“ARTICLE 19 - LAW AND ARBITRATION

19.1 Disputes if any, arising out of or related to or any way connected with this agreement shall be resolved amicably in the First instance or otherwise through arbitration in accordance with Rules of Arbitration of the International Chamber of Commerce. The jurisdiction of the Contract Agreement shall lie with the Courts at New Delhi, India.

19.2 This Agreement shall be governed by, construed and take effect in all respects according to the Laws and Regulations of the Sultanate of Oman.

19.3 Any dispute or difference of opinion between the parties hereto arising out of this Agreement or as to its interpretation or construction shall be referred to arbitration. The Arbitration Panel shall consist of three Arbitrators, one Arbitrator to be appointed by each party and the third arbitrator being appointed by the two Arbitrators already appointed, or in event that the two Arbitrators cannot agree upon the third Arbitrator, third Arbitrator shall be appointed by the International Chamber of Commerce. The place of the Arbitration shall be mutually discussed and agreed.

19.4 The decision of the Arbitration Panel shall be final and binding upon the parties.”

Stage 1: Whether parties expressly chose the proper law of the arbitration agreement [or dispute resolution clause].

Stage 2: In the absence of an express choice, whether parties made an implied choice of the proper law to govern the arbitration agreement [or dispute resolution clause], with the starting point for determining the implied choice of law being the law of the contract.

Stage 3: If neither an express choice nor an implied choice can be discerned, which is the system of law with which the arbitration agreement [or dispute resolution clause] has its closest and most real connection.

The answer is very little in practice… It enables the parties to found jurisdiction in a court in Brazil to declare the arbitrable nature of the dispute, to compel arbitration, to declare the validity of the award, to enforce the award, or to confirm the jurisdiction of the Brazilian courts on the merits in the event that the parties agree to dispense with arbitration.

I cannot see that comity requires this court to refrain from continuing an injunction which was in existence before the Brazilian court made its decision, which must be treated by this court as incorrect as a matter of English law and English conflicts of law principles, if I am right in this judgment.

… Factually, the state of affairs at the time the application for leave to serve OS 845 out of jurisdiction was that ICC Court had decided on Singapore as the seat and the Terms of Reference had been agreed. The parties had thus agreed to Singapore law as the curial law and to submit to the Singapore courts’ supervisory jurisdiction over matters arising out of or in relation to the arbitration agreement. The court thus possessed jurisdiction over the matter.

(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this Article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this Article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in Article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.

The effect of Art 5 of the Model Law is to confine the power of the court to intervene in an arbitration to those instances which are provided for in the Model Law and to “exclude any general or residual powers” arising from sources other than the Model Law…The raison d’être of Art 5 of the Model Law is not to promote hostility towards judicial intervention but to “satisfy the need for certainty as to when court action is permissible”.

The effect of Art 5, as noted by us in LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd [2013] 1 SLR 125 at [36] … is to “confine the power of the court to intervene in an arbitration to those instances which are provided for in the Model Law and to ‘exclude any general or residual powers’ arising from sources other than the Model Law” ... Article 5 has also been explained as guaranteeing the “reader and user that he will find all instances of possible court intervention in [the Model Law], except for matters not regulated by it” (see UNCITRAL Model Law on International Commercial Arbitration: note by the Secretariat (UN Doc A/CN.9/309), which was issued following the adoption of the Model Law by the UNCITRAL on 21 June 1985, at para 16).

15. In this spirit, the Model Law envisages court involvement in the following instances. A first group comprises appointment, challenge and termination of the mandate of an arbitrator (articles 11, 13 and 14), jurisdiction of the arbitral tribunal (article 16) and setting aside of the arbitral award (article 34). These instances are listed in article 6 as functions which should be entrusted, for the sake of centralization, specialization and acceleration, to a specially designated court or, as regards articles 11, 13 and 14, possibly to another authority (e.g. arbitral institution, chamber of commerce). A second group comprises court assistance in taking evidence (article 27), recognition of the arbitration agreement, including its compatibility with court-ordered interim measures of protection (articles 8 and 9), and recognition and enforcement of arbitral awards (articles 35 and 36).

16. Beyond the instances in these two groups [namely, (1) appointment, challenge and termination of the mandate of an arbitrator, jurisdiction, and setting-aside; and (2) court assistance in taking evidence, recognition of the arbitration agreement, and recognition and enforcement of arbitral awards], "no court shall intervene, in matters governed by this Law". This is stated in the innovative article 5, which by itself does not take a stand on what is the appropriate role of the courts but guarantees the reader and user that he will find all instances of possible court intervention in this Law, except for matters not regulated by it (e.g., consolidation of arbitral proceedings, contractual relationship between arbitrators and parties or arbitral institutions, or fixing of costs and fees, including deposits). Especially foreign readers and users, who constitute the majority of potential users and may be viewed as the primary addressees of any special law on international commercial arbitration, will appreciate that they do not have to search outside this Law.

By way of the present suit, the Plaintiff is constrained to approach this Hon’ble Court to seek urgent declaratory and injunctive relief, being aggrieved by the obdurate insistence of the Defendant to continue with ICC Arbitration No. 27726/HTG/YMK (“the ICC arbitration”) with the present quorum/constitution of the Arbitral Tribunal (“the Tribunal”).

As submitted in the present suit, there exist compelling circumstances militating against the continuance of the ICC arbitration as the present quorum/constitution of the Tribunal raises serious concerns about the said proceedings being conducted in a transparent, unbiased and impartial manner. These circumstances include but are not limited to the controversial and exceptional situation which has arisen owing to the Defendant’s obdurate intent to continue with the ICC arbitration despite the fact that the Tribunal has, amongst its members, a co-arbitrator (nominated by the Defendant) whose lack of impartiality and independence is writ large on the record. The said co-arbitrator, by his own admission, stated that he saw no reason to make necessary disclosures with respect to his previous involvement as a nominated co-arbitrator in an earlier arbitration concerning Mr Atwal (the Chairman of the Defendant) on the basis that “Had I made the disclosure, the possibility of the Respondent seeking to challenge my impartiality could not be discounted”. Thus, the said co-arbitrator consciously decided not to disclose his prior appointment both prior to his appointment and during the arbitration proceedings until the Plaintiff raised the issue. In the circumstances, the further continuance of the arbitration proceedings with the present quorum/constitution has evidently been rendered vexatious, oppressive, unconscionable and violative of the public policy of India including fundamental policy of Indian law, morality and justice.

97…on 21.05.2025, defendant [MSA] filed a motion before the Singapore High Court in the ICC Court’s order challenge proceedings seeking restraint against the plaintiff [EPIL] from maintaining and/or continuing with the captioned suit. On the same day, the defendant wrote to the Tribunal to press for the evidential hearing and moreover, when the plaintiff again requested the Tribunal for deferment of the hearing, thereafter defendant vide email dated 22.05.2025, again pressed for the evidential hearing, citing that this Court has not stayed the same. Consequently, on 22.05.2025, the Tribunal directed that the evidential hearing would commence from 26.05.2025.

98. Meanwhile, on 23.05.2025, the High Court of Singapore granted an ex-parte interim anti-suit injunction against the plaintiff restraining it from continuing with the captioned suit and also rejected the plaintiff’s withdrawal application. On 26.05.2025, the evidentiary hearing continued before the Tribunal and on 27.05.2025 it concluded while closing the evidentiary hearing in the arbitration proceedings.

99. A bare perusal of the sequence of events that have transpired during the course of the present proceedings unmistakably reveals a concerted and calculated attempt by the defendant to entangle the plaintiff in vexatious, coercive and strategically manipulative litigation. The conduct of the defendant, when examined holistically, demonstrates a clear pattern of abuse of process intended not to resolve disputes in good faith, but rather to subject the plaintiff to procedural hardship and jurisdictional entanglement. Quite apparently, the defendant has been unrelenting in pressing for the continuation of arbitral proceedings before the Tribunal, despite having full knowledge of the pending challenges both before the High Court of Singapore and before this Court. Such persistence, in the face of concurrent judicial scrutiny by competent for a, reflects a wilful disregard for judicial comity and procedural fairness.

100. Simultaneously, the defendant went further to oppose the plaintiff’s application for withdrawal before the High Court of Singapore, thereby obstructing an attempt at disengagement from the arbitral process. It was coupled with the defendants’ own fresh motion seeking an anti-suit injunction, yet another tactical step designed not to resolve the underlying dispute, but to suppress the plaintiff’s recourse to legal remedies and to preclude judicial examination of the legitimacy of the arbitral process. The totality of this conduct unequivocally suggests a mala fide and oppressive litigation strategy, one which is intended to exhaust, delay, coerce and manoeuvre the plaintiff by compelling it to defend itself across multiple legal forums simultaneously, irrespective of the merits of the dispute. Alongside, it is intended to prevent the plaintiff from pursuing any legitimate claim before the judicial fora despite the plaintiff having legitimate apprehensions qua the ongoing arbitration proceedings.

101. Such tactics, which are neither fair nor in consonance with the objectives of arbitration or civil litigation, amount to a weaponisation of the judicial process for collateral purposes…This Court, therefore, cannot remain a silent spectator where one litigant has clearly been subjected to undue procedural torment by another under the pretext of arbitration, that too when the arbitration proceeding in question is itself based on the foundation of a grave and incurable error of non-disclosure giving rise to legitimate doubts in the mind of the plaintiff qua the fairness, impartiality and independence of the entire arbitration proceedings.

102. In the present case, the only impediment which is highlighted by the defendant is the existence of an arbitration mechanism. The arbitration mechanism is agreed upon between the parties, and, therefore, needs to be respected. However, what is more important is whether the proceedings of arbitration have turned vexatious and oppressive, and if the answer to his question is in the affirmative, this Court cannot shy away from its duty to intervene in the exercise of its civil jurisdiction. The non intervention of this Court would not only amount to perpetuating a wrong at the hands of the court would also compel the plaintiff to participate in a dead wood exercise, as no just and sustainable outcome could result from an adjudicatory exercise whose fairness itself is under question.

103. So long as the plaintiff does not desist from participating in the arbitration proceedings as per the arbitration mechanism, subject to the same being in accordance with the fundamental principle of fairness, there is no question of entertaining any grievance pertaining to the arbitration mechanism. However, in cases where the plaintiff reasonably establishes that the arbitration proceedings are vexatious and oppressive, the Courts in India are not powerless to interdict such proceedings and to protect the litigant from victimisation.

104. In view of the aforesaid and in the peculiar facts and circumstances of the case, it is crystal clear that the suit for grant of an anti-arbitration injunction is maintainable before this Court as the arbitration proceedings are prima facie vexatious and oppressive in nature.

……

114. It has already been established above that the arbitration proceedings in the present case are prima facie vexatious and oppressive in nature. It stands confirmed by the ICC Court decision itself that the ICC Rules mandatorily require full and fair disclosure, to the extent that any doubt was to be resolved in favour of disclosure. The non-compliance on the part of the concerned co-arbitrator is also evident and admitted. In such a scenario, whether the said non-disclosure is meaningless or otherwise could only be decided once the suit proceeds further.

…

119. Moreover, grave and irreparable harm would be caused to the plaintiff if the arbitral proceedings are permitted to continue during the pendency of the present suit, particularly if the suit is ultimately decreed in favour of the plaintiff. Allowing the arbitration to proceed in parallel would not only render the outcome of this suit otiose but may also create a situation where the arbitral tribunal concludes the proceedings and renders an award before this Court can adjudicate upon the threshold issue of the arbitrator’s impartiality and jurisdiction. Such a scenario would undermine the very purpose of this suit and result in a multiplicity of proceedings, entailing considerable hardship, especially given the resources and time involved in institutional arbitration. The trajectory of the arbitral process over the past few days itself demonstrates an undue haste on the part of the Tribunal, owing to the continuous insistence of the defendant, raising the legitimate apprehension that the arbitration may reach a conclusion before the legal challenge pending before this Court is meaningfully adjudicated.

120. The conduct of the defendant across various forums further fortifies the apprehension of mala fixes and tactical manipulation. The defendant has shown an unusual sense of urgency in seeking relief before the Singapore Court, has vehemently opposed the plaintiff’s decision to withdraw its own anti-suit application before that Court [sic – this would be a reference to EPIL seeking to withdraw the Challenge Application], and has simultaneously pressed ahead with the arbitral proceedings in a manner that appears calculated to defeat the jurisdiction of this Court. The cumulative effect of these actions discloses a strategic attempt to short-circuit the legal process and to pre-empt the plaintiff’s right to have its objections heard in an appropriate forum.

121. It is rightly submitted that if the injunction is not granted at this stage, the plaintiff would be placed in an untenable position; firstly, of being compelled to participate in an arbitral proceeding before a Tribunal whose impartiality is in serious doubt; and secondly, of being forced to submit to the jurisdiction of the High Court of Singapore, despite seeking withdrawal of the said proceedings. Such coercion would not only violate the principle of party autonomy but also severely prejudice the plaintiff’s ability to defend its position in a fair and neutral environment…

122. In view of the foregoing analysis, this Court has the jurisdiction to entertain this civil suit as the arbitration proceedings are prima facie vexatious and oppressive in nature. Moreover, since all three pre-conditions, i.e., prima facie case, balance of convenience and irreparable injury, tilt in favour of the plaintiff, therefore, it is a fit case to grant an interim injunction.

123.  Accordingly, the proceedings of the Arbitral Tribunal shall stand stayed till the pendency of the suit and the parties are injuncted from participating in the same.

… an antiarbitration injunction should only be granted by the Court in exceptional circumstances, and unless strong reasons are established, parties to an arbitration agreement ought to be kept to their bargain. If the respondent can establish that the claim sought to be submitted falls within the scope of the arbitration agreement, then the parties should abide by their agreement, and it would be against the principles and policy of the courts to grant an injunction to restrain the commencement or continuation of the arbitration. [Emphasis added.]

The Plaintiff has clearly shown that these issues are not covered by, and not within the scope of the arbitration clause of the Agreement, the Defendants’ rights under that clause have not been infringed, and any arbitration of such claims or assertions is in my judgment vexatious, oppressive and an abuse of process, in seeking to attack the judgments of the Hong Kong Courts, and undermine enforcement of the 1st Award in Hong Kong.

In cases involving an arbitration agreement or an exclusive jurisdiction clause, it would suffice to show that there was a breach of such an agreement, and anti-suit relief would ordinarily be granted unless there are strong reasons not to: Donohue v Armco Inc [2002] 1 All ER 749 (“Donohue”), per Lord Bingham at [24]; Morgan Stanley Asia (Singapore) Pte v Hong Leong Finance Ltd [2013] 3 SLR 409 (“Morgan Stanley”) at [29]. There will be no need to adduce additional evidence of unconscionable conduct in such cases. Crucially, however, this approach is subject to an important caveat: there is no requirement for the court to feel any diffidence in granting an anti-suit injunction, “provided that it is sought promptly and before the foreign proceedings are too far advanced” [emphasis added]: Aggeliki Charis Compania Maritima SA v Pagnan SpA [1995] 1 Lloyd’s Rep 87 (“The Angelic Grace”) at 96… [Emphasis added]

the continued pursuit of the proceedings in the Philippines by Phoenix is, as I have a held, a breach of the order I made on 18 January 2024 ie, SIC/ORC 5/2024 and a contempt of this court. As such, it does not seem to me that Phoenix can properly pray in aid the fact that the proceedings in the Philippines have progressed since 18 January 2024 in support of its case that such progress is a relevant factor to be taken into account in its favour.

it would be against public policy to recognise or enforce a foreign judgment on the application of a party, who having notice of an anti-suit injunction from the court of the forum, proceeds to carry on with the foreign proceedings and subsequently procures the judgment from the foreign court.

the appellant sought to invoke considerations of comity by relying on a foreign judgment which post-dated, and were in breach of, our earlier decision in Oro Negro (CA) ([6] supra) that restored the Interim Injunctions. …There was no doubt that the Mexican decisions have been procured in breach of the Interim Injunctions which this court had previously restored in Oro Negro (CA). … we saw no good reason why the permanent injunction should not be granted given the continuing breach. To deny the respondents permanent injunctive relief would indeed have been tantamount to not giving effect to the previously ordered Interim Injunctions. …judicial comity could not be applied at the expense of the court’s role to protect its jurisdiction and orders.