The Supreme Court in the case of Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited[1] (“Avitel Case”) has recently engaged with the question of whether allegations of fraud can be adjudicated  in arbitration, or whether they require adjudication before a court. In its judgment, the Court has laid down clear tests to determine when a dispute involving allegation of fraud is arbitrable, and when it would require adjudication before a court.

Material Facts

In this case, a Share Subscription Agreement (“SSA”) dated April 21, 2011, was entered into between Avitel and HSBC, by way of which HSBC invested USD 60 million in Avitel to acquire 7.80% of its shareholding. The SSA contained a clause providing for arbitration at the Singapore International Arbitration Centre in case of a dispute. An accompany Shareholders’ Agreement (“SHA”) dated May 6, 2011, was also executed, which contained an identical arbitration clause. Thereafter, a dispute arose between the parties. HSBC alleged that the promoters of Avitel, namely, the Jain Family, had induced HSBC to invest in Avitel by making a representation that Avitel was on the verge of finalising a lucrative contract with the British Broadcasting Corporation. HSBC alleged that there was no such contract, and that around USD 51 million from the USD 60 million investment had in fact been siphoned away to other companies owned or controlled by the Jain Family. Arbitral proceedings were initiated, and a final award was passed in favour of HSBC inter alia holding the above allegations to be true (“Award”). The matter reached the Supreme Court in the context of a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”), filed by HSBC seeking orders of deposit of the full claim amount of USD 60 million to protect the subject matter of the Award, pending enforcement of the same.

Issues and Discussion

The Supreme Court was asked to consider whether HSBC had a prima facie case for enforcement of the Award in India. Challenging the enforcement of the Award, it was contended on behalf of Avitel that since the allegations of fraud have been made in arbitral proceedings involving serious criminal offences, such as forgery and impersonation, such a dispute is not arbitrable then under Indian law and the award unenforceable, as a consequence. On behalf of HSBC, it was contended that non-arbitrability would be triggered only in cases where serious allegations of fraud would vitiate the arbitration agreement and not in other cases.

After taking stock of the jurisprudence on this point thus far, the Court held that “serious allegations of fraud”, leading to non-arbitrability would arise only if either of following two tests were satisfied, and not otherwise.

  1. Where the Court finds that the arbitration agreement itself cannot be said to exist being vitiated by fraud; or
  1. Where allegations are made against the State or its instrumentalities, relating to arbitrary, fraudulent, or mala fide conduct, giving rise to question of public law as opposed to questions limited to the contractual relationship between the parties.

This means that all other cases involving “serious allegations of fraud” i.e. cases that do not meet the above two tests laid down by the Supreme Court, would be arbitrable. 

Applying the aforesaid test to the facts before it, the Court found that the issues raised and answered in the Award were the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be initiated by HSBC is of no consequence whatsoever. It was held that the impersonation, false representations and siphoning of funds found to have been committed were all inter parties and had no “public flavour” so as to be non-arbitrable on account of allegations of fraud. As such, the Supreme Court inter alia upheld the orders of deposit of the full claim amount of USD 60 million to be kept aside for the purposes of enforcement of the Award in India. 

Way Forward

The Supreme Court’s judgment in the Avitel Case lends clarity to courts and arbitral tribunals, which should aid in weeding out incessant and creative submissions to “wriggle out” out of arbitration agreements. The two grounds forming exceptions to arbitrability of matters involving serious allegations of fraud as crystallised by the Supreme Court are clearly identifiable and easily discernable. Therefore, the judgment in the Avitel Case is likely to save precious judicial time that may otherwise have been spent in deliberating on the question of arbitrability of a dispute involving allegations of fraud.

[1]  Civil Appeal No. 5145 of 2016, along with HSBC PI Holdings (Mauritius) Limited v. Avitel Post Studioz Limited Civil Appeal No. 5158 of 2016 with Civil Appeal No. 9820 of 2016