CASE ANALYSIS:

WESTERN MAHARASHTRA
DEVELOPMENT CORPORATION
V.
BAJAJ AUTO LIMITED
[2010] 154 COMPCAS 593 (BOM)

C. P. C – III
(ALTERNATIVE DISPUTE RESOLUTION)
PROJECT

NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

SUBMITTED BY: ADHITYA SRINIVASAN

ROLL NO: 2008 B.A. LL. B 55

SUBMITTED TO: PROFESSOR (DR.) S. SURYAPRAKASH

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 TABLE OF CONTENTS

INTRODUCTION 3

MATERIAL FACTS 4

ARBITRAL PROCEEDINGS 6

CONTENTIONS OF THE PETITIONERS 8

CONTENTIONS OF THE UNION OF INDIA 10

RELEVANT STATUTORY PROVISIONS 12

REASONING OF THE COURT 13

DISCOUNT OF 30% IS VALID 13

REASONABLE PRICE IS A QUESTION OF FACT 13

METHOD OF VALUATION IS VALID 13

TRIBUNAL IS EMPOWERED TO RULE ON ITS OWN JURISDICTION 14

THE SPECIFIC QUESTION DOCTRINE 14

INTERPRETATION OF S. 111A OF THE COMPANIES ACT, 1956 15

RATIO DECIDENDI AND ORDER OF THE COURT 16

JUDICIAL DISCUSSION 17

CRITICAL COMMENT 19

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 INTRODUCTION

Overview
In brief, this project is a cane analysis on the judgment of the Hon’ble Bombay High Court in

Western Maharashtra Development Corporation v. Bajaj Auto Limited. The opinion of the

Learned Single Judge, Dr. Y. V. Chandrachud, J discusses in detail the operation of s. 34 of the

Arbitration and Conciliation Act, 1996 (“ACA Act” in short). The situation which invited the

provision of this Act was the interpretation of s. 111A of the Companies Act, 1956 pertaining to

“free transferability” of shares. The moot question in the judgment was whether recourse can be

taken before a Court to strike down an arbitral award in an instance where the arbitrator had

enunciated his award based on an interpretation (erroneous or otherwise) of the Companies Act,

1956 and which affected the rights of both parties depending on the interpretation of the said

provision. In order to fully appreciate the scope and width of the judgment of the learned Single

Judge, it is important to peruse the material facts, contentions of the parties and reasoning of the

Court. At this juncture it would be prudent to also state that parts of the judgment in this case

have been overruled by a Division Bench of the Bombay High Court in Messer Holdings v/s.

Shyam Madan Ruia and Ors. Nevertheless, these portions do not affect the judgment of the Court

on the point relating to s. 34 of the ACA.

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 MATERIAL FACTS

1. On 2nd October 1974, a Protocol Agreement was entered into between the Petitioner and
the Respondent pursuant to which Maharashtra Scooters Ltd. (MSL) was incorporated
and registered under the provisions of the Companies' Act, 1956.

2. MSL is a Public Company and its shares are listed on the Bombay Stock Exchange and
the National Stock Exchange.

3. The Petitioner is an undertaking of the government of Maharashtra. In accordance with

the terms of the Protocol Agreement, the Petitioner holds 27% of shareholding of MSL
while the Respondent continues to hold 24%. The balance 49% is held by the public.

4. The initial authorized capital of MSL was Rs. 200 lakhs consisting of Rs. 150 lakhs in
equity shares and Rs. 50 lakhs in cumulative redeemable preference shares. By the
agreement, it was agreed that the shareholding of the Petitioner, the Respondent and of
the public shall be in the proportion set out earlier.

5. Clause 7 of the Protocol Agreement: “If either party desires to part with or transfer its
shareholding or any part thereof in the equity share capital of Maharashtra Scooters
Limited, such party shall give first option to the other party for the purchase of such
shares at such rates as may be agreed to between the parties or decided upon by
arbitration. If the other party is willing to purchase the shares but considers the rate
proposed to be too high or unacceptable, it shall, within 30 days from the receipt of the
notice, give written intimation to the party giving notice of its intention to purchase the
shares and the question of rate shall be referred to arbitration of a sole arbitrator if agreed
to by both the parties or two arbitrators one to be appointed by each party in accordance
with the provisions of the Indian Arbitration act. “

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6. The agreement stipulated that of the seven signatories to the Memorandum and Articles
of Association, four would be nominated by the Petitioner and three by the Respondent.
The Board of Directors was to consist of nine Directors, of which five were to be
nominees of the Petitioner and four of the Respondent. The appointment of the Chairman
of the Board had to be made from the names suggested by the Respondent.

7. Between 1986 and 2003, the Respondent had been requesting the Petitioner to divest its
shareholding in MSL in its favour. By a letter dated 9th April 2003, the Petitioner offered
to sell its shares to the Respondent, at a price of Rs. 232.20 per share. By a reply dated
3rd May 2003, the Respondent confirmed its interest in buying the shares, but stated that
the price that was offered by the Petitioner was not acceptable.

8. The Respondent made a counter offer on the price of Rs. 75/ per equity share of MSL
stating that it reflected a premium of 5.6% over the prevailing market price as on 6th June
2003. By a letter dated 31st July 2003, the Respondent stated that in the event that the
price offered of Rs. 75/ per share was not acceptable to the Petitioner, the next step in
terms of Clause 7 of the Protocol Agreement was to initiate the arbitral process.

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 ARBITRAL PROCEEDINGS

1. On 29th December 2003, a joint reference to arbitration was made by the Petitioner and by
the Respondent to Mr. Justice A.V. Savant.

2. The terms of reference inter alia were as follows:

A. The appointment of "Sole Arbitrator" is made jointly by BAL and WMDC, in
terms of the Clause No. 7 of the "Protocol Agreement" dated 2 October 1974,
between WMDC and BAL, the copromoters of MSL.
B. BAL had expressed its willingness to buy the stake held by WMDC in MSL.
WMDC had indicated its desire to sell its shareholding in MSL. However, price
per share remained in dispute and hence in accordance with clause No. 7 of the
protocol agreement, "the question of rate" for the purchase by BAL of equity
shares in MSL held by WMDC, is hereby referred to the Sole Arbitrator.
C. The arbitrator shall take into account the Protocol Agreement covenants and all
other concerned factors which may have impact on the share price of MSL shares,
while giving his arbitral award.

3. On 6th April 2004, an application was filed by the Petitioner, questioning the jurisdiction
of the Arbitrator. The contention of the Petitioner was that (i) The Protocol Agreement
dated 2nd October 1994 was illegal and void on the ground that (a) the agreement was a
forward contract prohibited by the Securities Contract Regulation Act; and (b) The
agreement contained restrictions on the transferability of the shareholding of MSL which
were violative of the provisions of Section 111A read with Section 9 of the Companies'
Act, 1956 and hence, void; (ii) The joint reference dated 29th December 2003, was void
inter alia on the ground that it proceeded on the premise that a concluded contract existed
between the Petitioner and the Respondent though as a matter of fact, no contract had been
arrived at since neither of the parties accepted the offer, nor had they agreed to a cut off
date for valuation of shares.

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4. The Arbitrator ruled on the preliminary objection to his jurisdiction, on 21st July 2004.
While rejecting the application, the Arbitrator stated that the reasons for the rejection
would follow and form part of the award. The Arbitrator noted that on 9th April 2003, the
Petitioner made a specific offer to the Respondent in terms of Clause 7 of the Protocol
Agreement and in terms of the decision of the Government of Maharashtra to sell its equity
shareholding in MSL to the Respondent at Rs. 232.20 per share.

5. The Arbitrator held that the correspondence exchanged between the parties, between 9th
April and 6th June 2003, left no manner of doubt that there was a concluded contract under
which the Petitioner was to sell its shares to the Respondent and the Respondent was to
purchase those shares and the contract was concluded on 3rd May 2003. The Arbitrator
held consequently, the relevant date for the purpose of valuation would be 3rd May 2003,
which was the date on which the contract was concluded.

6. By his arbitral award dated 14th January 2006, the Arbitrator declared that the rate at
which 30,85,712 equity shares of MSL, held by the Petitioner are to be valued as on 3rd
May 2003, for the purposes of sale to the Respondent, is Rs. 15 1.63 per share.

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 CONTENTIONS OF THE PETITIONERS

1. Exceeding jurisdiction: The Arbitrator exceeded his jurisdiction in deciding the date for
valuation of the shares of MSL, proposed to be transferred by the Petitioner to the
Respondent. [Para 13]

2. No discount to be applied: The Arbitrator neither adjudicated upon, nor decided why a
discount should be applied to the BAL shares. The Petitioner was selling 27% stake in
MSL to the Respondent as a result of which the Respondent would obtain a majority
holding in MSL and would also as a result obtain 3.4% of the equity capital in BAL.
Hence, the value of the BAL shares held by MSL cannot be subjected to a discount,
particularly since the Respondent had a special interest in the acquisition of a 27% stake
in MSL. [Para 13]

3. Context of discount: The invocation of a rationale of a 20 to 40% discount as a reason

by the Arbitrator to apply a 30% discount discloses a total nonapplication of mind or
perversity, on the part of the Arbitrator, considering the context in which the discount of
20 to 40% came to be stated. The fact that 20 to 40% of the discounted price of MSL
shares is translated to a percentage discount in the holding of BAL shares is such as to
shock the conscience of the Court. [Para 13]

4. Direct financial loss:  The application of a discount to the BAL holding and the use of
only the book value in the nonBAL holding affects the rights of the Petitioner and causes
a direct financial loss and injury. The value of the discount applied is Rs. 50 crores in the
shares of BAL alone. [Para 13]

5. Evidence out of scope of arbitration:  The evidence of Mr. Bansi Mehta was liable to
be considered irrelevant, nongermane and extraneous to the reference after his answer to
questions 14 to 16 in the course of his evidence. The Arbitrator has to decide a civil
dispute on a balance of probabilities and he must of necessity decide on some evidence. If
the evidence of one side is discarded and the evidence of the other side is admittedly not

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 under Clause 7 of the Protocol Agreement, on which he is called upon to make a
valuation, the Arbitrator should have come to the conclusion that on the evidence, he
could not value at all. [Para 13]

6. Protocol Agreement is void: The Protocol Agreement is illegal and any determination
under the agreement is void. The effect of the Protocol Agreement is to create a right and
preemption in MSL which is a listed Company. The Protocol Agreement is incorporated
in the Articles of Association of MSL. The shares of a Public Company are declared by
Section 111A of the Companies' Act, 1956 to be freely transferable. The Articles of
Association must yield to the principle of free transferability embodied in
Section 111A and the preemptive right is inoperable. On this defence, there was virtually
no adjudication by the Arbitrator. [Para 13]

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 CONTENTIONS OF THE RESPONDENT

1. Offer and acceptance: n pursuance of the formal offer made by the Petitioner under
Clause 7 of the Protocol Agreement to divest itself of its 27% holding in MSL and to
transfer it to the Respondent, the Respondent accepted the offer by its letter dated 3rd
May 2003. The joint reference by the parties to the Arbitrator on 29th December 2003
postulates that a contract for the sale of the Petitioner's holding in MSL to the Respondent
existed though there was a dispute about the rate. [Para 14]

2. ACA does not contemplate an appellate review or reappraisal of evidence:

Considering the scope of Section 34 of the Arbitration and Conciliation Act, 1996, an
appellate review of an arbitral award is not permissible in law. The decision of the
Supreme Court in ONGC Ltd. v. Saw Pipes Ltd. : (2003) 5 SCC 705 does not
contemplate an appellate review or suggest a reappraisal of evidence [Para 14]

3. Arguendo, the evidence of Bansi Mehta is valid:  The arbitral award furnishes a valid
basis from the evidence for applying a discount of 30% in the facts of the case. The
evidence of Mr. Bansi Mehta suggested that a discount between 28 to 40% would have to
be allowed on a conceptual basis whereas on an empirical comparison based on market
capitalization, a discount between 56 to 91% would have to be taken. The Arbitrator has
held that the discount should be no less than 30% in the facts of this case. The reference
by the Arbitrator to the report of Mr. Raghuram indicating a 20 to 40 % discount is
erroneous, because this was a reference to the valuation of MSL shares. But merely
because one ground which is relied upon by the Arbitrator suffers from an error of fact,
would not detract from the validity of the award. There was a wealth of evidence before
the Arbitrator in support of the finding that the discount of 30% is valid. [Para 14].

4. Evidence is within scope of Clause 7 of the Protocol Agreement: Clause 7 of the

Protocol Agreement does not provide any particular method of valuation. Mr. Bansi
Mehta, therefore, stated in his cross-examination that the classical method has been
followed. Clause 7 provides for a fixation of the rate at which the shares would be sold,

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 which lies in the domain of the Arbitrator. In any event, this relates to an appreciation of
the evidence. [Para 14]

5. Question of validity of Protocol Agreement was not in the terms of reference: arties
made a specific reference of a question of law by the application dated 6th April 2004,
which was responded to and decided. The question as regards the legality of Clause 7 of
the Protocol Agreement vis-a-vis Section 111A of the Companies' Act, 1956, was not in
the original reference. Yet, the question was specifically referred to the Arbitrator during
the pendency of the reference. The decision of the Arbitrator was invited as a
jurisdictional issue, before the Arbitrator considered the merits of the dispute. Hence, the
determination of the Arbitrator is final and cannot be enquired into [Para 14]

6. Arguendo, the restriction contained in the Protocol Agreement is valid: In any event,
the Arbitrator has followed the decision of the Supreme Court in M.S. Madhusoodhanan
v. Kerala Kaumudi Pvt. Ltd. 2003 117 Comp Cas 19. 9. The restriction in the present
case, imposed by Clause 7 of the Protocol Agreement is valid, because it is not one that
binds all shareholders, but which binds two shareholders in a specified contingency. The
restriction is contained in the Articles of Association. Section 111A of the Companies'
Act, 1956 does not prohibit agreements entered into between specific shareholders
regarding specific shares, particularly when incorporated in the Articles of Association.
[Para 14]

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 RELEVANT STATUTORY PROVISIONS

34. Application for setting aside arbitral award.

(1) Recourse to a Court against an arbitral award may be made only by an application for setting
aside such award in accordance with sub- section (2) and subsection (3).
(2) An arbitral award may be set aside by the Court only if-
(b) The Court finds that-
(i) The subject- matter of the dispute is not capable of settlement by arbitration under the law for
the time being in force, or
(ii) The arbitral award is in conflict with the public policy of India.
Explanation.- Without prejudice to the generality of sub- clause (ii), it is hereby declared, for the
avoidance of any doubt, that an award is in conflict with the public policy of India if the making
of the award was induced or affected by fraud or corruption or was in violation of section 75 or
section 81.

28. Rules applicable to substance of dispute.

(1) Where the place of arbitration is situate in India,-
(a)In an arbitration other than an international commercial arbitration, the arbitral tribunal shall
decide the dispute submitted to arbitration in accordance with the substantive law for the time
being in force in India;

111A of the Companies Act, 1956: Rectification of register on transfer.

(1) In this section unless the context otherwise requires, “company” means a company other than
a company referred to in sub-section (14) of section 111 of this Act.

(2) Subject to the provisions of this section, the shares or debentures and any interest therein of a
company shall be freely transferable

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 REASONING OF THE COURT

Discount of 30% is valid and founded on a wealth of evidence

Section 28 of the Act postulates that the arbitral Tribunal has to decide the dispute submitted to
arbitration in accordance with the substantive law for the time being in force, in India. In the
present case, the discount of 30% that has been applied to the BAL holding, is not adopted by the
arbitral Tribunal as amiable compositeur or on notions fairness and equity. The discount is
founded upon considerations which are germane and which were based on the evidence on
record. The sufficiency and quality of the evidence, are matters for the arbitral Tribunal to
determine. The arbitral Tribunal accepted the evidence of Mr. Bansi Mehta for valid reasons,
recording that the cross-examination has not resulted in any significant dilution of the evidence.
But, as already discussed earlier, there was a wealth of evidence before the Arbitrator, which was
accepted by him to demonstrate that a discount of 30% was susceptible both on a conceptual and
an empirical basis. The challenge on this ground is, therefore, lacking in substance. [Para 30]

Reasonable price is a question of fact

The contract may provide for the immediate delivery of the goods or immediate payment of the
price or both, or for the delivery or payment by instalments, or that the delivery or payment or
both shall be postponed. The price in a contract of sale can be fixed under Section 9(1) by the
contract or may be left to be fixed in a manner thereby agreed or that may be determined by the
course of dealing between the parties. Where the price is not determined in accordance with the
provisions of subsection (1) of Section 9, the buyer shall pay the seller a reasonable price and
what is reasonable is a question of fact, determined on the circumstances of each case. [Para 33]

Method of valuation is valid

In his answer, he clarified that in the absence of any particular provision concerning the method
of valuation he would adhere to the classical concept of an objective fair valuation between a
willing seller and a willing buyer. His evidence was that when a valuation is required, and no
specific formula or guideline has been prescribed, the approach is to ascertain, what can be a fair
value between a willing, (but not over eager) buyer and a willing (but not a distress) seller. The
contention that the report of Mr. Mehta must be discarded because, he has not carried out the

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valuation under Clause 7 lacks substance. Clause 7 of the Protocol Agreement does not provide
for any particular method of valuation. Consequently, Mr. Mehta stated, in the course of his
cross-examination, that the classical method had been followed. Clause 7 of the Agreement
provides for a fixation of the rate, which lies in the domain of the Arbitrator. That in any case
lies in the realm of the appreciation of evidence. [Para 32]

Arbitral Tribunal is empowered to rule on its own jurisdiction

The Arbitration and Conciliation Act, 1996, empowers the arbitral Tribunal, by Section 16, to
rule on its own jurisdiction, including ruling on any objection with respect to the existence or
validity of the arbitration agreement. For that purpose, an arbitration clause, which forms part of
the contract is to be treated as an agreement independent of the other terms of the contract and a
decision of the arbitral Tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause. The arbitral Tribunal has to decide on a plea that it does not
have jurisdiction and where the Tribunal takes a decision rejecting the plea, it has to continue
with the arbitral proceedings and make an arbitral award. A party aggrieved by the arbitral award
is empowered to make an application for setting aside the award in accordance with the
provisions of Section 34. That is the scheme legislated upon by Parliament in the Arbitration and
Conciliation Act, 1996, in regard to the empowerment of an arbitral Tribunal to rule on its
jurisdiction. [Para 37]

The specific question doctrine

If a question of law is specifically referred and it is evident that the parties desire to have a
decision from the arbitrator about that rather than one from the Courts, then the Courts will not
interfere, though even there, there is authority for the view that the courts will interfere if it is
apparent that the arbitrator has acted illegally in reaching his decision, that is to say, if he has
decided on inadmissible evidence or on principles of construction that the law does not
countenance or something of that nature. The Petitioner argued that the Protocol Agreement was
void for several reasons, among them being, that it placed restrictions on the transferability of the
shareholding of MSL, in violation of the provisions of Section 111A read with Section 9 of the
Companies' Act, 1956. This cannot amount to a reference of a specific question of law. Nor for
that matter, is there intrinsic material to lead the Court to the conclusion that the parties intended

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to be bound by the decision of the Arbitrator, so as to oust the jurisdiction of the Court under
Section 34 of the Arbitration and Conciliation Act, 1996. Clearly, there was no reference on a
specific question of law, so as to render the decision of the Arbitrator binding, or beyond the pale
of the reviewing Court under Section 34. [Para 43]

Interpretation of s.111A of the Companies Act, 1956

Section 111A of the Companies' Act, 1956, provides that subject to the provisions of the Section,
"the shares or debentures and any interest therein of a Company shall be freely transferable". The
provision contained in the law for the free transferability of shares in a public Company is
founded on the principle that members of the public must have the freedom to purchase and,
every shareholder, the freedom to transfer. The incorporation of a Company in the public, as
distinguished from the private, realm leads to specific consequences and the imposition of
obligations envisaged in law. The effect of Clause 7 of the Protocol Agreement is to create a
right of preemption between the Petitioner and the Respondent in the event that either of them
seeks to part with or transfer its shareholding in MSL. The effect of a clause of preemption is to
impose a restriction on the free transferability of the shares by subjecting the norms of
transferability laid down in Section 111A [Paras 45, 53 & 54].

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 RATIO DECIDENDI AND ORDER OF THE COURT

Ratio Decidendi
“Where the arbitral award has been decided and pronounced in subversion of substantive
provisions of statutory law, it is liable to be set aside as being illegal for contravening public
policy.”

“Section 111A of the Companies Act, 1956 postulates free transferability of security in a
company and prima facie does not recognize contracts of pre-emption within its scope.”

Order of the Court

1. The award of the Learned Arbitrator would have to be set aside.

2. The Petition is accordingly made absolute in terms of prayer Clause (a) by setting aside
the award.

3. There shall be no order as to costs.

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 JUDICIAL DISCUSSION

In ONGC v. Saw Pipes (2003) 5 SCC 705 the Supreme Court held that if an award is in
contravention of the provisions of the Act, it is subject to judicial intervention and can be set
aside. 

The judgment in Commissioner of Wealth Tax v. Mahadeo Jalan : (1972) 86 ITR 621 lays
down that leaving aside a distress sale, the factors which are likely to affect the value of shares
are: (i) The profit earning capacity of the Company; (ii)The capacity of the Company to maintain
those profits or a reasonable return for capital invested; (iii) The prospects for capitalization of
its earning by declaring bonus shares and in a case of a financially sound Company, the
prospects for the issuance of a rights issue where existing shareholders can obtain shares for a
price less than the market value, increasing the yield on investment.

Since the judgment of the Supreme Court in Seth Thawardas Pherumal v. Union of India  :
AIR 1955 SC 468 it is now a settled principle of law that a distinction has to be made between
those cases in which a question of law is specifically referred for the decision of the Arbitrator
and those in which a question of law incidentally arises while deciding the question that is
actually referred. 

In the subsequent judgment of the Supreme Court in Tarapore and Co. v. Cochin Shipyard
Ltd.  : (1984) 2 SCC 680, Thawardas Pherumal's case was regarded as being an authority for the
proposition that where the parties specifically agreed to refer a specific question of law for the
decision of the Arbitrator and agreed to be bound by it, the Court cannot set aside the award on
the ground of an error of law apparent on the face of it even though the decision of the Arbitrator
may not be in accord with the law as understood by the Court.

The Supreme Court held in V.B. Rangaraj v. Gopalkrishnan (1992) (1992) 1 SCC 160 that an
agreement between the members of a family, who were the only shareholders of a private
Company, which imposed a restriction on the shareholders' right to transfer the shares, was
contrary to the Articles of Association and was not binding on the Company or its shareholders.
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In M.S. Madhusoodhanan v. Kerala Kaumudi (2003) 117 Comp Cas 19 it was held that “It is
settled law that shares are movable properties and are transferable. As far as private companies
like Kerala Kaumudi are concerned, the Articles of Association restrict the shareholder's right to
transfer shares and prohibit any invitations to the public to subscribe for any shares in, or
debentures of the company. This is how a "private company" is now defined in Section 3(1)
(iii) of the Companies' Act, 1956 and how it was defined in Section 2(13) of the -1913 Act.”.

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 CRITICAL COMMENT

The judgment of Western Maharashtra is important in many respects. It is important in the

context of arbitration because it identifies one of the various instances when an arbitral award
can be set aside by the Court. In a different context, it also forms part of the now-famous body of
case law on the point of interpretation of s.111A of the Companies Act, 1956 and whether that
provision includes within its ambit the right to pre-emption i.e. call options and put options.

First on the point of setting aside arbitral awards – the ACA specifically grants power to the
Courts to set aside arbitral awards if such awards are hit by any of the provisions contained under
s. 34 of the ACA. Section 34(2) of the ACA allows an award to be set aside on grounds of
violating public policy. One of the clearest violations of public policy is when the arbitral award
is pronounced without correctly understanding or interpreting the substantive law of the land – in
this case the Companies Act, 1956.

The challenge against the arbitral award was structured at different layers. The first challenge
was to have the award set aside on grounds that the discount awarded by the arbitrator was
outside the scope of the arbitration clause. This challenge failed as the Court held that the
discount had been founded on a wealth of evidence. The second challenge pertained to whether
the price determined and the method of valuation was valid. This challenge also failed as the
Court held that the Arbitrator was empowered to decide both of these things as questions of fact.

The third and final challenge was the challenge premised on the specific question doctrine. The
Respondent alleged that the move by the Petitioner to establish that the Protocol Agreement was
void was an issue upon which the arbitrator had ruled already and could not be revisited in Court.
However, the Court held on this issue that the reference made to this question was not binding in
nature and the Court could therefore rule on it.

Subsequently, the Court held that the import of s. 111A of the Companies Act provided for free
transferability of shares and this automatically precluded the right of pre-emption. Thus the
Protocol Agreement was held to be void and the arbitral award set aside.

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