Section 12(5) of The Arbitration Act III

“Section 12(5) is a new provision which relates to the de jure inability of an Arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non-obstante clause in Section 12(5) the moment any person whose relationship with the parties or the Counsel or the subject matter […]

Arbitrariness in Arbitration Clauses

“It shall be essential, a party invoking Arbitration shall specify amount claimed and shall furnish a ‘deposit-at-call’ for 10% of amount claimed. In event of an award in favour, deposit shall be refunded to him in proportion to amount awarded w.r.t. amount claimed and balance, if any, shall be forfeited and paid to other party.” […]

Referred to Larger Bench XVIII: Arbitrability, The Transfer of Property Act

“It will be noticed that ‘validity’ of an Arbitration Agreement is apart from its ‘existence’. One moot question that arises, which needs to be authoritatively decided by a Bench of Three Learned Judges, is whether the word ‘existence’ would include weeding-out Arbitration Clauses in agreements which indicate that the subject-matter is incapable of Arbitration. Questions […]

Section 7(5) of The Arbitration Act IV

“The principle of ‘incorporation by reference’ of an Arbitration Clause, from another document or contract, is a well-established principle in Arbitration Jurisprudence [Clements v. Devon Country Insurance Committee, [1918] 1 KB 94; Macleod Ross and Co. Ltd. v. Compagnie d’ Assurances Generales L’Helvetia of St Gall, [1952] 1 Lloyd’s Rep 12 (CA)]. This principle has […]

Section 34 of The Arbitration Act I

“As far as Section 34 is concerned, the position is well-settled by now that the Court does not sit in appeal over the Arbitral Award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii). Arbitral Awards may not be interfered with if the view taken by the Arbitrator is a possible […]

Section 31(7) of The Arbitration Act V

My Lord, Interest? No. “High Court has held that no interest is payable. Arbitrators are creatures of agreements. G.C. Roy, (1992) 1 SCC 508 exhaustively dealt with power of the Arbitral Tribunals to grant pre-reference and pendente lite interest. Of course, 1940 Act was in vogue at that time. In Reliance Cellulose Products Ltd., (2018) […]

Section 12(5) of The Arbitration Act II

“After the Amendment to The Arbitration and Conciliation Act, 2015 – Section 12(5) prohibits the employee of one of the parties from being an Arbitrator. In the present case, the agreement between the parties was entered into on 28.01.2000 and the Arbitration Proceedings commenced way back in 2009 and thus, one cannot invoke Section 12(5) […]

Section 15(2) of The Arbitration Act III

“The present case is governed by The Pre-Amended 1996 Act [See, Section 15(2)]. This Court in ACC Ltd. v. Global Cements Ltd., (2012) 7 SCC 71 held that the procedure agreed upon by the parties for the appointment of the Original Arbitrator is equally applicable to the appointment of a Substitute Arbitrator, even if the […]

Section 26 of The Arbitration Act

“Section 26 of The Arbitration and Conciliation (Amendment) Act, 2015 has to be construed literally first, and then purposively and pragmatically. Section 26 is indeed in two parts, separate and distinct. Whereas the first part refers only to Arbitral Proceedings before an Arbitral Tribunal, the second part refers to Court Proceedings “in relation to” Arbitral […]

Section 31(7) of The Arbitration Act IV

“The clause only bars interest upon earnest money or security deposits or amounts payable to the contractor under the contract. The above-mentioned amounts are amounts which in a sense belong to the contractor. They are amounts voluntarily deposited with the other contracting party in order to be refunded or forfeited depending on performance of the […]

Section 8 of The Arbitration Act VI: Arbitrable Disputes

My Lord, Consumer-Disputes are Non-Arbitrable? No. Arbitration Act does not exclude jurisdiction of Consumer Forums to decide Consumer-Disputes under The Consumer Act [Skypak Couriers Ltd., (2000) 5 SCC 294]. If X opts for Arbitration, it may be possible to state, X cannot, subsequently, file a Complaint under The Consumer Act. However, National Seeds Corporation Limited, […]

Section 34(3) of The Arbirtration Act I

“Appeal arises from the Judgment of a Learned Single Judge of High Court of Calcutta by which the Respondent’s Application for condoning a delay of 514 days in filing an Application under Section 34 of The Arbitration and Conciliation Act, 1996 was allowed. This Court needs to assess whether the benefit of Sections 5 and […]

Section 8 of The Arbitration Act V

“Though there are different agreements involving several parties, it is a single commercial project. All the parties can be covered by the Arbitration Clause in the main agreement. High Court, in our view, erred in not keeping in view the various clauses in all the three agreements which make them an integral part of the […]

Departmental Arbitrators

It had been considered, in earlier times, that an Arbitration Clause in a Government Contract providing that an employee of the department will be the Sole Arbitrator is neither void nor unenforceable [Indian Oil Corporation Limited, (2009) 8 SCC 520; Ace Pipeline Contracts (P) Ltd., (2007) 5 SCC 304; M.P. Gupta, (2004) 10 SCC 504]. […]

Section 7(5) of The Arbitration Act III

“The Bill of Lading makes it clear that the ‘merchant’ expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of The Bill of Lading whether typed, printed or otherwise. The Arbitration Clause is Clause 25, printed and annexed to The Bill of Lading. Respondent has expressly agreed to […]

Section 31(7) of The Arbitration Act III : Award of Interest

“‘Interest’ is defined as “the return or compensation for the use or retention by one person for a sum of money belonging to or owned by any reason to another”. In essence, an award of interest compensates a party for its forgone return on investment, or for money withheld without a justifiable cause. The current […]

Section 2(1)(f)(iii) of The Arbitration Act

“Section 2(1)(f)(iii) of The Act refers to two different sets of persons: an “association” as distinct and separate from a “body of individuals”. For example, under Section 2(31) of The Income Tax Act, 1961, “person” is defined as including, under Sub-Clause (v), an association of persons, or body of individuals, whether incorporated or not. It […]

Referred to Larger Bench XIII ANSWERED: Venue v. Seat, Arbitration

My Lord, ‘Venue’ v. ‘Seat’? The Arbitration Clause has to be appositely read to understand its intention so as to arrive at a conclusion on whether it determines the ‘seat’ or not. There is no shadow of doubt that the Arbitration Clause has to be read in a holistic manner so as to determine the […]

Referred to Larger Bench XIII: Venue v. Seat, Arbitration

Foreign Cases Cited: Naviera Amazonica Peruana S.A., (1988) (1) Lloyd’s Law Reports 116. Hiscox, (1992) 1 AC 562. McDonnell Douglas Corpn., (1993) 2 Lloyd’s Law Rep. 48. C vs. D, (2007) EWCA Civ 1282 (CA). C vs. D, (2008) 1 Lloyd’s Law Rep 239. Braes of Doune Wind Farm (Scotland) Limited, (2008) EWHC 426 (TCC). […]

Conditional Intention of Arbitration

3-Judge Bench [Hon’ble Justice Dipak Misra] in Oriental Insurance Company Limited, (2018) 6 SCC 534 opined: “It does not need special emphasis that an Arbitration Clause is required to be strictly construed. Any expression in the Clause must unequivocally express the intent of Arbitration. It can also lay the postulate in which situations the Arbitration Clause […]

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