Yograj Infras Ltd v Ssang Yong Engineering & Construction Co Ltd  INSC 769 concerned interim orders made in a Singapore arbitration arising out of the termination of a road construction contract governed by Indian law. The contract provided for all disputes to be referred to arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules), with the seat of arbitration being Singapore.
The appellant sought to appeal from the interim order to the Indian courts under s 37(2)(b) of the Indian Act. Whilst acknowledging the effect of decisions such as Bhatia International, the Court found:
- ordinarily, the proper law of the contract (here India) was the law of the arbitration (note that in other jurisdictions, the law of the arbitration is usually considered to be that of the seat of arbitration unless the parties otherwise agree, not the proper law of the contract);
- but, by choosing the SIAC Rules to govern the arbitration, the parties had impliedly excluded the operation of Part I of the Indian Act.
Importantly, the Court’s finding that the parties excluded the operation of the Indian Act was based on an older version of the SIAC Rules and may not necessarily apply to the new Rules. Rule 32 of the SIAC Rules then in force expressly provided that where the seat of arbitration was Singapore, the law of the arbitration was the International Arbitration Act of Singapore. Therefore, the parties agreed that a law other than the Indian Act was to govern the arbitration.
But the equivalent to the old rule 32 no longer exists following the 2010 amendments to the SIAC Rules. Nor is such a rule found in other key arbitral rules used in the Asia-Pacific region (eg, the ACICA Rules, HKIAC Rules, ICC Rules). Accordingly, it is unclear whether the adoption of institutional rules from an institution outside India, combined with a seat of arbitration outside India, would be sufficient to imply an agreement by the parties to exclude the operation of Part I of the Indian Act.
The decision does, however, suggest that the inclusion of an express choice of a non-Indian law to govern the arbitration (also referred to as the ‘curial law’) may be sufficient to exclude the operation of Part I of the Indian Act. Such clauses are not normally contained in arbitration agreements as usually the law of the chosen seat of arbitration is accepted as being the law governing the arbitration.