In International Commercial Arbitration, question arises as to which substantive law would govern the arbitration process? The answer to this, validity of the arbitration and “seat” or “place” is considered.

“Venue” is considered simply to be a “geographical location” as per parties’ convenience.

“Seats” decides the actual appropriate court which would’ve the exclusive jurisdiction to the case.

Where a “seat” is specified procedural aspects of that country are considered. However if the parties failed in this regard it’s governed by the law of the place of arbitration.

# Enercon India Ltd and Ors v Enercon Gmbh

• Dispute arose under International Property License Agreement (IPLA)
• Parties stated that venue would be London and governing law would be Indian Arbitration and Conciliation Act, 1966.
• Question was whether London court could’ve jurisdiction where the venue was in London.
• Supreme Court distinguished between the seat and the venue of the arbitration and held “express mention in the judgement that London was the venue, doesn’t lead to the conclusion that it was the Seat of arbitration”.
• Thus it is not necessary for the seat and venue to be the same.

# UOI v Hardy Exploration and Production (inc), unreported, 2018

• Parties had entered a production-sharing contact in November 2016, for the extraction, development and production of hydrocarbons in a  geographic block in India.
• Eventually a dispute arose as UOI allegedly relinquish the rights of Hardy Exploration and Production (HEPI).
• HEPI initiated arbitration proceedings against UOI.
• Arbitration Tribunal specified Kuala Lumpur as the venue of arbitration and it was conducted in Kuala Lumpur.
• Award was challenged (unsuccessfully) by the government under Section 34 of Arbitration and Conciliation act, 1966 by a single judge and by a division bench of Delhi High Court.
• High Court held that Indian courts don’t have jurisdiction to entertain the government’s application under Section 34 of the act.
• An appeal was filed in Supreme Court.
• Apex court held that parties were free to agree on the place of arbitrarion, and if this wasn’t specified, arbitration tribunal would decide on the question.
• In this case just because the Arbitrators held meeting in Kuala Lumpur and signed the award it “didn’t amount to determination of seat”.
• Supreme Court further said “venue of an arbitration couldn’t by that very fact be considered to be its “seat” and that “place” COULD BE EQUATED with the “seat” if no conditions precedent were attached to it.