Unless the jurisdiction of the Indian Courts is not specifically excluded at least part I of the Arbitration and Conciliation Act, 1996 whereunder there is a power to appoint Arbitrator is covered by Section 11(6) of the Act, this Court would have jurisdiction to appoint an Arbitrator even if the arbitration is to be governed by foreign law. [Para 8] [256-E-F] Bhatia International v. Bulk Trading S.A. and ANOTHER 2002(4) SCC 105; Indtel Technical Services Private Ltd. v. W.S. Atkins Rail Ltd. 2008 (10) SCC 308; Citation Infowares Ltd. v. Equinox Corporation 2009 (7) SCC 220; National Thermal Power Corporation v. Singer Company and ANOTHER 1992 (3) SCC 551; CMC Ltd. v. Unit Trust of India and Ors. 2007 (10) SCC 751- referred to. 2. The arbitrability of the dispute is to be determined in terms of the law governing arbitration agreement and the arbitration proceedings has to be conducted in accordance with the curial law. [Para 12] [268-E-G] Sumitomo Heavy Industries Ltd. v. ONGC Ltd. and Ors. 1998 (1) SCC 305 - relied on. The Law and Practice of Commercial Arbitration in England by Mustill and Boyd 2nd Edition - referred to. 3.1 Article 23 of the Distributorship Agreement is to be read in the backdrop of Article 22 and more particularly, Article 22.1. It is clear from the language of Article 22.1 that the whole Agreement would be governed by and construed in accordance with the laws of The Republic of Korea. On seeing the language of Article 23.1 in the light of the Article 22.1, it is clear that the parties had agreed that the disputes arising out of the Agreement between them would be finally settled by the arbitration in Seoul, Korea. The rules of arbitration to be made applicable were the Rules of International Chamber of Commerce. This gives the prima facie impression that the seat of arbitration was only in Seoul, South Korea. [Paras 12, 13] [268-D-E; 270-E-F] 3.2 It cannot be said that because of the bracketed portion in the Article 23, to the effect "or such other place as the parties may agree in writing", the seat could be elsewhere also, thus, there is not express exclusion of Part I of the Act. A bracket could not be allowed to control the main clause. Bracketed portion is only for the purposes of further explanation. The bracketed portion is meant only for the convenience of the arbitral tribunal and/or the parties for conducting the proceedings of the arbitration, but the bracketed portion does not, in any manner , change the seat of arbitration, which is only Seoul, Korea. The language is clearly indicative of the express exclusion of Part I of the Act. The advantage of bracketed portion cannot be taken.
