Section 45 of The Arbitration Act

My Lord, What is the scope of enquiry under Section 45 of The Arbitration and Conciliation Act, 1996? “It is settled law that an Arbitration Agreement is an independent or ‘self-contained’ agreement. Notwithstanding the fact that rights and obligations arising out of a substantive contract and the agreement to have the disputes settled through the […]

Arbitration Clauses in Trust Deeds

My Lord, Can a Trust Deed, including an Arbitration Clause, constitute an ‘Arbitration Agreement’ within the meaning of Sections 2(b) and 2(h) read with Section 7 of The Arbitration and Conciliation Act, 1996? No. “Though the case of Vijay Kumar Sharma, (2010) 2 SCC 486 dealt with the execution of a ‘Will’ whereas the case […]

The Plea of Limitation VII: Section 14 of The Limitation Act, 1963

Respondent entered into a contract for construction of a commercial complex. Certain disputes arose. Sole Arbitrator passed an Award on 11.11.2010. Both parties appeared before Arbitrator. Arbitrator did not find any justification to allow any claim of Respondent-Contractor. Respondent believed he could take a somersault. It propelled him to file an application under Section 11 […]

Section 11 of The Arbitration Act III

My Lord, When an Arbitration Agreement is denied, can the Chief Justice or his Designate, in exercise of power under Section 11 of The Arbitration and Conciliation Act, 1996 appoint an Arbitrator without deciding the question whether there was an Arbitration Agreement between the parties, leaving it open to be decided by the Arbitrator? No. […]

Section 11 of The Arbitration Act II

In a Judgment, indicative of clerical errors and incorrect citations, at least, the following is clear: “The Chief Justice exercises judicial power while passing an order under Section 11 of The Arbitration and Conciliation Act, 1996 and thus can examine the question as to whether the claim which has been raised before him survives and […]

Express Exclusion of Part I of The Arbitration Act

My Lord, If an Arbitration Clause stipulates, dispute under contract ‘is to be settled and referred to Arbitration in London’ and further stipulates, ‘English Law’ will apply, does that expressly exclude applicability of Part I of Arbitration Act? Yes. “The parties have clearly intended that the Arbitration will be conducted in accordance with English Law […]

Section 31(7) of The Arbitration Act II

“A 3-Judge Bench of this Court in Union of India v. Bright Power Projects (India) Pvt. Ltd., (2015) 9 SCC 695 has considered the provisions contained in Section 31(7)(a) of The Arbitration and Conciliation Act, 1996 and considered the words “unless otherwise agreed by parties” in the said section and held that the Arbitrator is […]

Erroneous Judgment v. Perverse Judgment II

My Lord, Perverse Judgment? “This Court has already laid down as to which finding would be called perverse. It is a finding which is not only against weight of evidence but altogether against evidence. This Court has held in Triveni Rubber, AIR 1994 SC 1341, a perverse finding is one which is based on no […]

Implied Exclusion of Part I of the Arbitration Act II: BALCO Returns

My Lord, Application of Part I of The Arbitration Act? “It is clear that the law applicable to Arbitration Agreement in the present case is English Law. Once it is found that the law governing the Arbitration Agreement is English Law, Part I of the Indian Arbitration Act stands impliedly excluded. This has been a […]

Erroneous Judgment v. Perverse Judgment I

My Lord, Difference between Erroneous Judgment and Perverse Judgment? [There is a material distinction. A decision can be considered to be perverse only when there is some conscious violation of a rule of law or of procedure.] – Kristamma Naidu v. Chapa Naidu, 1894 ILR 17 Mad 410. [A good working test of perversity is […]

Expert Determination v. Arbitration

Russel on Arbitration, 21st Edition: “Many cases have been fought over whether a contract’s chosen form of dispute resolution is Expert Determination or Arbitration. This is a matter of construction of the contract, which involves an objective enquiry into the intentions of the parties. First, there are the express words of the disputes clause. If […]

Moral Misconduct of an Arbitrator I

Under Section 30(a) of The 1940 Arbitration Act, an Arbitral Award can be set side if the Arbitrator has “misconducted himself or the proceedings”. In K.P. Poulose, (1975) 2 SCC 236 it was held, “misconduct under Section 30(a) has not a connotation of moral lapse. It comprises legal misconduct which is complete if the Arbitrator on […]

Section 15(2) of The Arbitration Act II

My Lord, Suppose a Family Dispute in which the Arbitration Clause clearly specifies a Grand Uncle of a Joint Family is the only person in whom all Members of the Family have confidence. In the case of resignation or death of such Grand Uncle, is it possible to say by necessary implication no other person […]

Section 15(2) of the Arbitration Act I

My Lord, What is the meaning of the word ‘rules’ as appearing in Section 15(2) of The Arbitration and Conciliation Act, 1996? “Under Section 15(2) of the Act in a situation where the mandate of an Arbitrator terminates, a Substitute Arbitrator is required to be appointed according to the rules that were applicable to the […]

Section 31(7) of The Arbitration Act I

“Section 31(7) of The Arbitration and Conciliation Act, 1996 by using the words ‘unless otherwise agreed by the parties’, categorically specifies that the Arbitrator is bound by the terms of the contract so far as award of interest from the date of cause of action to the date of the award is concerned. Therefore, where […]

An Arbitrator’s Construction of Contract

It is well settled, construction of terms of a contract is primarily for an Arbitrator to decide. He is entitled to take a view, which he holds to be correct one after considering material before him and after interpreting provisions of contract. Court while considering challenge to an Arbitral Award does not sit in appeal […]

Today Homes and Infrastructure Pvt. Ltd.

My Lord, Paragraphs 13 & 14 in Today Homes and Infrastructure Pvt. Ltd. v. Ludhiana Improvement Trust, (2014) 5 SCC 68? “We are not concerned with the said issue as to whether what was held in Paragraph 13 of Today Homes and Infrastructure Pvt. Ltd. was correct or not when it makes reference to the […]

Findings of an Arbitrator

“The soul of every adjudicatory process is the recording of reasons.” It indicates a ‘disclosure of mind‘, which in turn demonstrates an ‘application of mind‘. In Raipur Development, (1989) 2 SCC 721 however, the SC held that a Non-Speaking Arbitral Award cannot be set aside except in cases where the parties stipulate that the Arbitrator […]

Implied Exclusion of Part I of the Arbitration Act I

Hon’ble Justice Dipak Misra, while attempting to clear a ‘maze’ has perhaps created yet another in Harmony Innovation Shipping Limited v. Gupta Coal India Limited, [Civil Appeal No. 610 of 2015] . From the many Post-Bhatia cases dealing with implied exclusion, only two propositions became relatively well-established: (1) the choice of a foreign proper law, in […]

Section 11(6) of the Arbitration Act II

“Even if the Arbitration Agreement was to specifically provide for any particular qualification(s) of an Arbitrator the same would not denude the power of Court, acting under Section 11(6), in an appropriate case, to depart there from. In Singh Builders Syndicate, (2009) 4 SCC 523 pendency of Arbitration proceedings for over a decade was found […]

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Arbitration