Ssangyong Engineering & Construction Co. Ltd. vs National Highways Authority of India (NHAI)

stating that they are to be found on a certain website – This being the case, the appellant would be directly affected, not being allowed to comment on the applicability or interpretation of those guidelines – Thus, majority award set aside u/s.34(2)(a)(iii) – Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other party’s consent – Indeed, the Circular expressly stipulated that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them – Appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply – Majority award created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement – Thus, a fundamental principle of justice was breached – Such a course of conduct would be contrary to fundamental principles of justice as followed in this country and shocks the conscience of the Court – However, this ground is available only in very exceptional circumstances, as in the present case – Judgments of the Single Judge and the Division Bench of the High Court, set aside – Consequently, the majority award is also set aside – In order to do complete justice between the parties, invoking power u/Art.142 of the Constitution of India, the minority award is upheld – This award, together with interest now be executed between the parties – Foreign Awards (Recognition and Enforcement) Act, 1961 – s.7 – Constitution of India – Art.142 – UNCITRAL Model Law on International Commercial Arbitration – Art.26.

Arbitration and Conciliation Act, 1996 – s.34 – Setting aside an arbitral award, in conflict with “public policy of India”– Law post Amendment Act, 2015 – Held: “Public policy of India”, whether contained in s.34 or s.48 of the 1996 Act would now mean the “fundamental policy of Indian law” as explained in paragraphs 18 and 27 of Associate Builders case i.e. the fundamental policy of Indian law would be relegated to the “Renusagar” understanding of this expression – Expansion of the phrase “public policy of India”, made in Western Geco case has been done away with – Western Geco as explained in paragraphs 28 and 29 of Associate Builders, would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court’s intervention would be on the merits of the award, which cannot be permitted post amendment – However, principles of natural justice, as contained in ss.18 and 34(2)(a)(iii) of the 1996 Act continue to be grounds of challenge of an award, as is contained in paragraph 30 of Associate Builders – Arbitration and Conciliation (Amendment) Act, 2015.

Arbitration and Conciliation (Amendment) Act, 2015 – Applicability of – Held: Section 34, as amended, will apply only to s.34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may have commenced prior to that date – Arbitration and Conciliation Act, 1996 – s.34.

Interpretation of Statutes – Amendment by way of clarification – Retrospective or prospective – Held: Amendment made in Explanations 1 and 2 to s.34(2)(b)(ii) have been made for the avoidance of any doubt – Even on principle, it is the substance of the amendment that is to be looked at rather than the form – Therefore, even in cases where, for avoidance of doubt, something is clarified by way of an amendment, such clarification cannot be retrospective if the earlier law has been changed substantively – Arbitration and Conciliation Act, 1996 – Explanations 1 and 2 to s.34(2)(b)(ii).

Words & expressions – “Public policy of India” – Meaning of – Held: Public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paragraphs 18 and 27 of Associate Builders case, or secondly, that such award is against basic notions of justice or morality as understood in paragraphs 36 to 39 of Associate Builders – Explanation 2 to s.34(2)(b)(ii) and Explanation 2 to s.48(2)(b)(ii) was added by the Amendment Act only so that Western Geco case, as understood in Associate Builders, and paragraphs

28 and 29 in particular, is now done away with – Arbitration and Conciliation Act, 1996 – Explanation 2 to s.34(2)(b)(ii) & Explanation 2 to s.48(2)(b)(ii) – Arbitration and Conciliation (Amendment) Act, 2015.

Arbitration and Conciliation Act, 1996 – s.34(2A) –”Patent illegality” – Held: Insofar as domestic awards made in India are HIGHWAYS AUTH. OF INDIA (NHAI)

concerned, an additional ground is now available u/sub-s.(2A), added to s.34 by the Amendment Act, 2015– There must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law – If an arbitrator is alleged to have wandered outside the contract and dealt with matters not allotted to him, this would be a jurisdictional error which could be corrected on the ground of “patent illegality”, which would not apply to international commercial arbitrations that are decided under Part II of the 1996 Act – A decision which is perverse, as understood in paragraphs 31 and 32 of Associate Builders, while no longer being a ground for challenge under “public policy of India”, would certainly amount to a patent illegality appearing on the face of the award – Arbitration and Conciliation (Amendment) Act, 2015.

Arbitration and Conciliation Act, 1996 – ss.28(3), 34(2A) – Held: Change made in s.28(3) by the Amendment Act really follows what is stated in paragraphs 42.3 to 45 in Associate Builders case, namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; that the arbitrator’s view is not even a possible view to take – Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction – This ground of challenge will now fall within the new ground added u/s.34(2A) – Arbitration and Conciliation (Amendment) Act, 2015.

Arbitration and Conciliation Act, 1996 – s.34(2)(a)(iii) and ss.18, 24(3), 26 – Held: ss.18, 24(3) and 26 are important pointers to what is contained in the ground of challenge mentioned in s.34(2)(a)(iii) – Under s.34(2)(a)(iii), one of the grounds of challenge of an arbitral award is that a party is unable to present its case – Where materials are taken behind the back of the parties by the Tribunal, on which the parties have had no opportunity to comment, the ground u/s.34(2)(a)(iii) would be made out. Arbitration and Conciliation Act, 1996 – s.34(2)(a)(iv) – ”submission to arbitration”– Challenge to an arbitral award – Held: Where an arbitral tribunal has rendered an award which decides matters either beyond the scope of the arbitration agreement or beyond the disputes referred to the arbitral tribunal, the arbitral award could be said to have dealt with decisions on matters beyond the scope of submission to arbitration – To bring in by the backdoor grounds relatable to s.28(3) of the 1996 Act to be matters beyond the scope of submission to arbitration u/s.34(2)(a)(iv) would not be permissible as this ground must be construed narrowly and so construed, must refer only to matters which are beyond the arbitration agreement or beyond the reference to the arbitral tribunal.

Words & expressions –”most basic notions of … justice”– Meaning of – Held: Expression”most basic notions of … justice” finds mention in Explanation 1 to sub-clause (iii) to s.34(2)(b) – Here, what is referred to is, substantively or procedurally, some fundamental principle of justice which has been breached, and which shocks the conscience of the Court – Arbitration and Conciliation Act, 1996 – Explanation 1 to sub-clause (iii) to s.34(2)(b).

Allowing the appeal, the Court

HELD: Applicability of the Arbitration and Conciliation (Amendment) Act, 2015

1.1 Since the Section 34, Arbitration and Conciliation Act, 1996 petition in the present case is dated 30.07.2016, an important question as to the applicability of the parameters of review of arbitral awards would arise in this case. More particularly, radical changes have been made by the Arbitration and Conciliation (Amendment) Act, 2015 with effect from 23.10.2015– in particular, in the “public policy of India” ground for challenge of arbitral awards. The question which arises is whether the amendments made in Section 34 are applicable to applications filed under Section 34 to set aside arbitral awards made after 23.10.2015. The amendments made in Explanations

1 and 2 to Section 34(2)(b)(ii) have been made for the avoidance of any doubt, which language, however, is not found in Section 34(2A). Apart from the anomalous position which would arise if the Section were to be applied piecemeal, namely, that Explanations 1 and 2 were to have retrospective effect, being only to remove doubts, whereas sub-section (2A) would have to HIGHWAYS AUTH. OF INDIA (NHAI)

apply prospectively as a new ground, with inbuilt exceptions, having been introduced for the first time, it is clear that even on principle, it is the substance of the amendment that is to be looked at rather than the form. Therefore, even in cases where, for avoidance of doubt, something is clarified by way of an amendment, such clarification cannot be retrospective if the earlier law has been changed substantively. In the present case, fundamental changes have been made in the law. The expansion of “public policy of India” in ONGC Ltd. v. Saw Pipes Ltd., (2003)

5 SCC 705 [“Saw Pipes”] and ONGC Ltd. v. Western Geco International Ltd., (2014) 9 SCC 263 [“Western Geco”] has been done away with, and a new ground of “patent illegality”, with inbuilt exceptions, has been introduced. Given this, it is declared that Section 34, as amended, will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may have commenced prior to that date. [Paras 10-12] [542-A-C; 544-G-H; 545-A-B; F-H]

Changes made by the Amendment Act, 2015

1.2 Whether the ground of “public policy of India” is used to set aside an award under Section 34, or to refuse recognition and enforcement of a foreign award under Section 48, Section 34(2)(b) ought to have been construed in the same manner as Section 48(2)(b). This Court, in Saw Pipes, added yet another ground, namely, that of “patent illegality” to the three grounds mentioned in Renusagar in order to set aside an award under Section 34 of the 1996 Act. Yet another expansion of the phrase “public policy of India” contained in Section 34 of the 1996 Act was by another judgment of this Court in Western Geco, which was explained in Associate Builders. [Paras 13, 15 and 17] [548-C-D; 549-D]

1.3 The expression “public policy of India”, whether contained in Section 34 or in Section 48, would now mean the “fundamental policy of Indian law” as explained in paragraphs 18 and 27 of Associate Builders, i.e., the fundamental policy of Indian law would be relegated to the “Renusagar” understanding of this expression. This would necessarily mean that the Western Geco expansion has been done away with. In short, Western Geco, as explained in paragraphs 28 and 29 of Associate Builders, would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court’s intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in paragraph

30 of Associate Builders. The ground for interference insofar as it concerns “interest of India” has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be understood as a conflict with the “most basic notions of morality or justice”. This again would be in line with paragraphs

36 to 39 of Associate Builders, as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paragraphs

18 and 27 of Associate Builders, or secondly, that such award is against basic notions of justice or morality as understood in paragraphs 36 to 39 of Associate Builders. Explanation 2 to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco, as understood in Associate Builders, and paragraphs 28 and 29 in particular, is now done away with. [Paras 23-25] [567-B-H]

1.3 Insofar as domestic awards made in India are concerned, an additional ground is now available under sub-section (2A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within “the fundamental policy of Indian law”, namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality. Secondly, it is also made clear that re-HIGHWAYS AUTH. OF INDIA (NHAI)

appreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award. Paragraph 42.1 of Associate Builders, namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Paragraph 42.2 of Associate Builders, however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award. The change made in Section 28(3) by the Amendment Act really follows what is stated in paragraphs 42.3 to 45 in Associate Builders, namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrator’s view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2A). [Paras 26-29] [568-A-F]

1.4 A decision which is perverse, as understood in paragraphs 31 and 32 of Associate Builders, while no longer being a ground for challenge under “public policy of India”, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterised as perverse. [Para 30] [568-G-H; 569-A]

The Ground of Challenge under Section 34(2)(a)(iii)

1.5 Under Section 34(2)(a)(iii), one of the grounds of challenge of an arbitral award is that a party is unable to present its case. In order to understand the import of Section 34(2)(a)(iii), Section 18 of the 1996 Act should also be seen. Section 24(3) is a verbatim reproduction of Article 24(3) of the UNCITRAL Model Law on International Commercial Arbitration. Similarly, Section 26(1) and (2) is a verbatim reproduction of Article 26 of the UNCITRAL Model Law. Sub-section (3) of Section 26 has been added by the Indian Parliament in enacting the 1996 Act. Sections 18, 24(3), and 26 are important pointers to what is contained in the ground of challenge mentioned in Section 34(2)(a)(iii). Under Section 18, each party is to be given a full opportunity to present its case. Under Section 24(3), all statements, documents, or other information supplied by one party to the arbitral tribunal shall be communicated to the other party, and any expert report or document on which the arbitral tribunal relies in making its decision shall be communicated to the parties. Section 26 is an important pointer to the fact that when an expert’s report is relied upon by an arbitral tribunal, the said report, and all documents, goods, or other property in the possession of the expert, with which he was provided in order to prepare his report, must first be made available to any party who requests for these things. Secondly, once the report is arrived at, if requested, parties have to be given an opportunity to put questions to him and to present their own expert witnesses in order to testify on the points at issue. [Paras 34-36] [575-D-E; 576-E-H; 577-A]

1.6 Under the rubric of a party being otherwise unable to present its case, the standard textbooks on the subject have stated that where materials are taken behind the back of the parties by the Tribunal, on which the parties have had no opportunity to comment, the ground under Section 34(2)(a)(iii) would be made out. [Para 37] [577-B]

The Ground of Challenge under Section 34(2)(a)(iv)

1.7 So far as this defence is concerned, standard textbooks on the subject have held that the expression “submission to arbitration” either refers to the arbitration agreement itself, or to disputes submitted to arbitration, and that so long as disputes raised are within the ken of the arbitration agreement or the disputes submitted to arbitration, they cannot be said to be disputes which are either not contemplated by or which fall outside the arbitration agreement. The expression “submission to HIGHWAYS AUTH. OF INDIA (NHAI)

arbitration” occurs in various provisions of the 1996 Act. Thus, under Section 28(1)(a), an arbitral tribunal “… shall decide the dispute submitted to arbitration …”. Section 43(3) of the 1996 Act refers to “… an arbitration agreement to submit future disputes to arbitration ….”. Also, it has been stated that where matters, though not strictly in issue, are connected with matters in issue, they would not readily be held to be matters that could be considered to be outside or beyond the scope of submission to arbitration. [Para 39] [581-E-H]

1.8 Where an arbitral tribunal has rendered an award which decides matters either beyond the scope of the arbitration agreement or beyond the disputes referred to the arbitral tribunal, as understood in Praveen Enterprises, the arbitral award could be said to have dealt with decisions on matters beyond the scope of submission to arbitration. In the guise of misinterpretation of the contract, and consequent “errors of jurisdiction”, it is not possible to state that the arbitral award would be beyond the scope of submission to arbitration if otherwise the aforesaid misinterpretation (which would include going beyond the terms of the contract), could be said to have been fairly comprehended as “disputes” within the arbitration agreement, or which were referred to the decision of the arbitrators as understood by the authorities above. If an arbitrator is alleged to have wandered outside the contract and dealt with matters not allotted to him, this would be a jurisdictional error which could be corrected on the ground of “patent illegality”, which would not apply to international commercial arbitrations that are decided under Part II of the 1996 Act. To bring in by the backdoor grounds relatable to Section 28(3) of the 1996 Act to be matters beyond the scope of submission to arbitration under Section 34(2)(a)(iv) would not be permissible as this ground must be construed narrowly and so construed, must refer only to matters which are beyond the arbitration agreement or beyond the reference to the arbitral tribunal. [Paras 42, 43] [598-H; 599-A-E]

Most Basic Notions of Justice

1.9 The expression “most basic notions of … justice” finds mention in Explanation 1 to sub-clause (iii) to Section 34(2)(b). Here again, what is referred to is, substantively or procedurally, some fundamental principle of justice which has been breached, and which shocks the conscience of the Court. The government guidelines that were referred to and strongly relied upon by the majority award to arrive at the linking factor were never in evidence before the Tribunal. In fact, the Tribunal relied upon the said guidelines by itself and states that they are to be found on a certain website. These guidelines were never, in fact, disclosed in the arbitration proceedings. The appellant would be directly affected as it would otherwise be unable to present its case, not being allowed to comment on the applicability or interpretation of those guidelines. For example, the appellant could have argued, without prejudice to the argument that linking is de hors the contract, that of the three methods for linking the New Series with the Old Series, either the second or the third method would be preferable to the first method, which the majority award has applied on its own. For this reason, the majority award needs to be set aside under Section 34(2)(a)(iii). [Paras 44-46] [599-E-F; 604-B-F]

1.10 Insofar as the argument that a new contract had been made by the majority award for the parties, without the consent of the appellant, by applying a formula outside the agreement, as per the Circular dated 15.02.2013, which itself could not be applied without the appellant’s consent, this ground under Section 34(2)(a)(iv) would not be available. The appellant argued before the arbitral tribunal that a new contract was being made by applying the formula outside what was prescribed, which was answered by the respondent, stating that it would not be possible to apply the old formula without a linking factor which would have to be introduced. Considering that the parties were at issue on this, the dispute as to whether the linking factor applied, thanks to the Circular dated 15.02.2013, is clearly something raised and argued by the parties, and is certainly something which would fall within the arbitration clause or the reference to arbitration that governs the parties. This being the case, this argument would not obtain and Section 34(2)(a)(iv), as a result, would not be attracted. However, when it comes to the public policy of India argument based upon “most basic notions of justice”, it is clear HIGHWAYS AUTH. OF INDIA (NHAI)

that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. The formula that was applied by the agreement continued to be applied till February, 2013 – in short, it is not correct to say that the formula under the agreement could not be applied in view of the Ministry’s change in the base indices from 1993-94 to 2004-05. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other party’s consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. The appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which is contrary to the ethos of Section 34 of the 1996 Act. The judgments of the Single Judge and of the Division Bench of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the Scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, the minority award, is upheld and it is this award, together with interest, that will now be executed between the parties. Given the reliefs claimed by the appellant in their statement of claim before the learned arbitrators, what is awarded to the appellant is the principal sum of INR 2,01,42,827/- towards price adjustment payable under sub-clause 70.3 of the contract, for the work done under the contract from September 2010 to May 2014, as well as interest at the rate of 10%, compounded monthly from the due date of payment to the date of the award, i.e., 02.05.2016, plus future interest at the rate of 12% per annum (simple) till the date of payment. [Paras 47-49] [604-G-H; 605-A-H; 606-A-F]

Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 ; ONGC Ltd. v. Western Geco

International Ltd. (2014) 9 SCC 263 : [2014] 12 SCR 1 – explained.

Board of Control for Cricket in India v. Kochi Cricket (P.) Ltd. and Ors., (2018) 6 SCC 287 : [2018] 2 SCR 829 ; Sedco Forex International Drill, Inc. and Ors. v. Commissioner of Income Tax, Dehradun and Anr., (2005) 12 SCC 717 : [2005] 5 Suppl. SCR 302 ; State of Goa v. Praveen Enterprises, (2012) 12 SCC 581 : [2011] 10 SCR 1026 – relied on.

ONGC Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705 : [2003]

3 SCR 691 ; Renusagar Power Co. Ltd. v. General Electric Co. 1994 Supp (1) SCC 644 : [1993] 3 Suppl. SCR 22 ; DDA v. R.S. Sharma and Co. (2008) 13 SCC

80 : [2008] 12 SCR 785 ; Minmetals Germany GmbH v. Ferco Steel Ltd., [1999] CLC 647 ; CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK, [2011] SGCA 33 ; Parsons & Whittemore

Overseas Co., Inc., v. Societe Generale De L’industrie HIGHWAYS AUTH. OF INDIA (NHAI)

Du Papier (RAKTA) 508 F.2d 969 ; Lesotho Highlands Development Authority v. Impregilo SpA and Ors. [2005]

3 All ER 789 [HL] ; Patrick Ryan & Ann Ryan and Kevin O’Leary (Clonmel) Ltd. & General Motors, [2018] IEHC 660 ; Dongwoo Mann+hummel Co. Ltd. v.

Mann+hummel Gmbh, [2008] SGHC 67 ; BAZ v. BBA

and Ors., [2018] SGHC 275 – referred to.

Redfern and Hunter on International Arbitration by Nigel Blackaby, Constantine Partasides, Alan

Redfern, and Martin Hunter (Oxford University

Press, Fifth Ed., 2009) ; International Commercial Arbitration by Gary B. Born (Wolters Kluwer, Second Ed., 2014) ; UNCITRAL Secretariat Guide on

the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (2016 Ed.) ; UNCITRAL Model Law on International

Commercial Arbitration ; New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – Commentary, edited by Dr. Reinmar Wolff (C.H. Beck, Hart, Nomos Publishing, 2012) ;

Fouchard, Gaillard, Goldman on International

Commercial Arbitration (Kluwer Law International, 1999) – referred to.