- (1.) This is an application under Section 11 of the Arbitration and conciliation Act, 1996 (for short "the Act") by National Aluminium company Ltd. ('nalco' for short) through Mr Ashim Choudhuary, executive Director made to Hon'ble the Chief Justice of India with a request to nominate an arbitrator as M/s Metalimpex Ltd. ("metalimpex" for short) , the respondent, failed to nominate an arbitrator in terms of the arbitration agreement between the parties. NALCO is an Indian company and metalimpex a Bangladeshi company. The arbitration would be international commercial arbitration as defined in clause (f) of sub-section (1) of Section 2 of the Act as under: "2.Definitions. (1) In this Part, unless the context otherwise requires, (a) - (e) * * * (f) international commercial arbitration' means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in india and where at least one of the parties is (i) an individual who is a national of, or habitually resident in, any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country; (g) - (h) * * *"
(2.) The arbitration agreement was entered into between the parties under the Arbitration Act, 1940 before it was repealed by the Act. Section 85 of the act provided for repeal and saving. It is as under: "85.Repeal and savings. (1) The Arbitration (Protocol and convention) Act, 1937 (6 of 1937) , the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed. (2) Notwithstanding such repeal, (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force; (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this act, be deemed respectively to have been made or issued under this act. "
(3.) The arbitration agreement is as under: "In the event of any question or dispute arising under or out of or relating to construction, meaning and operation or effect of this contract or breach thereto, matter in dispute shall be referred to two arbitrators, one to be nominated by the seller and the other by the buyer and in case of the said arbitrators not agreeing then an umpire to be appointed by the arbitrators in writing before proceeding on the reference. The decision of the arbitrators or in the event of their not agreeing, of the said umpire shall be final and binding on the parties to the contract. The provisions of the Indian Arbitration Act and the Rules made there under shall apply to the proceedings. The arbitrator or the umpire as the case may be shall be entitled with the consent of the parties, to enlarge the time from time to time, for making the award. The arbitrators/umpire shall give a reasoned award. The venue of the arbitration shall be Bhubaneswar (India). The arbitration shall take place in English language. Pending the settlement and thereafter until the arbitrators make the award. (A) The parties shall continue to perform their obligations hereunder without prejudice to a final adjustment in accordance with the award made by the arbitrators; except that where the dispute is for non-payment or non-realization of the price of the materials, the seller will not be obliged to continue/supply the materials; and (B) The operation and activities which shall have given rise to the arbitration need not be discontinued, but if the award recognizes that a complaint was justified, provisions may be made in the award for such reparation or compensation in respect of such continued operations and activities as shall be decided by the arbitrators to be appropriate. ";