The Existential Conundrum Of An Arbitration Agreement
5 years, 8 months ago

The Existential Conundrum Of An Arbitration Agreement

Live Law  

On 18th July 2018, a bill titled The Arbitration and Conciliation Bill, 2018 was introduced in the Lok Sabha. The newly inserted Section 11 which confines the Supreme Court or High Court's role "to the examination of the existence of an arbitration agreement" in an application filed by a party under Section 11, or was omitted by clause 3 of the Bill since an arbitration institution or panel would have appointed arbitrators instead of the Court. The legislative intent behind Section 11 can be found clause 6 of the SOR of the 2015 Amendment which states that "while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues." All that the said sub-section states is that the Court while considering an application under Section 11 should "confine to the examination of the existence of an arbitration agreement." After referring to Section 11, Section 16, the relevant portion of the 246th Law Commission Report, and Duro Felguera, the Supreme Court in paragraph 7 of Vidya Drolia "noticed that "validity" of an arbitration agreement is, therefore, apart from its "existence" " and the Court was of the opinion that a Bench of three Judges needs to authoritatively decide "whether the word "existence" would include weeding-out arbitration clauses in agreements which indicate that the subject-matter is incapable of arbitration."

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History of this topic

Substantive Objections On Validity Or Existence Of Arbitration Agreement Can Be Adjudicated By Tribunal U/S 16 Of Act: Bombay HC
1 day, 2 hours ago

Substantive Objections On Validity Or Existence Of Arbitration Agreement Can Be Adjudicated By Tribunal U/S 16 Of Act: Bombay HC

Live Law  

The Bombay High Court bench of Justice Somasekhar Sundaresan has held that substantive objections concerning the validity and existence of an arbitration agreement can be adjudicated by the Arbitral Tribunal and not by the court under section 11 of the Arbitration Act. In doing so, the Arbitral Tribunal may also rule on any objections with respect to the existence or …

Whether Arbitration Agreement Has All Essential Elements Can Better Be Decided By Tribunal U/S 16 Of A&C Act: Rajasthan High Court
1 month ago

Whether Arbitration Agreement Has All Essential Elements Can Better Be Decided By Tribunal U/S 16 Of A&C Act: Rajasthan High Court

Live Law  

The Rajasthan High Court bench of Justice Sudesh Bansal has held that the issue of validity of arbitration agreement more particularly in respect of having essential elements of the arbitration agreement, can better be considered and decided on merits by the arbitration tribunal under section 16 of the Arbitration Act. They also submitted that Clause 22 of the NIB cannot …

Section 29A Of Arbitration & Conciliation Act, 1996: Complications More Than Cure
1 month ago

Section 29A Of Arbitration & Conciliation Act, 1996: Complications More Than Cure

Live Law  

This article is an attempt to highlight the complexities involved under Section 29A of the Arbitration & Conciliation Act, 1996. Ltd. v. General Manager & Anr., reiterated the principle that the extension of mandate under Section 29A shall be only for a “sufficient cause”. In Larsen and Toubro Ltd. v. IIC Limited and Anr., it is held by the Delhi …

Referral Court Has Limited Role U/S 11 Of Arbitration Act To Verify Existence Of Arbitration Agreement: Rajasthan High Court
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1 month, 3 weeks ago

Referral Court Has Limited Role U/S 11 Of Arbitration Act To Verify Existence Of Arbitration Agreement: Rajasthan High Court

Live Law  

The Rajasthan High Court bench of Justice Sudesh Bansal affirmed that the scope of arbitration application, in view of Section 11 of the Arbitration Act, 1996 is confined and limited to the extent of examining the existence of arbitration agreement between the parties for resolution of dispute. Brief Facts Applicant has filed instant arbitration application under Section 11 of the …

S. 11(6) A&C Act | Referral Courts Should Limit Its Enquiry To Prima Facie Existence Of Arbitration Agreement : Supreme Court
Trending News
1 month, 3 weeks ago

S. 11(6) A&C Act | Referral Courts Should Limit Its Enquiry To Prima Facie Existence Of Arbitration Agreement : Supreme Court

Live Law  

In a recent decision, the Supreme Court reiterated that the referral courts under Section 11 of the Arbitration & Conciliation Act, 1996 should refrain from conducting an in-depth factual analysis of the dispute. “The scope of inquiry under Section 11 of the Act, 1996 is limited to ascertaining the prima facie existence of an arbitration agreement. In our view, such …

S. 11(6) A&C Act | Referral Courts Should Limit Its Enquiry To Prima Facie Existence Of Arbitration Agreement : Supreme Court
Trending News
1 month, 3 weeks ago

S. 11(6) A&C Act | Referral Courts Should Limit Its Enquiry To Prima Facie Existence Of Arbitration Agreement : Supreme Court

Live Law  

In a recent decision, the Supreme Court reiterated that the referral courts under Section 11 of the Arbitration & Conciliation Act, 1996 should refrain from conducting an in-depth factual analysis of the dispute. “The scope of inquiry under Section 11 of the Act, 1996 is limited to ascertaining the prima facie existence of an arbitration agreement. In our view, such …

Limited Scope of Examination under Section 11 of the Arbitration Act: Bombay High Court
2 months, 3 weeks ago

Limited Scope of Examination under Section 11 of the Arbitration Act: Bombay High Court

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The Bombay High Court has held that the scope of examination under section 11 (6A) of the Arbitration and Conciliation Act should be confined to the existence of an arbitration agreement on the basis of Section 7. The court observed that the referral court has limited jurisdiction to see whether an arbitration agreement exists or not. Once it is satisfied …

Clause Making Arbitration An Option For Resolution Of Dispute Is Not A Valid Arbitration Agreement: Calcutta High Court
1 year, 7 months ago

Clause Making Arbitration An Option For Resolution Of Dispute Is Not A Valid Arbitration Agreement: Calcutta High Court

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The High Court of Calcutta has held that a clause in an agreement that merely provides for a possibility of arbitration is not a binding arbitration agreement. The bench of Justice Shekhar B. Saraf held that a clause which provides for resolution of dispute either by way of litigation or arbitration cannot be held to be a binding arbitration agreement …

Arbitration Cases Weekly Round-Up: 14 To 20 May, 2023
1 year, 7 months ago

Arbitration Cases Weekly Round-Up: 14 To 20 May, 2023

Live Law  

Supreme Court: Referral Court Has Duty To Conclusively Decide Issue Of ‘Existence & Validity Of Arbitration Agreement’ Raised At Pre-Referral Stage: Supreme Court Case Title: Magic Eye Developers Pvt. High Courts: Calcutta High Court: Arbitration: Calcutta High Court Allows S. 11 Application Being Consolidated Claim Under Different Purchase Orders Linked To A Single Main Contract Case Title: Godrej & Boyce …

Referral Court Has Duty To Conclusively Decide Issue Of ‘Existence & Validity Of Arbitration Agreement’ Raised At Pre-Referral Stage : Supreme Court
1 year, 7 months ago

Referral Court Has Duty To Conclusively Decide Issue Of ‘Existence & Validity Of Arbitration Agreement’ Raised At Pre-Referral Stage : Supreme Court

Live Law  

The Supreme Court has held that under Section 11 of the Arbitration and Conciliation Act, 1996, when the issue of ‘existence and validity of an arbitration agreement’ is raised at pre-referral stage, then the Court is duty bound to conclusively decide the issue. Ltd. & Ors., has observed that the ‘pre-referral’ jurisdiction of Court under Section 11 of Arbitration and …

Clause Captioned As “Arbitration”, Doesn’t Conclusively Imply Mandatory Nature Of Arbitration: Bombay High Court
1 year, 10 months ago

Clause Captioned As “Arbitration”, Doesn’t Conclusively Imply Mandatory Nature Of Arbitration: Bombay High Court

Live Law  

The Bombay High Court has ruled that the use of the word ‘can’ in the relevant clause has the effect of qualifying Arbitration as a mode of settlement, and the mere fact that a particular clause is captioned as “Arbitration”, does not conclusively imply the mandatory nature of arbitration when the option is left to the parties to settle their …

Whether Arbitration Agreement Is Duly Stamped Can Be Looked Into Under Section 11(6A) Jurisdiction, Petitioner Tells Supreme Court
1 year, 11 months ago

Whether Arbitration Agreement Is Duly Stamped Can Be Looked Into Under Section 11(6A) Jurisdiction, Petitioner Tells Supreme Court

Live Law  

A Constitution Bench of the Supreme Court, on Tuesday, continued with the hearing of the reference, which pertains to the issue - whether the arbitration clause in a contract, which is required to be registered and stamped, but is not registered and stamped, is valid and enforceable. The issue framed is as under - Whether the statutory bar contained in …

Drafting Of An Arbitration Agreement – Key Checkpoints
1 year, 11 months ago

Drafting Of An Arbitration Agreement – Key Checkpoints

Live Law  

The importance of well – drafted agreements cannot be overstated, more so in the case of Arbitration agreements which are often drafted without much thought and care, infamously referred to as mid – night clauses as they are often reviewed last moment before signing a contract. Since often time, awards cannot be executed against third parties which do not have …

Arbitration Clause Has To Be Given Effect Even If It Does Not Expressly State That Decision Of Arbitrator Is Final & Binding On Parties: Supreme Court
2 years, 4 months ago

Arbitration Clause Has To Be Given Effect Even If It Does Not Expressly State That Decision Of Arbitrator Is Final & Binding On Parties: Supreme Court

Live Law  

The Supreme Court observed that an arbitration clause has to be given effect even if it does not expressly state that the decision of the arbitrator will be final and binding on the parties.The deficiency of words in agreement which otherwise fortifies the intention of the parties to arbitrate their disputes, cannot legitimise the annulment of arbitration clause, the. The …

Mere Use Of Words "Arbitration" Or "Arbitrator" In A Clause Won't Make It Arbitration Agreement : Supreme Court
2 years, 5 months ago

Mere Use Of Words "Arbitration" Or "Arbitrator" In A Clause Won't Make It Arbitration Agreement : Supreme Court

Live Law  

The Supreme Court observed that an arbitration agreement should disclose a determination and obligation on behalf of parties to refer disputes to arbitration.The bench comprising Justices DY Chandrachud and AS Bopanna noted that mere use of the word "arbitration" or "arbitrator" in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh …

Mere Use Of Word 'Arbitration' In Agreement Clause Heading Would Not Infer Existence Of Agreement Between Parties To Resolve Disputes Through Arbitration: Delhi HC
2 years, 9 months ago

Mere Use Of Word 'Arbitration' In Agreement Clause Heading Would Not Infer Existence Of Agreement Between Parties To Resolve Disputes Through Arbitration: Delhi HC

Live Law  

The Delhi High Court has observed that the mere use of word 'Arbitration' in the heading in the Clause of Agreement would not lead to the inference that there exists an agreement between such parties seeking resolution of disputes through arbitration.Justice Mukta Gupta referred to a 2014 decision of the Delhi High Court in Avant Garde Clean Room & Engg. …

Arbitration Court Reckoner : June & July 2021
3 years, 4 months ago

Arbitration Court Reckoner : June & July 2021

Live Law  

By way of the present column, an attempt is made to briefly review the salutary judgments pronounced by the Courts in the months of June & July 2021 under the Arbitration & Conciliation Act, 1996. Section 7 Non-filing of any reply/objection despite service of notice of S. 11 petition would constitute acceptance of existence of arbitration agreement In Swastik Pipe …

Arbitration : Supreme Court Suggests Amendments To Sections 11(7), 37 To Bring Section 8 & 11 At Par On Appealability
3 years, 10 months ago

Arbitration : Supreme Court Suggests Amendments To Sections 11(7), 37 To Bring Section 8 & 11 At Par On Appealability

Live Law  

The Supreme Court has observed that the amendments to Section 11 and 37 of the Arbitration and Conciliation Act, 1996 might be necessary so that the orders passed under Section 8 and 11 are brought on par as far as appealability is concerned.Section 8, which deals with the power of a court to refer parties to arbitration, was amended in …

Appointment Of Arbitrator: SC/HC Jurisdiction Confined To The Examination Of Existence Of Arbitration Agreement: SC [Read Judgment]
5 years, 4 months ago

Appointment Of Arbitrator: SC/HC Jurisdiction Confined To The Examination Of Existence Of Arbitration Agreement: SC [Read Judgment]

Live Law  

The Supreme Court has held that, after introduction of Section 11 to the Arbitration and Conciliation Act, the jurisdiction of the Supreme Court/High Court, while considering a petition to appoint arbitrator, is confined to the examination of the existence of an arbitration agreement Three judge bench comprising Justice RF Nariman, Justice R. Subhash Reddy and Justice Surya Kant overruled a …

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