Usha Mehra ( 1 ) THIS is the second round of litigation between the parties. The question involved in the earlier petition, inter alia, was seeking declaration as to the existence, validity and effect (scope) of the Arbitration Agreement in respect of the claims raised by the Consortium vide its Request for Arbitration. By the present petition, the Gas Authority of India Ltd. (in short GAIL) has challenged additions/modifications of claims/disputes/questions lodged by respondents 1 to 3 led by Spie Capag S. A. (in short Consortium) which the Consortium did while filing its statement of claims before the Arbitral Tribunal and which the Arbitral Tribunal has incorporated in the draft Terms of Reference inspite of GAIL s protest. This action of the Consortium as well as of the Arbitrator, has been challenged, amongst others, on the following grounds : (I) That the reference to Arbitral Tribunal was a restricted reference. Only those claims which were mentioned in Section VII and for which declaration was claimed in Sections VIII (2) and (3) of the Request for Arbitration could be entertained. (ii) That without making a fresh Request for additional/modified claims, the Consortium has incorporated in the summary of its claims certain additions which it could not do. This would amount to adding new claims which is not permissible under ICC Rules. (iii) The claims/disputes/matters referred to by the Consortium in Section VI of the Request for Arbitration dated 30th March, 1990 cannot be gone into or arbitrated upon either directly or indirectly in view of judgment dated 15tb October, 1993. (iv) Matters/claims/questions other than those relating to the levy of liquidated damages by GAIL and encashment of bank guarantee alone can be adjudicated by the Arbitral Tribunal. ( 2 ) CONSORTIUM on receipt of notice from this Court, filed an application bearing IA. No. 9069/94 under Section 3 of the Foreign Awards (Recognition and Enforcement) Act (in short FARE Act ). Vide this application the Consortium has sought for the stay of the legal proceeding initiated by the GAIL under Section 33 of the Indian Arbitration Act. ( 2 ) CONSORTIUM on receipt of notice from this Court, filed an application bearing IA. No. 9069/94 under Section 3 of the Foreign Awards (Recognition and Enforcement) Act (in short FARE Act ). Vide this application the Consortium has sought for the stay of the legal proceeding initiated by the GAIL under Section 33 of the Indian Arbitration Act. ( 3 ) THE facts revolving round the controversy and relevant for the determination of these questions are that the petitioner/gail invited world wide tenders for execution of Welled Steel Gas Pipe Line Project for transportation of sweetened South Bassein Gas from Hazaria in the State of Gujarat to Jagdishpur in the State of Uttar Pradesh via Bijaipur in the State of Madhya Pradesb for use to fertilizers/power plants and other users. Respondents constituted themselves into a Consortium. Contract of HBJ Gas Pipeline Project was awarded by the GAIL to Consortium led by Spie Capag S. A. and others. The total contract price for supply and execution Of the work for completion of the Project was agreed. It was inclusive of supply and commissioning/operational spare parts and special tools etc. This price was to remain fix and firm and was not to be subject to escalation. The scope of work awarded by the GA1l to the Consortium was as contained in Article 2 of the special conditions of contract which form part of the contract document. Parties ultimately entered into two agreements being Agreements No. 1 and 2 on 10th May, 1986. Both the agreements embodied identical provisions. It has been stipulated that default on the part of the respondents of their obligation in terms of their agreement shall be considered as default of their obligation under one or the other agreement. These agreements contained general conditions of contract and special conditions of the contract. ( 4 ) IT is further the case of the petitioner that the project was to be completed in accordance with the time frame specified in Section 3 of the Contract which envisaged "completion Schedule" of the work on different dates for different sections, commencing from 31 st March, 1987 to be completed by 31st July, 1988. Both the parties have been blaming each other for delay in the completion of work. Both the parties have been blaming each other for delay in the completion of work. Due to the delay in completion of work by the Consortium, the GAIL demanded liquidated damages as specified in the Contract and also took step to encash the performance guarantee furnished by the Consortium. ( 5 ) ON the other band, Consortium demanded additional payment. It blaimed the GAIL for curtailing the scope of work and for causing damage to the respondents. The Consortium also demanded additional payments which were disputed and denied by the GAIL. On or about 9th or 10th April, 1990 the petitioner/gall received a communication from the Secretary of International Chamber of Commerce (in short icc ) (respondent No. 4) forwarding a copy of request for arbitration dated 30th March, 1990 filed by the Consortium claiming additional payment of US$ 450 million as per statement of claimants case set out in Section VI and prayer contained in Section VII 1 (1 ). ( 6 ) THE GAIL challenged the request on the ground that the same was not covered under the Arbitration Agreement. It being unwarranted and invalid, therefore, not maintainable. Since the request of Consortium contained in its letter dated 30th March, 1990 was considered by the GAIL to be invalid and outside the purview of the Arbitration Agreement, therefore, GAIL filed a petition under Section 33 of the Arbitration Act, 1940 on 3rd May, 1990 which was registered as Suit No. 1440/90. ( 7 ) THIS court vide its judgment dated 15th October, 1993 disposed of the said petition holding that claims as contained in Section VI amounting to US$ 450 million made by the Consortium vide its letter of request were not referable to Arbitral Tribunal. Thus all matters forming the basis of the said claims/disputes/questions were declined to be referred by the judgment dated 15th October, 1993. For other claims covered in Section VII relating to levy of liquidated damages, it was held that the said dispute could proceed before the Arbitral Atribunal. Directions were given by the court to the ICC to constitute a Arbitral Tribunal for that purpose. ( 8 ) THEREUPON respondent No. 4 vide its communication of 23rd November, 1993 intimated to counsel for the parties that procedure for constituting Arbitral Tribunal will continue and asked GAIL to nominate an Arbitrator. Directions were given by the court to the ICC to constitute a Arbitral Tribunal for that purpose. ( 8 ) THEREUPON respondent No. 4 vide its communication of 23rd November, 1993 intimated to counsel for the parties that procedure for constituting Arbitral Tribunal will continue and asked GAIL to nominate an Arbitrator. ( 9 ) THAT GAIL intimated to ICC that only question converting the liquidated damages could be arbitrated upon. That the Arbitral Tribunal was, in fact, constituted for determining the said claims only and even for that there was need of fresh request. Consortium, however, took the plea that it did not intend to file a fresh request in relation to GAIL s claim of liquidated damages. Vide letter dated 23rd December, 1993 ICC communicated that Arbitrator would proceed on the basis of the submissions made. GAIL nominated Arbitrator vide its letter dated 10th January, 1994 but only with regard to the question of liquidated damages. The position was admitted by Consortium vide its counsel s letter daced 19th January, 1994. Chairman of the Arbitral Tribunal vide its letter dated 20th June, 1994 communicated to the parties to submit their summary of claims. Consortium in its summary of claimant s case dated 18th July, 1984 instead of limiting the same to issue arising from liquidated damages, sought to put up matters other than those connected with the issue of liquidated damages and also tried to include directly or indirectly matters which were specially declared to be outside the purview of Arbitral Tribunal vide this court s judgment dated 15th October, (993. Terms of Reference drawn up by the Tribunal included the summary as put up by Consortium, hence GAIL refused to sign the same. ( 10 ) THE claims which have been included in the summary of claim are those which were specifically held not to be referable to the Arbitral Tribunal by the judgment of this court dated 15th October, 1993. The Consortium has, thus made an attempt to introduce other claims which are outside the purview of the reliefs/orders that had been sought from the Tribunal in the Request for Arbitration dated 30th March, 1990. These claims now intended to be included are not permissible in view of the judgment dated 15th October, 1993. The Consortium has, thus made an attempt to introduce other claims which are outside the purview of the reliefs/orders that had been sought from the Tribunal in the Request for Arbitration dated 30th March, 1990. These claims now intended to be included are not permissible in view of the judgment dated 15th October, 1993. However, for these claims separate letter of request ought to have been made, thereby giving opportunity to the GAIL to know as to what claims of the Consortium it was going to meet. In the absence of material and details GAIL has been deprived of reasonable opportunity to defend. ( 11 ) THE Consortium on the other hand, vide its LA. No. 9069/94 has taken objection about the maintainability of this petition of the GAIL. According to Consortium, the petition is barred under Section 3 of the PARE Act. ( 12 ) THE controversy as already pointed out above resolve around the addition/modification of claims put up by the Consortium in its summary of claims filed before the Arbitrator at the time of drawing terms of reference. Both the counsel appearing for the respective parties have placed reliance on various Articles of the ICC Rules of Arbitration and the interpretation of the judgment of this court dated 15th October, 1993. ( 13 ) MR. Ashok Desai, counsel appearing for the GAIL urged that Vide judgment dated 15th October, 1993 this court restricted the request of Consortium only to claims covered under Section VII i. e. levey of liquidated damages and encashment of bank guarantee, therefore, the claims which Consortium has now tried to put up with its summary of claim cannot be permitted, particularly when those claims already stood declined to be referred to Tribunal by the court. The Arbitral Tribunal was constituted for a limited purpose. Since, restricted reference was made to Arbitral Tribunal pertaining to the claims covered in Section VII of the Request for Arbitration. Consortium by way of placing the summary of its case, cannot be permitted to smuggle in those very claims which were specifically rejected by this court vide judgment of 15tb October, 1993. The additional disputes now raised are either covered in Section VI of Request for Arbitration or are outside the arbitration agreement. Moreover,, for these claims/questions, no details are given nor fresh request made nor parties agreed to refer these disputes for arbitration. The additional disputes now raised are either covered in Section VI of Request for Arbitration or are outside the arbitration agreement. Moreover,, for these claims/questions, no details are given nor fresh request made nor parties agreed to refer these disputes for arbitration. ( 14 ) THAT during the course of arguments Mr. P. V. Kapur, counsel for the Consortium, however, conceded that those additional/new disputes/ claims which fall in Section VI of the Request for Arbitration cannot be adjudicated by the Arbitral Tribunal till such time the judgment of 15th October, 1993 holds good. However, he has based his case on the premises that any party to the Arbitration Agreement can legitimately as of right can add new claims/disputes/submissions/questions or modify the same. But this can be done only upto the state the terms of reference is settled as is clear from the reading of Article 13 (1) of the ICC Rules. ( 15 ) IN order to appreciate the rival contentions of the learned counsel for the parties, it would be necessary to refer to various Articles of the ICC Rules. The ICC Rules of Arbitration admittedly are applicable and govern the procedure for the initiation of Arbitral proceedings and procedures to be followed thereafter. An arbitration can be initiated by submission of a request for arbitration to the Secretariate of the Court of Arbitration in accordance with Article 3 of the Rules, Article 3 prescribes as under : Article 3 : 1. A party wishing to have recourse to arbitration by the International Chamber of Commerce shall submit its Request for Arbitration to the Secretariate of the International Court of Arbitration, through its National Committee or directly. In this letter case the Secretariate shall bring the Request to the notice of the National Committee concerned. The date when the Request is received by the Secretariate of the court shall, for all purposes, be deemed to be the date of commencement of the arbitral proceedings. 2. The Request for Arbitration shall inter alia contain the following information: (a) names in full, description, and addresses of the parties, (b) a statement of the Claimant s case. The date when the Request is received by the Secretariate of the court shall, for all purposes, be deemed to be the date of commencement of the arbitral proceedings. 2. The Request for Arbitration shall inter alia contain the following information: (a) names in full, description, and addresses of the parties, (b) a statement of the Claimant s case. (c) the relevant agreements, and in particular the agreement to arbitrate, and such documentation or information as will serve clearly to establish the circumstances of the case, (d) all relevant particulars concerning the number of arbitrators and their choice in accordance with the provisions of Article 2 above. 3. The Secretariate shall sent a copy of the Request and the documents annexed thereto to the Defendant for his Answer. ( 16 ) ARTICLE 4 provides for an answer to the request for arbitratioa by the defendant. The said Article reads as under : Article 4: 1. The Defendant shall within 30 days from the receipt of the documents referred to in paragraph 3 of Article 3 comment on the proposals made concerning the number of arbitrators and their choice and, where appropriate, nominate an arbitrator. He shall at the same time set out his defence and supply relevant documents. In exceptional circumstances the defendant may apply to the Secretariate for an extension of time for the filing of his defence and his documents. The application must, however, include the Defendant s comments on the proposals made with regard to the number of arbitrators and their choice and also, where appropriate, the nomination of an arbitrator. If the defendant fails so to do, the Secretariate shall report to theInternational Court of Arbitration, which shall proceed with the arbitration in accordance with these Rules. 2. A copy of the Answer and of the documents annexed thereto, if any, shall be communicated to the Claimant for his information. ( 17 ) ARTICLE 5 thereafter deals with the counter claim i. e. , if the defendant wishes to make a counter claim, be shall file the same. After the defendant files the counter claim, the claimant will be given a right to file reply as prescribed in Article 5 : Article 5: (1) If the defendant wishes to make a counter-claim, be shall file the same with the Secretariate, at the same time as his Answer as provided for in Article 4. After the defendant files the counter claim, the claimant will be given a right to file reply as prescribed in Article 5 : Article 5: (1) If the defendant wishes to make a counter-claim, be shall file the same with the Secretariate, at the same time as his Answer as provided for in Article 4. (2) It shall be open to the Claimant to file a Reply with the Secretariat within 30 days from the date when the counter-claim was communicated to him. ( 18 ) ACCORDING to Mr. Desai, there is DO provision in the ICC Rules penaitting the Consortium to raise any claims without first making a request for arbitration. Article 13 of the Rules has to be read and understood in the context of the Rulers concerning pleadings. In fact Article 10 provides for transmission of the file to the Arbitrators after the expiry of the time provided in Articles 4 and 5 and the pleadings and/or submissions as referred in Articles 4, 5 and 6. The object of Article 13 is to sum up the disputes listed by the parties in its Request for Arbitration and which requires to be adjudicated. Those will form part of the Term of Reference, while summarising the disputes, the Arbitrator would take note of the pleadings and documents filed by the parties. While summarising the Arbitrator would keep in view the "most recent submissions of the parties. The "most recent submissions" by no stretch of imagination would mean additional claims. These recent submissions would be to support the claims already set up by the claimant i. e. , to support the pleadings and/or submissions already filed. Such recent submissions have to be related to the pleadings already made but could not mean lodging of new claims. No new claim can be introduced in the guise of summary of claims to be furnished for the purpose of Terms of Reference. The reason for asking fresh Request for Arbitration in respect of these claims is primarily based on principles of natural justice. If these claims had been initiated as required under Article 3, then OAIL would have got the opportunity to know the details. The OAIL would have filed its defence to the same. It would have been known whether claims were filed within time and were covered under the Contract. If these claims had been initiated as required under Article 3, then OAIL would have got the opportunity to know the details. The OAIL would have filed its defence to the same. It would have been known whether claims were filed within time and were covered under the Contract. In the absence of details, the GAIL, has been deprived of the right to defend. The principles of natural justice has been violated. Moreover, reference to Arbitral Tribunal was limited, restricted to only those claims which were specifically covered by Section VII and the prayer made in Sections VIII (2) and (3 ). The claims of breaches alleged against GAIL i. e. , affirmative claims of the Consortium and consequential relief for damages were declined to be referred to Arbitral Tribunal as being outside the purview of the Contract. In this regard attention to paras 136, 144 and 145 of the judgment dated 15th October, 1993 in Suit No. 1440/90 had been drawn. Paras 136, 144 and 145 read as under : "136. If a claim for extra additional payment is not raised in accordance with the provisions of Article 5. 7. 1. party will not have access to the arbitral mechanism". "144. It is not claimed either in the application under Section 3 of the PARE Act or in the letter dated March 30, 1990 of the Consortium addressed to the International Court of Arbitration of International Chamber of Commerce, that the procedure prescribed under Article 5. 7. 1. of the GCC for prefeiting ring extra/additional claim had been complied by it. The claim of the Consortium to the tune of US$ forty five hundred million is in addition to the fixed contract price of US$ five hundred eighty four million. Consortium s claim for extra payment should be made in accordance with Articles 5. 7. 1. of the GCC. As already seen Art. 1. 7, dealing with the work, Article 1. 11, relating to "specification, and Articles 5. 1. 1 to 5. 1. 4. dealing with the contract price, cover all kinds of activities relating to the work in question and price of all groups, sections and sub-sections thereof. As is apparent from clause B of the agreement, the Consortium is deemed to have foregeen the nature and extent of 77 delays in the execution of the work. Even according to Article 4. 18. dealing with the contract price, cover all kinds of activities relating to the work in question and price of all groups, sections and sub-sections thereof. As is apparent from clause B of the agreement, the Consortium is deemed to have foregeen the nature and extent of 77 delays in the execution of the work. Even according to Article 4. 18. 2 of the GCC delay in execution of the work on account of its suspension/stoppage/hindrance does not entitle the Consortium to claim compensation as such contingencies were deemed to have been duly considered in the contract price. This article reads as under : "4. 18. 2. It is also possible that work may be required to be temporarily suspended/stopped/hindered for short duration (s) due to various reasons/constraints. As such contingencies are foreseen and are likely to occur on various workfronts, locations and occasions, these are deemed to have been duly considered in the contract price, contractor may be given extension of time provided such reasons/contrains are not attributable to contractor. No compensation whatsover is payable to contractor and no adjustment in contractor price is envisaged on this account". ( 19 ) IN para 145 of the said judgment dated 15th October, 1993, this Court observed : 145. Therefore, it is to be assumed that the Consortium quoted the price or the work in question after taking into consideration the nature and the extent of the likely delays in the execution of the work. In "face of the stipulations made in the aforesaid article, it was for the Consortium to show as to how the claim was arbitrable. In this case, the question is not merely of determining the scope of the arbitration clause but the question is of the existence of the arbitration agreement qua the claim of the Consortium for US$ 450 million, which is not in conformity with Article 5. 7. 1. Once the bar of Article 5. 7. 1. comes into operation, the arbitration agreement disappears and no longer exists in regard to the claim for extra or additional payment as consent of the parties for referring the matter to arbitration stands withdrawn. 7. 1. Once the bar of Article 5. 7. 1. comes into operation, the arbitration agreement disappears and no longer exists in regard to the claim for extra or additional payment as consent of the parties for referring the matter to arbitration stands withdrawn. ( 20 ) IN the end of para 160 of the said judgment, it was observed "having regard to the discussion and in view of the conditions III, V and VI laid down by the Supreme Court in Renusagar Power Company Ltd. (supra) have not been satisfied in that case. Therefore, so far as the claim of the Consortium amounting to VS$ 450 million are concerned, no case has been made out for its reference to arbitration. This issue will not arise before the "court of Arbitration of International Chamber of Commesce". According to Mr. Desai, if the Consortium bad any other claim of breach, it ought to have included the same in its Request for Arbitration dated 30th March, 1990. Since all claims of breaches referred in Section VI stand rejected, therefore, after the matter having been settled by this Court, the Consortium cannot and ought not to have been allowed to incorporate additional/modified claims and/or claims which were directly or indirectly debarred by the Court to be adjudicated by the Arbitrator. In the forms of submissions by way of summary of the case Consortium cannot enlarge the scope of reference. Even Consortium s attorney vide its letter dated 19th January, 1994 admitted that the Arbitral Tribunal was only concerned with the liquidated damages issue i. e. with regard to Consortium claim for declaration that liquidated damages may not be levied by GAIL. In para 12 of his letter, Mr. Herbert Smith admitted in the following words "the Consortium asked the ICC to fulfil its duties under the ICC rules and proceed with the constitution of the Arbitral Tribunal and further to require GAIL to file its answer to the request made under Article II of the ICC Rules, limited, of course, to the levy of liquidated damages issue". As regards the question of fresh request, Mr. Herbert Smith indicated that even if fresh request was made, the contents wouldbe the same. All that would differ would be the date of filing. Relying heavily on these admissions on the part of Mr. Herber Smith, Mr. As regards the question of fresh request, Mr. Herbert Smith indicated that even if fresh request was made, the contents wouldbe the same. All that would differ would be the date of filing. Relying heavily on these admissions on the part of Mr. Herber Smith, Mr. Desai contended that parties clearly recognised and understood that the Arbitral Tribunal was constituted for a limited purpose and had limited jurisdiction. This understanding is further reflected in the correspondence exchanged between the parties and the Secretariate of ICC from November, 1993 onwards. Reference was also made to the letters of Consortium dated 22nd December, 1993, 4th February, 1994. The new and additional claims included in the summary of submissioas dated 18th July, 1994 and as modified subsequently and sought to. be included in the Terms of Reference cannot be permitted. It is violative of law and the Rules. It contravenes the judgment of 15th October, 1993. ( 21 ) ON the other hand refuting the GAIL s submissions, that ICC Rules do not permit introduction of new claims into current arbitration proceedings, Mr. Kapur contended that Article 3 of the ICC Rules did not require a separate request for each claim to be preferred before the arbitrator. In current arbitration proceedings, ICC Rules envisages and enable the party to file his "most recent submissions". Most rent submissions" would mean even those claims which were left over earlier in the Request for Arbitration. Article 3 of the ICC Rules must be read in the context of these Articles, namely. articles 13 and 16 thereof, which are of particular relevance in the present context. Article 13 deals with "term of reference". Article 13 is reproduced as under : Article 13 : TERMS OF REFERENCE 1. Before proceeding with the preparation of the case, the arbitrator shall draw up, on the basis of the documents or in the presence of the parties and in the light of their most recent submissions, a document defining his Terms of Reference. Article 13 is reproduced as under : Article 13 : TERMS OF REFERENCE 1. Before proceeding with the preparation of the case, the arbitrator shall draw up, on the basis of the documents or in the presence of the parties and in the light of their most recent submissions, a document defining his Terms of Reference. This document shall include the following particulars : (a) the full names and description of the parties, , (b) the addresses of the parties to which notification or communications arising in the course of the arbitration may validly be made, (c) a summary of the parties respective claims, (d) definition of the issues to be determined, - - (e) the arbitrator s full name, description and address, (f) the place of arbitration (g) particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitrator to act as amicable composite, (h) such other particulars as may be required to make the arbitral award enforceable in law, or may be regarded as helpful by the International Court of Arbitration or the arbitrator. ( 22 ) THE phrase "most recent submissions" appearing in Article 13 clearly envisages that the parties can unilaterally modify and/or amend their claims or to introduce new claims. But this can be done only upto the stage of drawing up the Term of Reference. In this regard Mr. Kapur placed reliance on the article written by Erik Schafer under the heading "icc Arbitral Process, Term of Reference in the Past and at Present". In the words of Erik Schafer who was counsel at the ICC quotes "terms of Reference have evolved towards being an instrument to devise and structure the procedure followed by the Arbitral Tribunal". According to him,there does not exist such impediment in the case of modifications and amendments that may occur before the signature of the Terms of Reference. Thus the parties up to the last moment i. e. untill the signing of the Terms of Reference, can amend their claims notably those formulated in the Request for Arbitration or in the answer to such request. In this regard, he also placed reliance on the article by Prof. Thus the parties up to the last moment i. e. untill the signing of the Terms of Reference, can amend their claims notably those formulated in the Request for Arbitration or in the answer to such request. In this regard, he also placed reliance on the article by Prof. Matthieu Da Boissesson and on a letter written by the Chairman of the Arbitral Tribunal dated 29th June, 1994 wherein it has been mentioned that the respondent herein would have an opportunity to amend their summary of claims while sending draft Terms of Reference for comments. In fact any change or amendment made in the original claim would be permissible since these are made before putting signature on the "terms of Reference". In this regard, he drew my attention to an ICC interim award of 16th November. 1984 delivered in Case No. 4367 between the US supplier-claimant and the Indian buyer-Respondent. Where ICC Arbitrators held that amendment or putting additional claim was permissible. It could be made before the Term of Reference is signed, thus giving the respondent notice in ample. time to respond to the claims on merits. So relying on this decision, Mr. Kapur contended that additional claims or the changes submitted in the statement of facts by the Consortium were in accordance with the ICC Rules permitting them to make those changes. He also placed reliance on the article written by Marc Blessing, particular of the law firm Bar and Karrer, Zurich and President of the Swiss Arbitration Association under the heading "the ICC Arbitral Process-The Procedure Before The Arbitral Tribunal". He then placed reliance on the journal issued by the International Chamber of Commerce "the World Business Organisation" to strengthen his argument that upto the Terms of Reference new claims can be added or amended. ( 23 ) ACCORDING to Mr. Kapur principles of natural justice is not a criteria applicable to the proceedings under Section 33 of the Arbitration Act or to an application under Section 3 of the FARE Act. Since ICC Rules permit introduction of new claims i. e. part of the Arbitration Agreement between the parties to which they have voluntarily adhered, hence, the question of natural justice being violated does not arise in this case. In any event, there has not been and there will not be any breach of the principles of natural justice in relation to the new claims. In any event, there has not been and there will not be any breach of the principles of natural justice in relation to the new claims. The summary of the Consortium s claim was communicated to the GAIL on 18th July, 1994 with further amendments on llth August, 1994. No complaint of the failure of the principles of natural justice was made by the GAIL prior to the Terms of Reference meeting held on 22nd and 23rd August, 1994 nor such complaint was made at the time of the meeting or in the submissions filed at that meeting with the arbitrators. It was also not the case of the GAIL before the Arbitrator that new claims were beyond the scope of the reference. Between 18th July, 1994 to 23rd August, 1994, the GAIL had ample notice of these claims and could have responded to the same. GAIL never asked for more details regarding these claims. After the Terms of Reference is signed, parties will get opportunity to fully develop their claims and substantiate the same by documentary evidence. In fact, the rule of pleadings similar to the litigation before the Civil Courts do not apply to this Arbitral Tribunal constituted by the ICC. Moreover, GAIL also filed its additional/ modified submissions at the time of settlement of Terms of Reference. It asked the arbitrator to permit GAIL to file new claims/defences. GAIL also asserted its right to introduce new claims. It was GAIL s own understanding of the rules that newclaims can be included in ICC arbitration upto the state of signatures of the Terms of Reference and that by inclusion of new claims, no breach of principles of natural justice stood committed. ( 24 ) BOTH the parties have relied on the interpretation of Article 13 of the ICC Rules besides relying on various Articles of this Rules in order to strengthen their arguments. Relevant articles have already been reproduced above alongwith relevant portions of the judgment dated 15th October, 1993 which have been quoted in extenso. Admittedly there is no Rule as such permitting the parties to modify, add or change the claims already made. In order to appreciate the arguments one must understand the phrase used in Article 13 (1), namely, "most recent submissions". Will it mean permitting the party to file new claims. Admittedly there is no Rule as such permitting the parties to modify, add or change the claims already made. In order to appreciate the arguments one must understand the phrase used in Article 13 (1), namely, "most recent submissions". Will it mean permitting the party to file new claims. "recent" means as per Concise Oxford Dictionary "not long past; that happened ; appeared, began to exist, or existed lastly ; lately begun ; "submission" means as per Oxford Dictionary ; the act or an instance of submitting ; the state of being submitted anything that is submitted. ( 25 ) AS per the Oxford English Dictionary, Second Edition Volume XVII at page 45 "submissions" mean : 1. (a) Law Agreement to abide by a decision or to obey an authority ; reference to the decision or judgment of a (third) party, in recent use spec. , law, a contract by which parties agree to submit disputed matters to arbitration ; also, the document embodying such a contract. (b) In wider use, the act of submitting a matter to a person for decision or consideration. (c) In legal use, a theory of a case put forward by an advocate. ( 26 ) AS per Stroud s Judicial Dictionary, 5th Edition "submission" means a written statement to submit present or future differences to arbitra- tion, whether an arbitrator s named herein or not," "written Agreement", there, meant a perfected agreement to which the parties were ad idem and which was embodied in writing. " ( 27 ) THE word "submission" also came up for interpretation before the Supreme Court in the case of V. O. Tractoroexport, Moscow v. Tarapore and Company1, it observed that unless the context so compels or requires, the same meaning most ordinarily be attributed or given to the same words used in the section. The above difficulties completely disappear if "submission" is given the second meaning of an actual submission of a particular dispute or disputes to the authority of a particular arbitrator. ( 28 ) WORD "submission" is a covenant by which persons who have a law suit or difference with one another name arbitrators to decide the matter and bind themselves to perform what shall be arbitrated. That act is called "submission" by which parties refer any matter in dispute between them to the decision of a third person. ( 28 ) WORD "submission" is a covenant by which persons who have a law suit or difference with one another name arbitrators to decide the matter and bind themselves to perform what shall be arbitrated. That act is called "submission" by which parties refer any matter in dispute between them to the decision of a third person. ( 29 ) TAKING clue from the above definitions of the word "recent submissions" one can safely conclude that phrase "most recent submissions" appearing in Article 13 would mean the actual disputes having arisen between the parties as on the date the Terms of Reference are drawn up. The submissions being the matter in dispute would naturally mean the dispute as on that date. The word "submissions" does not mean elaborating the claims already made as Mr. Desai wants this court to hold. In the light of "most recent submissions" to my mind, would mean actual disputes or claims which the parties may like to agitate before the Arbitrator on the basis of fresh documents or explanation to be rendered personally before the Arbitrator get agitated till such time of signing of the Terms of Reference. Article 3 which has been relied by counsel for the GAIL, to my mind, by no stretch of imagination restrict the additional claims nor does the reading of Article 3 indicates that after filing a statement of the case such a claimant is debarred from altering or modyfying the same. The reading of Article 13 indicates the contention of Mr. Desai that the Consortium or for that matter any claimant who has once made a request for arbitration stands debarred from adding other claims before the Arbitrator or that such a claimant would be bound by the statement of claim already filed nor does it indicate that every request for fresh claim must be followed by a fresh request for arbitration. This interpretation to my mind, will be too narrow and technical. ( 30 ) ADMITTEDLY, the request for arbitration has to be only once. Thereafter, parties have been given the right to make their recent submissions means the actual dispute as on the date of signing of the terms of reference. The analogy which Mr. Desai has drawn between these proceedings and that of reference of Section 20 and Section 8 of the Arbitration Act is of no relevance. Thereafter, parties have been given the right to make their recent submissions means the actual dispute as on the date of signing of the terms of reference. The analogy which Mr. Desai has drawn between these proceedings and that of reference of Section 20 and Section 8 of the Arbitration Act is of no relevance. The Arbitral Tribunal in this case was not appointed by the court. The Arbitral Tribunal was to be constituted by ICC. This court vide its judgment dated 15th October, 1993 was only concerned with the objections to the claims raised by the Consortium in its request for 1. AIR 1971 SC 1 . arbitration. The Court after deciding each claims, asked the ICC to constitute the Albitral Tribunal. This does not mean that vide the judgment dated 15th October, 1993, the court held that the Consortium cannot raise any other claim if it is covered under the Arbitration Agreement. The court was ceased only of the disputes which were referred in the Request for Arbitration. Therefore, the analogy drawn by Mr. Desai under Section 20 and/or Section 8 of the Arbitration Act has no relevance. The Arbitral Tribunal was thus constituted pursuance to the Request for Arbitration and in terms of the Arbitration Agreement between the parties and not by the orders of the court. ( 31 ) ONCE the Request for Arbitration is conceded thereafter parties have been given right to make their submissions. From the facts which have come on record, it cannot be said that by incorporating other claims, the GAIL has been deprived of the right to defend. As rightly put by Mr. Kapur that summary of claims was communicated to GAIL on 18th July, 1994 with further amendments on llth August, 1994. The meeting of the Arbitral Tribunal was to be held on 22nd and 23rd Aug. , 1994, The gail could have filed the reply or could have asked time for filing reply which is permissible under Article 13. itself. The reading of Article 13 (2) shows that the court may pursuance to a reasoned request from the Arbitrator or if need be no its own initiative explain time limit which is fixed uader this Article 13 (2) i. e. two months if it is necessary so to do. itself. The reading of Article 13 (2) shows that the court may pursuance to a reasoned request from the Arbitrator or if need be no its own initiative explain time limit which is fixed uader this Article 13 (2) i. e. two months if it is necessary so to do. In case the GAIL has asked for time, court i. e. the International Court of Arbitration under Article 13 (2) would have extended the time giving thereby sufficient opportunity to GAIL to file the reply. Therefore, it cannot be said that GAIL has been deprived of any opportunity on this account. In any event, I cannot see any breach of principle of natural justice in relation, to. the other claims filed by the Consortium. ( 32 ) ARTICLE 16 of the ICC Rules Permit changes even after the Terms of Reference are signed. Therefore, there is no reason why there may be an impediment for filing additional claims or new claims at the time of signatures of the Terms of Reference. This was so incorporated in the case referred to above i. e. , interim award of 16th November, 1984 in Case No. 4367 when it was observed "in our view these changes are permissible since they were made before the Terms of Reference were signed, those giving the respondent notice in ample time to respond to the claims on merits. Moreover, since Article 16 of the ICC Rules permits changes even after the Terms of Reference are signed, change before that even are in our view a fortiori permitted".( 33 ) IN a complicated arbitration case the claimant, and even more so the respondent, has not, during the period of the filing of the request for arbitration, appreciated the full extent of the dispute. The parties, thus, profit from the time available between the date of the Request for Arbitration and the date of signature of the Terms of Reference to reflect on their cliams. The Terms of Reference thus is an important step to crystalise the dispute into its essential elements. The parties, thus, profit from the time available between the date of the Request for Arbitration and the date of signature of the Terms of Reference to reflect on their cliams. The Terms of Reference thus is an important step to crystalise the dispute into its essential elements. That is the reason in Article 13 (1) at the time of formulating the document of reference the arbitrator is to take into account the latest submissions meaning thereby the disputes which the parties may like to file by way of summary of their respective claims because from the date of Request for Arbitration and till the time of drawing up of the Terms of Reference, parties had opportunity to appreciate the full extent of their respective disputes. Even the Chairman of the Arbitral Tribunal has clearly indicated in his letter of 28th July, 1994 that "terms of Reference does not take the place of pleadings and will be followed by written submissions and oral arguments. This will give parties an opportunity to fully develop their claims and arguments". For the above reasons, I find no merits in this argument of counsel for the GAIL. ( 34 ) NOW turning to the second submission of Mr. Desai that the additional or amended claims raised by the Consortium are those which were rejected by the court vide its judgment dated 15th October, 1993. As already observed above, Mr. Kapur has fairly conceded that claims now put up if already covered by the decision of this court dated 15th October, 1993, the same cannot be arbitrated upon. Therefore, what we have to see is whether these claims now raised by the Consortium and incorporated in the draft Terms of Reference were those which were directly or indirectly connected with the claims mentioned in Section VI and the prayer 8 (1) of the letter of request. Mr. Kapur s contention that only claim regarding US$ 450 million was declined. I am afraid this argument is mis-leading and is not as per the judgment of this court dated 15th October, 1993. Anil Dev Singh, J. while delivering the judgment took pain in considering each of the claims made by the Consortium in its Request for Arbitration dated 30th March, 1990 and after considering each of the claims separately and in particular reference to the Articles 5. 1. 4, 5. 7. 1 and 5. 7. 2. etc. Anil Dev Singh, J. while delivering the judgment took pain in considering each of the claims made by the Consortium in its Request for Arbitration dated 30th March, 1990 and after considering each of the claims separately and in particular reference to the Articles 5. 1. 4, 5. 7. 1 and 5. 7. 2. etc. concluded that these claims were not in accordance with the provisions of the Agreement and therefore, the Consortium will not have the access to the arbitrator mechanism qua these claims. It was further observed that disputes have to be raised in accordance with the provisions of the Agreement to attract the applicability of the arbitration clause. If no such dispute exist the arbitration clause is not applicable. ( 35 ) IN view of the clear finding, it can not be said that this court has no jurisdiction to look into the maintainability of other claims now filed by the Consortium by way of summary of claims This court is competent to find out whether these claims are covered by arbitration agreement or not and whether these claims are directly or indirectly connected with the claims preferred in Section VI covered by prayer clause 8 (1 ). If so, then these cannot be referred to arbitration. ( 36 ) NOW taking up each of the claim now put up by the Consortium in its letter dated 18th July, 1994, it cannot be said that so far as claims No. 7. 1 (a) (b) and (c), 7. 2 and 7. 4 are concerned, there is no dispute that these are to be adjudicated upon by the Arbitral Tribunal constituted by the ICC. Taking the issue 7. 3 to be determined regarding breach of obligation by the GAIL, no details have been furnished and for failure to make payment under the contract in timely fashion. This was the precise claim made under Section 6 and consequential prayer 8 (1) of the Request for Arbitration which has already been declined by this court vide judgment dated 15th October, 1993. ( 37 ) BY the Summary of the claimant s claim dated 18th July, 1994, the Consortium wants to incorporate the claim of damages together with interest on account of withholding of the amounts by the present petitioner. ( 37 ) BY the Summary of the claimant s claim dated 18th July, 1994, the Consortium wants to incorporate the claim of damages together with interest on account of withholding of the amounts by the present petitioner. In other words, by this claim, the Consortium is alleging breach on the part of the petitioner and claim damages which claim of breach has already been declined by this court vide its judgment dated 15th October, 1993. For this, reference can be had to the statement of the claimant s case in Section VI of the Consortium letter of request dated 30th March, 1990 which reads as under: "substantial disputes have arisen between the Claimants and the owner on the ground that the owner has been in breach of its obligations under the contract between the parties and further has failed to pay the Claimants all the sums due to them under the terms of the Contract. " ( 38 ) THIS shows that present claim No. 7. 3 (b) was the claim before the court in Section VI when the Consortium alleged breach on account of non-payment of the amount due to the claimant, but the court declined to refer the same. Therefore, so far as the claim No. 7. 3 is concerned, that is squarely covered by the judgment of this court of 15th October, 1993 and cannot be referred to Arbitral Tribunal. ( 39 ) SO far as claim No. 7. 5 is concerned, this court in its judgment dated 15th October, 1993 has already held that for withholding the amount and for non-payment, those are hit by Article 5. 7. 1 and, therefore, cannot be adjudicated upon as qua those claims there does not exist any arbitration clause. ( 40 ) SO far as determination of issues 7. 6 and 7. 7 are concerned, these are also directly or indirectly linked with claims made in Section VI and which have already been declined. The issue of Final Certificate is directly linked with the question of Completion Certificate and is dependent inter alia upon the satisfaction of the Engineer about the work having been duly and properly maintained and performance of all obligations under the Contract. A Final Certificate is to be issued after the expiry of the period of liability and total integration of the system which had not been achieved. A Final Certificate is to be issued after the expiry of the period of liability and total integration of the system which had not been achieved. The period of liability is linked with the Completion Certificate under Article VI of the General Conditions. According to the provisions of the Contract in the absence of total integration no completion in respect of Sections IV and VI of the work is to be issued. The dispute with regard to the issue of Completion Certificates which are directly linked with the Final Certificate squarely arises from the subject matter of Section VI of the Request for Arbitration of 30tb March, 1990 and pertains to matters of which determination has been barred by the judgment of 15th October, 1993. Any consideration for issue of Final Certificate or recognition of final acceptance is directly linked with the completion of the work and the issue of Completion Certificate which forms subject matter of Section VI of the Request for Arbitration which section contains the Consortium s Statement of Case and has been determined as non-arbitrable and is barred from being referred to arbitration, ( 41 ) THEREFORE, the question of adjustment to the contract price in relation to the reduction of works has already been dealt with in the judg- ment of 15th October, 1993 wherein the court opened that the Consortium quoted the price for the work in question after talcing into consideration the nature and the extent and the likely delays in the execution of the work nor any compensation is payable to contractor and no adjustment in contract price is envisaged on account of reduction in work. In this regard, reference was made to Article 4. 18. 2 of the contract, which envisaged the possibility that work may be required to be temporarily suspended stopped/hindered for short durations out of various reasons/constraints. Therefore, this court having already held that this is not referable the fresh claim made by the Consortium, therefore, not covered by the Arbitration Agreement. Any claim on account of extra/additional payment on account of the breaches alleged cannot be referred toarbitration. As these very claims have already been held to be not arbitrable so long that decision remain, which is binding on the parties. Therefore, it is not open for the Consortium to introduce this claim which has already been declined to be referred. Any claim on account of extra/additional payment on account of the breaches alleged cannot be referred toarbitration. As these very claims have already been held to be not arbitrable so long that decision remain, which is binding on the parties. Therefore, it is not open for the Consortium to introduce this claim which has already been declined to be referred. ( 42 ) SO far as claim relating to reduction in scope of work covered under claim 7. 7 is concerned, it is directly linked with the subject matter of Claim No. (f) in the Consortium s Request for Arbitration. In this regard reference can be made to illustration 1 under claim f forming part of Section VI of Consortium s Request for Arbitration where questions have been raised in respect of reduction in the scope of work by cancellation, deletion and/or taking out of the scope of work of Section of the pipeline and all related facilities running between Boreri and Swai Madipur. ( 43 ) CONSORTIUM had raised their claim in respect of the reduction in the scope of work in Section VI of the Request for Arbitration as a part of Claim f which aggregated to US$ 75 million. The claim has been specifically barred from being referred to arbitration by the judgment dated 15th October, 1993. It is, therefore, not open for the Consortium to put up this claim though in different form but of the same substance. ( 44 ) SO far claims No. 7. 3 (a) and 7. 8 is concerned, no details have been furnished with regard to alleged breaches by the GAIL of the Arbitration Agreement. On furnishing of the details, the GAIL will have an opportunity to question the validity, admissi bility and entertainability of such claim including of limitation. With these observations, it can be said that this claim can be filed by the Consortium subject to above rider. ( 45 ) HENCE, from the above discussion, it is clear that claims No. 7. 1, 7. 2, 7. 4 and 7. 9 are referable to arbitration. So far as claims 7. 3 (a) and 7. 8 are concerned, they will be entertained subject to the observations made above. So far as claims No. 7. 3 (b), 7. 5, 7. 6 and 7. 1, 7. 2, 7. 4 and 7. 9 are referable to arbitration. So far as claims 7. 3 (a) and 7. 8 are concerned, they will be entertained subject to the observations made above. So far as claims No. 7. 3 (b), 7. 5, 7. 6 and 7. 7 are concerned, they are not referable and cannot be referred to Arbitral Tribunal as they are directly or indirectly covered by the decision of this court dated 15th October, 1993, by which these were declined to be referred to arbitration. ( 46 ) NOW turning to the argument of Mr. Kapur that the petition of the GAIL is not admissible and is liable to be stayed under Section 3 of the FARE Act, I am afraid this argument has no force. This court vide judgment dated 15tb October, 1993 considered various provisions of FARE Act as well as the New York Convention, Geneva Protocol op Arbitration Clauses of 1923 and International Convention on the execution of Foreign Arbitral Awards of 1927 and the provisions of the Resolution of ECOSOC and the facts of this case. After dealing those provisions and the facts of the case at length, this court came to conclusion that the law of India would govern the contract and the substance of the dispute. Further held that the award, if any, arising out of the Arbitration Agreement inter se these parties would be a domestic award not governed by the FARE Act. It was also held that according to Section 3 of the FARE Act, the courts in India are under an obligation to stay the legal proceedings in respect of the matters arising out of the Arbitration Agreements of the kind covered by Article II of the New York Convention subject of course to the exceptions mentioned therein. It was also held that according to Section 3 of the FARE Act, the courts in India are under an obligation to stay the legal proceedings in respect of the matters arising out of the Arbitration Agreements of the kind covered by Article II of the New York Convention subject of course to the exceptions mentioned therein. ( 47 ) SECTION 3 of the FARE Act which is reproduced as under stipulates the limits subject to which the proceedings have to be stayed ; Section 3 : "stay of proceedings in respect of matters to be referred to arbitration- Notwithstanding anything contained in the Arbitration Act, 1940, or in the Code of Civil Procedure, 1908, if any party to an agreement to which Article II of the Convention set forth in the Schedule applies, or any person claiming through or under him commences any legal proceedings in any court against any other party to the agreement or any person claiming through or under him in respect of any matter agreed to be referred to arbitration in such agreement, any party to such legal proceedings may, at any time after appearance and before filing a written statement or taking any other step in the proceedings, apply to the court to stay the proceedings and the court, unless satisfied that the agreement is null and void, inoperative or incapable of being performed or that there is not, in fact, any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings. " ( 48 ) SECTION 3 makes it obligatory on the court to stay the legal proceedings provided conditions specified therein are fulfilled. Those conditions have been culled out by the Supreme Court in "renu Sagar Power Ltd. v. General Electric Company Ltd. 2, namely : (I) there must be an agreement to which Article II of the Convention set forth in the Schedule applies, (ii) a party to that agreement must commence legal proceedings against another party thereto, (iii) the legal proceedings must be in respect of any matter agreed to be referred to arbitration in such agreement, (iv) the application for stay must be made before filing the written Statement or taking any other steps in the legal proceedings, 2. AIR 1985 SC 1156 , (v) the court has to be satisfied that the agreement is valid, operative and capable of being performed ; (this relates to the satisfaction about the existence and validity of the arbitration agreement), (vi) the court has to be satisfied that there are disputes between the parties with regard to the matters agreed to be referred ; (this relates to scope of the arbitration agreement touching the issue of arbitrability of the claims ). ( 49 ) THIS court has already held that the matters which are not covered by the arbitration clause cannot be referred to arbitrator and, therefore, the provisions of Section 3 will not be attracted. Relying on the observation of this court, I can say that the proceedings cannot be stayed because para 7. 3 (b), 7. 5, 7. 6, 7. 7 since do not under the arbitration agreement, as already held by this court in its judgment dated 15th October, 1993, therefore, qua them there is no Arbitration Agreement and cannot be referred to Arbitral Tribunal. Hence, provisions of Section 3 of the FARE Act do not apply in these circumstances. ( 50 ) WITH these observations, the petition GAIL as well as of the Consortium stands disposed. Parties are left to bear their own costs.