UK: Appeal on a Question of Law - Section 69 Arbitration Act 1996

Last Updated: 31 January 2003

Reliance Industries Ltd v Enron Oil & Gas India limited [2002] 1 All ER (Comm) 59

A Commercial Court decision which will have relevance to international arbitrations with their seat in England or Wales. Mr Justice Aikens considered the application of section 69 of the Arbitration Act 1996 in relation to appeals from arbitration awards. The decision clarifies the position in relation to the application of English law principles in proceedings where the dispute is to be determined under foreign law.


Three companies, Reliance Industries Limited ("Reliance"), Enron Oil & Gas India Limited ("Enron") and Oil & Natural Gas Corporation Limited were parties to arbitration proceedings concerning the operation of two offshore oil and gas fields on India’s continental shelf. Enron was appointed Operator of the fields under two Joint Operating Agreements ("JOAs").

Disputes had arisen under the JOAs in relation to the construction of the accounting provisions of the JOAs, in particular, regarding procedures relating to the making and paying of cash calls and the raising of Authorisations for Expenditure. The JOAs provided that they should be "construed, interpreted and applied in accordance with the laws of India." The JOAs also contained arbitration agreements which provided that disputes should be submitted to arbitration under the UNCITRAL rules. The arbitration agreements were governed by English law and the seat of any arbitration was to be in London. In order to resolve the disputes that had arisen between the parties, Enron referred the disputes to arbitration. The tribunal ordered that preliminary issues on construction of the JOAs should be heard. At the hearing, it was common ground between the parties that for the purpose of construing and interpreting the provisions of the JOAs there was no difference between English and Indian law and that the principles of construction set out by Lord Hoffman in the recent cases of Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 and Bank of Credit & Commerce International SA v Ali and Others [2001] 2 WLR 735 were authoritative. Following the hearing, the tribunal made two Partial Awards on the preliminary issues of construction.

Reliance sought leave from the Commercial Court to appeal the Partial Awards on questions of law, under section 69(1) of the Arbitration Act 1996 (the Act). Section 82(1) of the Act defines a "question of law" as "a question of the law of England and Wales." It was, therefore, necessary for Mr Justice Aikens to make a decision on the threshold question of whether a question on the law of England and Wales arose in the construction of the JOAs, before the application for leave could be considered on its merits.

Submissions of the parties

Reliance submitted that none of the parties at the arbitration hearing had adduced evidence or argument on the principles of Indian law governing the questions of construction before the tribunal. Therefore, the tribunal was entitled to apply English law. Reliance argued that, because the tribunal had proceeded on the basis that English law was for all practical purposes the same as Indian law, it had therefore applied English law principles.

Enron submitted that all of the questions raised in the appeal were questions of construction of the JOAs and so were questions of Indian law because the JOAs were governed by Indian law. As the parties agreed that Indian law applied and the parties had not agreed to vary the contract terms (either before the disputes arose or subsequently in the arbitral process), the tribunal had to apply Indian law to construe the contract. Although it had been agreed that Indian and English law principles of construction were the same, the tribunal had applied Indian law. Enron submitted that the correct analysis was that the tribunal had accepted that English law on construction could be considered to discover the correct principles of construction according to Indian law, but that those principles had been adopted as a matter of Indian law.


Mr Justice Aikens did not accept Reliance’s submissions. He noted that the parties had agreed that Indian law governed the JOAs but that in drafting the JOAs they had been careful to ensure that English law would be the procedural law applicable to any arbitral proceedings that were commenced. Consequently, if and when disputes were referred to arbitration under the JOAs, as a matter of English law (the procedural law), the tribunal had to decide those disputes in accordance with the proper law of the JOAs chosen by the parties, i.e. Indian law. The Judge found that, in the circumstances, the parties had agreed that principles of construction under Indian law equated with those under English law. The tribunal took those principles and applied them as principles of Indian law, in order to construe the JOAs. This is what the tribunal was required to do under English law which governed the procedure of the arbitration.

Therefore he refused to grant leave to appeal the Partial Awards on the grounds that no question of the law of England and Wales arose and so the English Courts did not have the jurisdiction to grant leave under section 69 of the Act.


This case clarifies the position in relation to the availability of appeals to the Commercial Court under section 69 of the Act. This has important implications where the common approach in international arbitrations with their seat in London of applying English law principles without the need for evidence or submissions on the foreign law which governs the dispute is adopted. Mr Justice Aikens’ decision establishes that in these circumstances, the application of English law principles by the tribunal will not make the award subject to appeal on the basis that they concern questions of the law of England and Wales. The decision will be welcomed by the arbitration community in London as promoting commercial certainty and a benign climate for parties to agree on London as a seat for international arbitrations.

This decision clearly indicates that parties must consider the importance of applicable law to govern the substance of their relations when drafting their contract.

Article by John Gilbert

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.