The Hon’ble Bombay High Court in the case of Batliboi Environmental Engineering Ltd. v. Hindustan Petroleum Corporation Limited, Arbitration Application No. 338 of 2024 has held that the parties can decide to have a fresh arbitration on the same dispute if the Arbitral Award has been set aside under Section 34 or 37.
The Court observed,
“39. In view of the foregoing, I do not think it necessary to burden this judgement with any further prolixity with more analysis of every other judgement cited by either side on the doctrine of merger. In my opinion, the SC Judgement is clearly an opinion that the Arbitral Award ought to have been held as not being sustainable in exercise of the jurisdiction under Section 37 of the Act read with Section 34 of the Act. The Supreme Court explicitly ruled that it was not commenting on the merits. Taking such explicit findings into account and that too in the context of the specific nature of the jurisdiction that Section 34 and Section 37 of the Act entails, I am of the opinion that no case has been made out to deviate from the norm that the parties are restored to the original pre-Arbitral Award position. Therefore, necessarily, this Section 11 Application deserves to be allowed. Consequently, this Application is finally disposed of in the following terms.”
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