‟ is the „Seat‟ of Arbitration.
3. Where the language used is “tribunals are to meet” or “to have witnesses, expert or the parties”, etc., the „Venue‟ is the convenient place of meeting and not the “Seat of Arbitration‟.
4. The fact which indicates that the proceeding shall be held at a particular place signifies that „Place‟ as „Seat of Arbitration‟.
5. In international context, if a supranational body of Rules is to govern the arbitration, the „Venue‟ is the „Seat‟ of arbitral proceeding.
6. In the national context, the stated „Venue‟ of arbitration is the „Seat of Arbitration‟.
7. Holds judgment of a coordinate bench in Union of India vs. Hardy Exploration and Production (India) Inc. as bad law being contrary to Five Judges bench judgment Bharat Aluminium Co. vs. Kaiser Aluminium Technical Services Inc.

Mankastu Impex Private Ltd. vs. Airvisual Ltd., Arbitration Petition No. 32 of 2018

Bench Strength: Three

R. Banumathi, A.S. Bopanna & Hrishikesh Roy

1. "Seat of arbitration‟ and "Venue of Arbitration‟ cannot be used interchangeably. Mere mention of a place as „Seat‟ of arbitration is not conclusive for determination of „Seat of Arbitration‟. There should be intention of the parties to have the place as „Seat of Arbitration‟. The intention should be conferred from other clauses of the agreement and conduct of the parties.
2. Choice of parties about „Place of Arbitration‟ brings with it submission of the parties to law of that Place/Country.
3. Even the decision of parties to have the choice of law of a country other than the country of „Place of Arbitration‟ is to apply in regard of administration of arbitration and its supervision.
4. Though the issue about contradiction between two judgments of two coordinate benches of the Supreme Court on the issue of determination of „Seat‟ and „Venue‟ was raised, the court opted to not answer it.