Anupam Mittal v Westbridge Ventures II Investment Holdings—a Missed Opportunity?
The judgment of the Singapore Court of Appeal (‘SCA’) in Anupam Mittal v Westbridge Ventures II Investment Holdings (‘Anupam Mittal Case’) has been applauded for its pro-arbitration approach. Although welcome, the judgment proceeds on the premise that shareholder disputes in India may not be arbitrable as they take the colour of oppression and mismanagement (‘O&M’) actions under sections 241 and 242 of the Indian Companies Act, 2013. In this post, we argue that there is more to this issue than meets the eye and the jury is still out on whether shareholder disputes are ipso facto non-arbitrable under Indian law.
Position Taken by the SCA
In 2006, Mr Mittal had entered into a shareholders’ agreement (‘SHA’) with Westbridge Ventures II Investment Holdings (‘Westbridge’). The SHA contained a clause providing for arbitration proceedings seated in Singapore.
In 2021, Mr Mittal filed a petition before the National Company Law Tribunal, Mumbai (‘NCLT’), raising grievances of O&M inter alia by Westbridge. In response, Westbridge secured an ex-parte anti-suit injunction (in relation to the NCLT proceedings) against Mr Mittal in Singapore, arguing that the complaints before the NCLT arose from the SHA and fell within the scope of the arbitration agreement.
This injunction was challenged by Mr Mittal before the SCA, contending that O&M claims were not arbitrable under Indian law. While the SCA accepted his argument, it nonetheless proceeded to uphold the injunction by taking recourse to Singaporean law, under which oppression claims are arbitrable.
The SCA did this by first determining which law would apply to the arbitration agreement in the SHA. It observed that while the parties had selected Indian law as the law governing the SHA, they did not expressly agree on the law governing the arbitration agreement. Accordingly, the SCA applied the test laid down by the English Court of Appeal in Sulamerica, according to which the contract’s governing law is a strong indicator of the law governing the arbitration agreement. However, this indication could be displaced, based on the arbitration agreement’s construct and manner in which its effectiveness would be impacted by applying the governing law of the contract.
The SCA observed that if the SHA’s governing law (ie, Indian law) was taken to be the implied choice of law, it would negate the arbitration agreement given the Indian legal position. Accordingly, Indian law could not be taken as the law of the arbitration agreement. The other option was Singaporean law, since Singapore was the seat of arbitration. As oppression claims are arbitrable under Singaporean law, the SCA gave effect to the arbitration agreement and held that Singaporean law would govern the arbitration agreement contained in the SHA.
Legal Position in India
The Anupam Mittal case is a missed opportunity to consider more closely the Indian legal position on arbitrability of shareholder disputes. In fact, a long line of Indian judgments clarify that shareholder complaints arising out of the breach of a contract containing an arbitration clause ought to be referred to arbitration. This is in terms of section 8 of the Arbitration and Conciliation Act, 1996 for domestic arbitration and section 45 for international arbitrations.
For instance, in Sidharth Gupta v Getit Infoservices Private Limited, the Company Law Board (the predecessor to the National Company Law Tribunal which now functions as the exclusive forum for disputes arising under Indian company law) considered a similar case, where a petition was filed under section 397–398 of the earlier Companies Act, 1956, claiming O&M. After assessing the complainant’s grievances, the Court concluded that the complaints arose from the breach of a contract, which contained an arbitration agreement. While referring the parties to arbitration, the Court clarified that if allegations were against violations of contractual provisions, de hors any malice, the arbitration clause would trigger into action. A similar position was taken in Gleneagles Development Pte Ltd v T Gurunath Reddy.
In Chatterjee Petrochem v Haldia Petrochemicals Ltd, the Supreme Court of India drew a distinction between O&M complaints arising from a contractual breach and those relating to contraventions of a shareholder’s statutory rights. The Court opined that if the dispute pertained to the failure of a party to a private arrangement to abide by its commitments, an O&M complaint would not be the appropriate remedy.
Further, the Supreme Court of India has, in Booze Allen Hamilton v SBI Home Finance followed by Vidya Drolia and Ors v Durga Trading Corporation, clarified the legal position that contractual, in personam disputes are capable of being resolved by arbitration and are not non-arbitrable matters. In fact, the Court in Vidya Drolia even opined that when in doubt, the matter should be referred to arbitration.
Indian courts have also considered the issue of dressing up of petitions to give an illusion of an O&M complaint. In Rakesh Malhotra v Rajinder Malhotra, the Bombay High Court clarified that a petition in the guise of an O&M claim, seeking to dishonestly oust an arbitration clause, cannot be permitted to succeed. Parties must be referred to arbitration if there is a valid arbitration agreement. Similarly, in Rishima SA Investments LLC v Shristi Infrastructure Development Corporation Limited, the NCLT observed that where a petition was dressed up only to bypass the arbitration agreement, parties ought to be referred to arbitration. Thus, mere filing of an O&M complaint would not result in the dispute becoming exclusively triable by the NCLT.
These judgments, amongst others, clearly offer an insight into the conscious efforts being made by Indian courts to give effect to the arbitration agreement and refer disputes borne from purely contractual breaches to arbitration.
In the Anupam Mittal Case, Mr Mittal’s complaints in the NCLT proceedings primarily arose from the breach of the SHA. However, the SCA, based on the construct of the arbitration agreement, conducted a limited enquiry into the arbitrability of shareholder disputes from the lens of Singaporean law.
If the SCA had the benefit of considering the Indian judgments as set out above, it could have delivered a more comprehensive and considered decision. At the same time, it is hoped that there is a definitive pro-arbitration ruling from the Indian Supreme Court on this issue such that even in the context of shareholder complaints, parties would be required to to arbitrate if the complaints arise purely from the breach of the SHA.
Abhijnan Jha is a Partner at AZB & Partners, New Delhi
Urvashi Misra is a Senior Associate at AZB & Partners, New Delhi
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