The Republic of India v CC/Devas (Mauritius) Ltd (in administration) & Ors [2025] EWHC 1738 (Comm)

[2025] EWHC 1738 (Comm)Case No CL-2025-000046
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 9 July 2025
Before
Sir Nigel TeareIN AN ARBITRATION CLAIM
Between
THE REPUBLIC OF INDIAClaimant(1) CC/DEVAS (MAURITIUS) LTDDefendants(2) TELCOM DEVAS MAURITIUS LIMITEDInterveners(3) DEVAS EMPLOYEES MAURITIUS PRIVATE LIMITEDDefendantrepresented by Mishcon de Reya LLP on the instructions of the AdministratorDefendant(1) CC/DEVAS (MAURITIUS) LTDIntervener(2) TELCOM DEVAS MAURITIUS LIMITEDIntervener(3) DEVAS EMPLOYEES MAURITIUS PRIVATE LIMITEDIntervenerrepresented by Gibson Dunn & Crutcher LLP on the instructions of the directors and shareholders of the said companiesIntervener
Ricky Diwan KC and Georgina Peters (instructed by Gibson Dunn & Crutcher LLP) for IntervenersAndrew Green KC and Peter Head (instructed by PCB Byrne LLP) for ClaimantTimothy Otty KC, Shane Sibbel and Madelaine Clifford (instructed by Mishcon de Reya LLP for DefendantsHearing Hearing date: 2 July 2025
Approved Judgment.............................This judgment was handed down by the judge remotely by circulation to the parties’ representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 09 July 2025 at 10:30am.

Sir Nigel Teare :

[1]This is an application for the joinder of parties to an Arbitration Claim and for the hearing of Preliminary Issues in the Arbitration Claim.[2]The Claimant in the Arbitration Claim is the Republic of India (“India”). India is the Respondent to an Arbitration commenced against it in 2022 by three companies registered in Mauritius (“the Mauritian Companies”). In 2023 the court in Mauritius ordered that the Mauritian Companies be placed in administration. That gave rise to a dispute in the Arbitration as to who is entitled to represent the Mauritian Companies in the Arbitration. The Tribunal has decided that the law firm Gibson Dunn & Crutcher (who take their instructions from the directors and shareholders of the Mauritian Companies) is entitled to represent the Mauritian Companies in the Arbitration, not the Administrator.[3]India has issued an Arbitration Claim in which it seeks determination of a Question of Law pursuant to section 45 of the Arbitration Act 1996. The Question of Law is:
“Is the Tribunal seated in England required to apply Mauritian law (and only Mauritian law) (being the law of the place of incorporation of the Defendants) to determine who has authority to instruct lawyers to act on the Defendants’ behalf in the Arbitration?India served the Application Claim on the Administrator of the Mauritian Companies who has consented to the determination of the question of law.”
[4]I infer that both India and the Administrator are not content with the decision of the Tribunal, though their counsel submitted that there was no challenge to the decision of the Tribunal. By contrast the directors and shareholders of the Mauritian Companies who have instructed Gibson Dunn & Crutcher are content with the decision of the Tribunal and wish to be heard on the Arbitration Claim. They say that the Arbitration Claim is “fundamentally misconceived” and should be dismissed. For that reason they have sought to intervene in the Arbitration Claim. There is no dispute that they may be permitted to do so but there is a dispute as to how they should be described. It is tempting to describe that dispute as technical and arid but underlying it lies a concern that whoever ultimately succeeds in the Arbitration Claim should be entitled to claim costs from the successful party. That is the first dispute that I must resolve. The second dispute which I must resolve is whether, as contended by the directors and shareholders of the Mauritian Companies, but resisted by India and the Administrator, there should be a determination of five Preliminary Issues before the Question of Law is determined. Those issues arise in the context of the case of the directors and shareholders that the Arbitration Claim is fundamentally misconceived.

The underlying dispute and the background to the Arbitration Claim

[5]Each of the Mauritian Companies is a shareholder in an Indian company, Devas Multimedia Private Limited (“Devas”).[6]Devas was the counterparty to a contract dated 28 January 2005 with Antrix Corporation Limited (“Antrix”) (the commercial arm of the Indian Space Research Organisation) for the lease of radio spectrum on an “S-Band” satellite (the “Devas-Antrix Agreement”).The Agreement provided for Devas to lease satellite capacity from Antrix for the purpose of Devas offering certain digital multimedia broadcast services (“Devas Services” as defined therein).The Devas-Antrix Agreement was terminated by Antrix on 25 February 2011 on force majeure grounds.[7]In June 2011, following the termination of the Devas-Antrix Agreement, Devas commenced an ICC arbitration against Antrix seeking damages for lost profits arising out of the wrongful repudiation of the Agreement (the “ICC Arbitration”). That arbitration was seated in India. It culminated in an award of US$562.5 million being made in favour of Devas on 14 September 2015 (the “ICC Award”).[8]The Mauritian Companies, as shareholders in Devas, also commenced an arbitration against India on the basis of the India-Mauritius BIT, seated in The Hague, in connection with the termination of the Devas-Antrix Agreement (the “Initial BIT Arbitration”). That culminated in two further awards being made directly against India:(i) on 25 July 2016, an award on jurisdiction and the merits, finding that India had breached the BIT as alleged;and(ii) on 13 October 2020, an award on damages, ordering India to pay the Mauritian Companies US$111 million plus interest and costs (the BIT-1 Awards).[9]Antrix applied to the Indian courts to wind up Devas for fraud under s.271(c) of the Indian Companies Act 2013.[10]On 25 May 2021 Devas was placed into final liquidation by the National Company Law Tribunal. Devas appealed against that order to(i) the National Company Law Appellate Tribunal, which appeal was dismissed on 8 September 2021,and(ii) ultimately, to the Indian Supreme Court, which further appeal was dismissed on 17 January 2022 (the “Indian SC Judgment”). I have been told that the Supreme Court found that the Mauritian Companies were implicated in the fraud.[11]In parallel, Antrix commenced proceedings before the Delhi High Court to set aside the ICC Award under s.34 of the Indian Arbitration and Conciliation Act 1996 Act for fraud and/or for public policy reasons. Those proceedings were successful and culminated in the judgment of a Single Judge setting aside the Award on 29 August 2022. An appeal against that judgment was pursued and failed.[12]The Mauritian Companies, as represented by Gibson Dunn & Crutcher, describe the above proceedings in India as “attempts to unwind the above awards”. They say that the allegations of fraud “were notraised in the ICC Arbitration or the BIT-1 Arbitration but constructed responsively in liquidation proceedings brought against Devas in India by Antrix, acting on the instructions of India”. They say that the allegations were “endorsed by the Indian Supreme Court in a judgment dated 17 January 2022 and then relied upon by the Delhi High Court that set aside the ICC Award on the basis of the ISCJ’s findings”. They say this was “despite the fact that the alleged illegality determinations(i) were premised on prima facie findings without a trial, document production or cross-examination, and(ii) amounted to no more than an acceptance of the case advanced by Antrix.” I have been informed that the Dutch, Swiss, Canadian and Singapore courts which have considered the allegations of fraud have rejected them in the context of the ICC Award and the BIT-1 Awards and have said that the Indian Liquidation Proceedings violated fundamental principles of due process.[13]On 2 February 2022, following the Indian SC Judgment, the Mauritian Companies commenced the Arbitration – the subject of these proceedings – alleging that the liquidation of Devas was a further breach of the India-Mauritius BIT.[14]The Arbitration is seated in London and is taking place pursuant to the 1976 UNCITRAL Arbitration Rules as specified by Article 8(2)(d) of the BIT (the BIT-2 Arbitration). The BIT-2 Arbitration is progressing before an arbitral tribunal comprising Prof. Eduardo Zuleta, Prof. Dr. Stephan Schill and Justice Goda Raghuram (the Tribunal).[15]On 12 January 2023, India sought and obtained from the Supreme Court of Mauritius (Commercial Division) an ex parte interim injunction restraining and prohibiting the Mauritian Companies from pursuing the Arbitration (the “Anti-Arbitration Injunction”).The Mauritian Companies, as represented by Gibson Dunn & Crutcher, consider that the Anti-Arbitration Injunction was not obtained in a manner compliant with Mauritian law,nor with international law.[16]By an Interim Award dated 10 March 2023, the Arbitral Tribunal noted that the Parties had a duty to refrain from taking any action or measure that may affect the procedural integrity of the arbitration, aggravate or extend the dispute, or that may interfere with the Tribunal’s mandate to adjudicate international justice, under the Treaty, in the arbitration. The Tribunal held, by a majority, that the Respondent to the Arbitration, India, had breached that duty by pursuing and enforcing the Anti-Arbitration Injunction and ordered the Respondent to cease, during the pendency of this arbitration, its breaches of that duty; see the Decision at paragraph 98 of the Interim Award. The decision was supported by extensive reasoning which spanned paragraphs 40-97 of the Interim Award.[17]On 28 April 2023, the Registrar (in Mauritius) applied under ss.215(9)(a) and (e) of the Mauritian Insolvency Act 2009 (“IA 2009”) to place each of the Mauritian Companies into administration.The Supreme Court of Mauritius (Commercial/Bankruptcy Division) granted the application and appointed the Administrator by the Administration Orders. I have been referred to the Administration Orders. They appear to have been made ex parte.[18]The Administrator was appointed “for the purposes of(i) taking control of the company’s business property and affairs and(ii) performing any function and exercising any power, that the company or any of its officers could perform or exercise if the company were not in administration, including but not limited to representing the company in all cases and/or proceedings, whether local or abroad”. I have been informed that as a matter of Mauritian law the Administrator has sole authority to act on behalf of the Mauritian Companies and to the exclusion of their directors.[19]The Mauritian Companies, as represented by Gibson Dunn & Crutcher who take their instructions from the directors and shareholders of the Mauritian Companies, have sought to appeal the Administration Orders and to stay them in the interim. That approach has, to date, not been successful:(i) On 5 May 2023, they applied for and obtained from the Supreme Court of Mauritius an ex parte interim order restraining the Administrator from acting as administrator for the Mauritian Companies.That order was itself stayed on 11 May 2023.(ii) On 12 May 2023, they lodged appeals against the Administration Orders.5On 15 May 2023, they applied for (and obtained on 21 August 2023) a stay of the Administration Orders pending the determination of their appeals.(iii) On 6 February 2024, the Court of Civil Appeal dismissed those appeals (“the 6 February 2024 Judgment”).(iv) On 21 February 2024, they submitted an application to the Supreme Court of Mauritius seeking leave to appeal the Administration Orders to the Judicial Committee of the Privy Council (“JCPC”) and to stay them in the interim. The application was dismissed on jurisdictional grounds on 23 January 2025. A stay was also refused.(v) Thereafter they filed an application with the JCPC seeking leave to appeal the 6 February 2024 Judgment and a stay of the Administration Orders in the interim. No decision has yet been given by the JCPC.

The Arbitration

[20]I have mentioned above that the Arbitration which is the subject matter of this Arbitration Claim was commenced on 2 February 2022 by the Mauritian Companies represented by Gibson Dunn & Crutcher.[21]By the Tribunal’s Terms of Appointment dated 6 September 2022 and signed by the Tribunal and by the Parties, the Tribunal settled the scope of the reference and other procedural matters. It identified (at paragraph 1) the Parties to the BIT-2 Arbitration, the representatives of the Parties and their legal representatives. In the case of the Mauritian Companies their representatives were identified (by name) as the US directors of the Mauritian Companies and their legal representatives were identified as being Gibson Dunn. Paragraph 4 of the same Terms of Appointment provided for the Tribunal to withhold approval of any intended change or addition to representation. Paragraph 4.2 provided that the Tribunal may exclude the participation of a representative “where their participation might create a conflict of interest or for other compelling reason”.[22]On the basis of the Administration Orders, the Administrator sought to terminate the mandate of Gibson Dunn & Crutcher as the legal representative of the Mauritian Companies in the BIT-2 Arbitration,and requested the Tribunal to suspend the BIT-2 Arbitration, contending that Gibson Dunn had no authority to act on behalf of the Mauritian Companies. I have been told that this led to extensive correspondence and written and oral submissions before the Tribunal on the disputed issue of whether Gibson Dunn & Crutcher was entitled to continue to act on behalf of the Mauritian Companies or whether the Administrator was to be recognised as their representative pursuant to the Administration Orders.[23]By Procedural Order No.6 dated 3 January 2025 (“PO6”) the Tribunal ruled on that issue. The Tribunal, by a majority,(i) declined to recognise the authority of the Administrator for the purposes of the BIT-2 Arbitration;(ii) declined to recognise his purported termination of the powers of attorney given to Gibson Dunn & Crutcher to represent the Mauritian Companies in the BIT-2 Arbitration; and(iii) continued to recognise that Gibson Dunn & Crutcher remained the authorised representative of the Mauritian Companies in the BIT-2 Arbitration. The reasoning of the majority was extensive. It spans paragraphs 139-227 of PO6.[24]In the light of certain of the submissions made to me on this hearing it is necessary to note some parts of the Tribunal’s reasoning.[25]The Tribunal considered the “applicable rules and standards” at paragraphs 139- 143. At paragraph 139 the Tribunal noted that its authority and mandate were derived from the Treaty, namely, the Agreement dated 4 September 1998 between Mauritius and India for the protection of investments. The Tribunal was therefore bound to apply international law and the 1976 UNCITRAL Rules. At paragraph 140 the Tribunal noted that, pursuant to its Terms of Reference and article 15(1) of the UNCITRAL Rules, in the absence of an agreement or specific provision in the UNCITRAL Rules, the Tribunal “shall apply the rules it deems appropriate in the circumstances”. Thus the Tribunal appeared to have a discretion as to the rules which it applied (in the absence of an agreement or specific provision). At paragraph 142 the Tribunal noted that because the Tribunal was seated in London the Tribunal was also bound to consider the provisions of the Arbitration Act 1996, in particular, sections 68, 33 and 34. The Tribunal concluded in paragraph 143 as follows:
“Consequently, the Tribunal must decide the issue of Claimants’ representation by considering international law, the 1976 UNCITRAL Rules, the Terms of Appointment, and the EAA. The question for this Tribunal is therefore not restricted to determining whether under the law of Mauritius, which is the place of incorporation of Claimants, Mr. Thacoor is the representative or the administrator of Claimants. This is the perspective of, and the law applied by, the courts of Mauritius. The issue before this Tribunal is whether under international law, the 1976 UNCITRAL Rules, the Terms of Appointment, and the EAA this Tribunal must recognize, for purposes of this arbitration, the decision of Mauritian courts pursuant to which Mr. Thacoor has been appointed as representative of Claimants. In its decision the Tribunal may not ignore the decisions of the courts of Mauritius, but is not bound to blindly or automatically apply and recognize such decisions without considering the laws and rules that govern this arbitration.”
[26]At paragraphs 144-148 the Tribunal considered its power under international law and concluded at paragraph 148 as follows:
“Therefore, in order to decide whether Mr. Thacoor—and the counsel appointed by him—can be recognized as the representatives of Claimants in this arbitration, the Tribunal must consider, on the one hand, the status of the proceedings in Mauritius and, on the other hand, whether the recognition of Mr. Thacoor and the counsel appointed by him in this arbitration would affect the fairness and integrity of the proceedings or whether there are “other compelling reasons” to support their exclusion. As part of such “other compelling reasons,” or as a stand-alone basis, the Tribunal must also consider the right of Claimants to have a full opportunity to present their case in conditions equal to those of Respondent.”
[27]At paragraphs 149-164 the Tribunal considered its powers under English law. The Tribunal noted at paragraph 150 that:
“neither in the 1976 UNCITRAL Rules nor in the Terms of Appointment or the EAA is there an express renvoi to the laws of incorporation of a Party to determine who can represent it in the arbitration, nor is there a clear duty of the Tribunal to apply or recognize the laws of the place of incorporation and decisions made by the courts of that place.”
[28]I understand that that relates to what was stated in paragraph 140 of PO6 (see above) such that the Tribunal had a discretion as to the rules it deemed appropriate to apply. The Tribunal considered that the English conflict of law rules could provide “valuable guidance for the Tribunal”; see paragraph 151. The Tribunal went on to consider English conflict of law rules which addressed the impact of foreign insolvency proceedings and recognition of decisions of foreign courts by English courts, in the instant case the Administration Orders. The Tribunal did so between paragraphs 152 and 163 and noted in particular that compliance with English public policy was relevant. That included “fundamental rule of law demands” and natural justice. At paragraph 164 the Tribunal concluded as follows: “In sum, to recognize the Appointment Orders and, consequently, Mr. Thacoor as Claimants’ representative in the course of this international arbitration seated in London, the Tribunal should verify that none of the above-referenced concerns are present in this case.[29]At paragraphs 165-211 the Tribunal applied the applicable rules and standards to the facts of the case. At paragraph 165 the Tribunal stated its conclusion in these terms:
“Considering the standards of international law, the 1976 UNICTRAL Rules, the Terms of Appointment, the EAA, and the English conflict-of-laws rules described in the previous section, the Tribunal finds, for the exclusive purposes of this arbitration, and with the information available at this stage, that it cannot recognize Mr. Thacoor as the representative of Claimants as per the Appointment Orders.”
[30]The Tribunal’s first reason for so concluding was that the Administration Orders were in issue in Mauritius and that a final decision may take 2-3 years; see paragraph 169. However, the tribunal went on to say in paragraph 170 that the Administration Orders and Mr. Thacoor’s conduct raised fundamental rule of law concerns which would impact not only on the recognition of those orders “when and if they become final” but also affect “the Claimants’ rights under the Treaty to have access to arbitration” and to have the Tribunal adjudicate “the Claimants’ claim on the merits”. The Tribunal said at paragraph 171 that these rule of law concerns constituted “compelling reasons” in the sense of section 4(2) of the Terms of Appointment to continue to recognise Gibson Dunn and Crutcher as the Claimant’s representative for the purposes of the Arbitration.[31]The Tribunal then explained what those concerns were.[32]The procedure by which the Administration Orders were issued is discussed between paragraphs 172 and 191. At paragraph 192-3 the Tribunal concluded as follows:
“192. In sum, the Tribunal has serious concerns that the Appointment Orders that are being litigated in Mauritius contravene basic notions of due process under international law and English notions of substantive justice, such as the right to be heard and present one’s case and the right to receive a reasoned decision, and hence “fall short of the guarantee to a fair trial” under English law and international law standards. 193. These are additional reasons for the Tribunal to be reluctant at this stage to recognize the appointment of Mr. Thacoor in this arbitration based on the Appointment Orders and to accept all acts Mr. Thacoor has taken in the name of Claimants. This includes terminating the power of attorney of Gibson Dunn that validly had been given to them at the start of the present arbitration, which, consequently, continues to be valid.”
[33]Mr. Thacoor’s conduct in the Arbitration is discussed between paragraphs 194 and 210. At paragraph 211 the Tribunal concluded as follows:
“In sum, Mr. Thacoor’s conduct with regard to this proceeding confirms that the validity and finality of the Administrative Orders remains in dispute. Likewise, it confirms that he would have liked this Tribunal to change course depending on the stage of the ongoing litigation in Mauritius. His appointment as administrator of Claimants, still in dispute, cannot be viewed as pursuing the interest of Claimants to pursue their claims in this arbitration and have them adjudicated under the Treaty.”
[34]In stating its conclusion on the issue of representation the Tribunal said this:
“224. With the present decision, the Tribunal declines to recognize Mr. Thacoor’s appointment as representative of Claimants in the present arbitration because the validity and finality of the Appointment Orders are still in dispute in the courts of Mauritius. The Tribunal must add that even if they were final and binding, the proceedings in Mauritius related to the Appointment Orders, so far, raise serious concerns under international standards of due process and the rule of law. 225. There is a possibility, of course, once all proceedings in Mauritius have come to an end, and the matter is final and binding also from the perspective of the Mauritian order, and in case the Tribunal were to reconfirm its position on the issue of representation in the present decision in the event of a change in the status quo, that this may result in a difference between how the representation of Claimants is dealt with from the perspective of Mauritian courts and how it is dealt with by other decision-making bodies that are not under the sovereignty of Mauritius and jurisdiction of Mauritian, such as this Tribunal. 226. However, on the one hand, the Tribunal cannot simply suspend the arbitration for years waiting for a final and binding decision by the Mauritian courts. And, on the other hand, any such differences in outcome are nothing remarkable, but an every-day occurrence in transborder affairs, whether commercial or otherwise, and the conflicts-of-law situations they raise. It is a fact of the global legal reality that different legal orders look at the same issue differently and at times may reach conflicting positions. Against this background, the decision not to recognize Mr. Thacoor’s appointment at this stage is merely a consequence of a world in which different legal orders stand next to each other without hierarchy between them.”

The Arbitration Claim and the Application Notice

[35]By letter dated 5 February 2025 Mishcon de Reya informed PCB Byrne, the solicitors acting for India, that they had been retained by the Administrator. Mishcon de Reya noted that India had sought the agreement of the Administrator to an application under section 45(2)(a) of the Arbitration Act 1996 and to a stay of the Arbitration pending determination of the application pursuant to section 45(2)(a). Mishcon de Reya stated that the objective of the Administrator was to ensure that the Tribunal accepted the Arbitrator’s authority to appoint representatives to appear on behalf of the Mauritian Companies and stated that the Administrator was willing to agree for the purposes of sections 45(2)(a) and 45(4) provided that the question of law was phrased in a particular was (which it subsequently was).[36]The Claimant’s Arbitration Claim was issued on 6 February 2025. The Claimant sought an order pursuant to section 45 of the Arbitration Act 1996 determining a question of law that has arisen in the arbitration between the parties to which this arbitration claim relates, namely: is the Tribunal seated in England required to apply Mauritian law (and only Mauritian law) (being the law of the place of incorporation of the Defendants) to determine who has authority to instruct lawyers to act on the Defendants’ behalf in the Arbitration?[37]In order to make an application under section 45 the Claimant must show that it is made with the agreement of the other party to the dispute. The Claimant says that that condition is satisfied because the Defendants, the Mauritian Companies represented by the Administrator, have agreed.[38]On the same day, 6 February 2025, the Claimant (who is the Respondent to the arbitration) applied to the Tribunal for an order staying the Arbitration pending the determination of the application made pursuant to section 45 of the Arbitration Act 1996.[39]By an application notice dated 28 February 2025 the Mauritian Companies, as represented by Gibson Dunn & Crutcher, sought from this court an order adding them as a party to the Claimant’s Arbitration Claim (“the Joinder Application”). They said in their notice that the Arbitration Claim was defective for several reasons but in particular that it was a “disguised and impermissible appeal” against the decision of the Tribunal in PO6 and that section 45 cannot be used to determine issues already determined by the Tribunal. Joinder was necessary so that the court could resolve those and other issues.[40]On 22 March 2025 the Tribunal issued Procedural Order No.7 (“PO7”) in which it considered and rejected the application for a stay which had been issued on 6 February 2025. The Tribunal noted that section 45(4) of the Arbitration Act 1996 provided that, “unless otherwise agreed by the parties” the Tribunal may continue the arbitration while an application under section 45 is pending. The Tribunal stated that the reference to “the parties” in section 45(4) refers to the parties to the arbitration proceedings. The Tribunal then referred to PO6 and stated that the Administrator was neither a party to the Arbitration nor a representative of the Claimants according to the findings and the decision in PO6. The Tribunal further stated that “whatever the agreement reached between the Administrator and his counsel and India, it is not, for the purposes of the present arbitration proceedings, an agreement of the parties to this arbitration for the purposes of Section 45(4) of the Arbitration Act.” The Tribunal therefore dismissed the stay application; see paragraphs 18-24 of PO7.[41]On the same day, 22 March 2025, the Chairman of the Tribunal informed Mishcon de Reya (who had informed the Tribunal that they had been instructed by the Administrator) of PO6 and advised that firm that the Administrator was “neither the representative of Claimants nor a party in the arbitration and therefore, that the Tribunal could not accept the intervention of [the Administrator] either directly or through counsel, and that the Tribunal would not copy [the Administrator] or his counsel in further correspondence related to this arbitration”. It is on account of PO6 and PO7 that the Mauritian Companies as represented by Gibson Dunn & Crutcher have described the Administrator as a stranger to the BIT-2 Arbitration.

The Joinder Application

[42]Counsel for the Mauritian Companies represented by Gibson Dunn & Crutcher submitted that the Mauritian Companies represented by the Administrator be removed from the Arbitration Claim and substituted as Defendants because, as determined by the Tribunal in PO6, the Administrator has no authority to act in the arbitration for the Mauritian Companies. This reasoning follows the decision and reasoning of the Tribunal in PO7 when the Tribunal stated that “the parties” in section 45(4) must be the parties to the arbitration. The argument is set out with clarity and cogency at paragraphs 22-34 of counsel’s Skeleton. For the same reason it was submitted that the Administrator cannot consent to the section 45 application. Only the Interveners can do that; and they do not consent. The section 45 application should therefore be dismissed.[43]Counsel for India and the Mauritian Companies represented by the Administrator objected that no such relief had been sought in the Application Notice and so they had not come to court to deal with what they termed a “strike out” application. Whatever the merits of the case advanced by counsel for the Mauritian Companies represented by Gibson Dunn & Crutcher I felt bound to accede to the submission that it was not open to the court to deal with that case on this application. It would not be fair to do so.[44]That being so the court must deal with the application to join the Mauritian Companies represented by Gibson Dunn & Crutcher as interveners.[45]The response of India to the Joinder Application is that it is misconceived because the Mauritian Companies are already party to the proceedings and so there is no “new party” to join (see the Claimant’s Skeleton Argument at paragraphs 28-33). The response of the Administrator is to the same effect (see his Skeleton Argument at paragraphs 28-30). However, there does not appear to be any dispute that “Gibson Dunn” or the “Gibson Dunn Parties” be permitted to file evidence and make submissions in the Arbitration Claim; see paragraph 4 of India’s Skeleton and paragraph 9 of the Administrator’s Skeleton Argument. That being so the dispute about joinder is not a real dispute of substance but is simply a disagreement as to how the proposed interveners should be named on the record of the proceedings. During the course of the hearing it became apparent that the concern of the Mauritian Companies as represented by Gibson Dunn & Crutcher was that they should be on the record so that, if they won, they would have the necessary status to apply for costs. The Mauritian Companies represented by the Administrator also had a concern about costs. They wanted it recorded that the natural persons instructing Gibson Dunn & Crutcher on behalf of the Mauritian Companies be identified so that they could claim costs against them. Counsel for the Mauritian Companies represented by Gibson Dunn & Crutcher did not have any issue with this so long as there was “equality” in the description of the Defendants and Interveners.[46]In those circumstances I consider that it is appropriate to add the Mauritian Companies “represented by Gibson Dunn & Crutcher LLP on the instructions of the directors and shareholders of the said companies” as Interveners. In a real sense they are a new party because their interests are quite different from those of the Defendants. Conversely, and bearing in mind the need for “equality”, the Defendants should be described as the Mauritian Companies (in Administration) “represented by Mishcon de Reya LLP on the instructions of the Administrator.” Counsel for the Interveners objected to the use of the term “in Administration” because it has been determined by the Tribunal that the Administration should not be recognised for the purposes of the Arbitration. But since counsel wants the Administrator mentioned in the title of the Arbitration Claim there can be no harm in describing the Defendants as being in Administration. The description of the Defendants is merely a matter of nomenclature to identify one of the two parties claiming the right to act on behalf of the Mauritian Companies. It is not intended to prejudice any argument or person. The title to this judgment therefore reflects what I have decided on the Joinder Application.

The application for the determination of Preliminary Issues

[47]It is first necessary to note the ambit of the Question of Law which India and the Administrator wish the court to determine. It is described as follows:
“Is the Tribunal seated in England required to apply Mauritian law (and only Mauritian law) (being the law of the place of incorporation of the Defendants) to determine who has authority to instruct lawyers to act on the Defendants’ behalf in the Arbitration?”
[48]This appears to be a question which has already been determined by the Tribunal at paragraphs 139-143. The Tribunal expressly determined in paragraph 143 that it was not restricted to determining whether under the law of Mauritius the Administrator is the representative of the Mauritian Companies. It would therefore appear that India and the Tribunal wish to challenge that determination.[49]The Interveners consider that in those circumstances the application which has been made pursuant to section 45 of the Arbitration Act 1996 is fundamentally misconceived. The Intervener’s five preliminary issues go to that contention.[50]The suggested preliminary issues are:(1) Does the Court have jurisdiction and/or power to hear the Section 45 Application and/or are the requirements of Section 45 not satisfied, in circumstances where the Interveners have not given their consent to the Section 45 Application within the meaning of s.45(2)(a) (and where the Arbitral Tribunal has not given its permission pursuant to s.45(2)(b)) ?(2) Is the Section 45 Application an impermissible challenge to the Arbitral Tribunal’s Procedural Order no.6 dated 3 January 2025 in respect of which the \court has no jurisdiction and/or power under Section 45?(3) Is section 45 of the Arbitration Act 1996 concerned only with prospective questions of English law arising in an arbitration so that the Court has no jurisdiction and/or power to revisit the question of law which has already been decided by the Arbitral Tribunal with binding effect on the parties pursuant to PO6?(4) Is section 45 of the Arbitration Act 1996 ousted because the parties have not agreed to the application of substantive English law (or English conflict of laws) but have instead agreed to the application of international law as the substantive governing law and agreed to the Tribunal having discretion as to the conflict of law rules to be applied pursuant to s.46(3) and Article 33 of the UNCITRAL Rules of 1976 so that the question raised by the Section 45 Application does not fall within its scope and the Court has no jurisdiction and/or power to address it?(5) Is the Section 45 Application abusive so that the Court should (if its jurisdiction and/or power is engaged under Section 45 of the 1996 Act) exercise its discretion (under section 45(1) of the 1996 Act) not to entertain the s.45 Application, or otherwise to strike it out?[51]I have been referred to the well-known authorities as to when the determination of preliminary issues may be appropriate and to the danger in acceding to beguiling applications for the determination of preliminary issues; see the Claimant’s Skeleton Argument at paragraphs 36-38 and the Defendants’ Skeleton Argument at paragraphs 32-34. I have the authorities and warnings well in mind.

Issue 3

[52]I prefer to start with Issue 3 since it gives rise to a question of statutory construction of section 45, the section on which India and the Administrator rely.[53]Section 45 must be construed in the context of the Arbitration Act as a whole, and in particular, in the context of section 1 (General Principles), section 34 (Procedural Matters) and section 69 (Appeal on a Point of Law arising out of an Award). The essential question raised is whether, when the Arbitral Tribunal has decided a matter, in this case, a dispute as to who is entitled to represent a party to the Arbitration, and there is no opportunity to seek leave to appeal on a point of law pursuant to section 69, a party may apply to the Court pursuant to section 45 for the determination of a question of law which arose in the course of the Tribunal’s decision and was determined by the Tribunal. The Interveners say that the answer to that question is No. India and the Administrator say that the answer is Yes. In my judgment this is a short point of statutory construction which cannot take long to argue.[54]Counsel for the Administrator submitted that even if section 45 applies only to prospective questions of law the present case involves a prospective question because the Tribunal may revisit the authority question in the future. But the Interveners would say that even if the question were revisited the Tribunal has already decided the question of law and so the court is being asked to review a decision already made by the Tribunal. The resolution of that dispute cannot add much time to the debate as to the true construction of section 45.

Issue 2

[55]Issue 2 is closely related to Issue 3. It raises the question whether the court can review a procedural decision of the Arbitral Tribunal. The conventional view on that question is that is cannot; see The Republic of Uganda v Rift Valley Railways (Uganda) Limited and others [2021] EWHC 970 (Comm) at paragraphs 44-45 per Butcher J. If there is to be a challenge to that conventional view the argument is unlikely to be long. Counsel for the Administrator made reference to just one authority which he suggested supported a challenge to the contrary view, namely, The Vasso [1983] I WLR 838 per Lloyd J.[56]The further argument advanced against Issue 2 is that it proceeds upon the assumption that India’s Question of Law is a challenge to PO6. India and the Administrator say that it is not. “Instead, the Section 45 Application seeks to have determined a point of English law (namely the correct approach in the case of an English seated arbitration to the question of who has authority to represent a foreign corporate claimant which is subject to an insolvency process in its country of incorporation). The effect of answering that question (if it were to be answered in the way that India suggests is correct) would not be to reverse PO6: however what it will do is to inform the Tribunal of the correct approach as a matter of English law (being the law of the seat) as and when the Tribunal is invited to revisit the question as to who may represent the Companies in the Arbitration. The Tribunal will likely be invited to revisit that question in order to avoid or reduce the scope of any challenge that might be made to the Court in due course under section 68(2)(c) of the 1996 Act in respect of any Award.”[57]However, the Interveners say that India and the Administrator are in fact seeking a different answer to the question of the relevant law than that given by the Tribunal. If so then India and the Administrator, whether or not they are intending to invite the Tribunal to revisit its decision in the future, are seeking to have the court review a decision made by the Tribunal in its determination of a procedural matter. This is a short point as to how one should describe the exercise upon which India and the Administrator are engaged. It cannot take long to argue that issue.

Issue 1

[58]If the Interveners are correct on Issues 1 and/or 2 then the Tribunal’s decision in PO6 cannot be challenged. It binds India and the Administrator. As a result India and the Administrator cannot say that the parties to the Arbitration have agreed that the Question of Law should be decided by the court.[59]Thus Issue 1 gives rise to very little further argument. It can be dealt with very speedily, just as the Tribunal dealt with the application for a stay pursuant to section 45(4) in PO7.[60]However, India and the Administrator argue that Issue 1 encompasses all the issues of public policy discussed by the Tribunal and so would take a long time to debate. I disagree. The issues of public policy would not be gone into because they have all been addressed by the Tribunal. What would be “centre stage” (the phrase used by counsel for the Administrator) would be the Tribunal’s conclusion as to who represented the Mauritian Companies for the purposes of the Arbitration. If that cannot be challenged (because the Interveners are right on Issues 3 and/or 2) then little further argument is required to answer Issue 1 in the negative. Counsel for the Interveners said that this could be made even clearer by amending Issue 1 as follows:
“Does the Court have jurisdiction and/or power to hear the Section 45 Application and/or are the requirements of Section 45 not satisfied, in circumstances where (a) the Interveners have not given their consent to the Section 45 Application within the meaning of s.45(2)(a) (and where the Arbitral Tribunal has not given its permission pursuant to s.45(2)(b)) and (b) by the terms of PO6 and PO7 the consent of the Interveners is required for the purposes of section 45(2)(a)?”
[61]I agree that that would put the scope of Issue 1 beyond doubt.

Issue 4

[62]This issue raises a further and distinct reason as to why section 45 is inapplicable in the present case. It is said that, although the law of the seat is English, the governing law of the arbitration is not English (or English conflicts of law) but international law and moreover that the UNCITRAL Rules confer a discretion on the Tribunal as to the rules which it is appropriate to apply; see paragraphs 139-140 of PO6. In such circumstances it is said that section 45 cannot apply because that only applies to questions of English law; see section 82. This is another short question of construction, though different from Issues 3, 2 and 1.

Issue 5

[63]This question only arises if section 45 is properly engaged (ie if the Interveners fail on Issues 1-4). That suggests that it is not a suitable preliminary issue. The time for the exercise of the court’s discretion would arise as and when the court addresses the Question of Law which India seeks to have determined. During the course of the hearing counsel for the Interveners accepted that Issue 5 was not an appropriate preliminary issue.[64]Counsel has submitted that the suggested preliminary issues 1-4 could be fairly dealt with in a day’s hearing (with the court having read into the matter before). Counsel for India and the Administrator suggested longer would be required. However, it seems to me that Issues 1-4 raise quite short points and ought to be capable of being argued well within a day.[65]If Issues 1-3 or Issue 4 are decided in favour of the Interveners that would determine the Arbitration Claim. There would be no need to consider the Question of Law.[66]By contrast India says that Issues 1-4 are simply “arguments that will need to be determined at the final hearing of the Section 45 Application” (see paragraph 41 of India’s Skeleton Argument) and that the hearing of all issues will take 3-4 days (see paragraph 73 of India’s Skeleton Argument). There must also be factored in the possibility of an appeal which militates against the determination of preliminary issues (see paragraphs 68-71 of the India’s Skeleton Argument). This being an arbitration claim there will be no saving in terms of disclosure or witness evidence (see paragraph 72 of the India’s Skeleton Argument). In the result it is said that the balance comes down in favour of a single hearing of all issues.[67]The Administrator says much the same. Hearing all issues will require a hearing of 3-4 days (see paragraph 56 of his Skeleton Argument) whereas a hearing determining preliminary issues followed by, if India and the Administrator succeed on the preliminary issues, a further hearing to determine the Question of Law, will lead to an increase in costs (see paragraph 55 of the Skeleton Argument).[68]I am not sure how or why India and the Administrator estimate 3-4 days for a hearing at which all matters are considered. They stress that the Question of Law is purely a question of law and will not involve any consideration of the facts or in particular of the public policy issues which so troubled the Tribunal. That being so I would have thought that a 2 day hearing would be sufficient for all issues to be argued. It may be however that I have underestimated the nature of the debate on the Question of Law. It was not a subject much discussed before me. But it is difficult to see why more than 3 days would be required.[69]I accept that a hearing of preliminary issues in an arbitration claim will not save the costs associated with witness statements and disclosure which are the sort of savings one looks for when a hearing of preliminary issues is sought in a trial. That might suggest that the appropriate course is to have all issues heard at the one hearing in order to avoid the possible delay and costs associated with two hearings.[70]But there is a further factor to take into account.[71]The Commercial Court has a major role in supervising the conduct of arbitrations in London. The Court is, for good reason (see section 1 of the Arbitration Act), concerned not to stray into the terrain which is properly that of the arbitral tribunal. Consideration of the Question of Law will require the Court to review the decision of the Tribunal on that very question and so enter the terrain of the Tribunal. If (and I emphasise if) section 45 is properly engaged in this case then it would appear that the Court will have to enter the terrain of the Tribunal. However, if, as the Interveners contend, section 45 is not properly engaged in this case then the Court will not have to enter the terrain of the Tribunal if Issues 1-4 are determined as preliminary issues. That being so, a powerful reason for directing the hearing of Issues 1-4 is that if the Interveners are correct not only will the costs of determining the Question of Law be avoided but, even more importantly, there will be no risk of the Commercial Court being seen to enter the terrain of the Tribunal.[72]I have therefore reached the clear conclusion that there should be a determination of Issues 1-4 as preliminary issues. A hearing of 1 day should be fixed (which I am told could be next term) with 1 day’s pre-reading.

Costs

[73]I have not heard the parties on costs. My provisional view is that the costs of the joinder issue should be costs in the Arbitration Claim because it was plainly a case management matter. The question whether there should be a determination of preliminary issues was also a case management matter but one on which the parties were plainly at odds and on which the Interveners have won. However, the formulation of the preliminary issues had to be amended shortly before the hearing, one issue was further amended during the hearing to make clear its scope and the Interveners had to accept that Issue 5 was not a proper preliminary issue. My provisional view therefore is that the costs of the question whether there should be preliminary issues should also be in the Arbitration Claim. If any party wishes to propose any other order they should do in writing.[74]I invite counsel to agree an order giving effect to my directions.

Cited in 1 later judgment