Section 7(4)(C) of the Arbitration and Conciliation Act, 1996 : Acquiesence by Silence?

The jurisdiction of the Arbitral Tribunal emanates from the agreement between the parties.1 Therefore, the existence of the arbitration agreement between the parties is a sine qua non for reference of the disputes between parties to arbitration.2

 

The Arbitration and Conciliation Act, 1996 (“the Act”) is the law governing arbitration proceedings in India. Section 7 of the Act defines an “arbitration agreement” to mean an agreement by the parties to submit disputes that have arisen or which may arise between them in respect of a defined legal relationship to arbitration.3 Further, Section 7(3) of the Act mandates that an arbitration agreement shall “be in writing”. Under the Act, an arbitration agreement is deemed to be in writing if : (a) it is contained in a document signed by the parties;4 (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement;5 (c) an exchange of statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other;6 or (d) a contract between the parties making a reference to another document containing an arbitration clause indicating an intention to incorporate the arbitration clause from such other document into the contract.7

 

This article seeks to examine the scope and purport of Section 7(4)(c) of the Arbitration and Conciliation Act, 1996 which stipulates that an arbitration agreement is deemed to be in writing if it is contained in an exchange of statement of claim and defence wherein the existence of arbitration agreement is alleged by one party and not denied by the other. In order to accomplish the aforesaid objective, the authors first examined the legislative history of Section 7 of the Act resulting in its enactment. Thereafter, the authors briefly examined the divergent views expressed by the High Courts and the Supreme Court of India on the scope and meaning of Section 7(4)(c) of the Act. The authors concluded by summarising their views on the true scope and purport of the said sub-section.

 

Legislative History of Section 7 of the Arbitration and Conciliation Act, 1996

Prior to enactment of Section 7 of the Act, there was no provision under Indian laws that was pari materia to the said section. The Arbitration Act has been enacted to consolidate and amend the law relating to arbitration in India taking into account the United Nations Commission on International Trade Law’s Model Law on International Commercial Arbitration (“Uncitral Model Law”).8 Thus, Section 7 of the Arbitration Act mirrors Article 7 of the Uncitral Model Law, 1985.9 Therefore, the reports setting out the historical background for formulation of the Uncitral Model Law is relevant in construing Section 7(4)(c) of the Arbitration Act. In fact, in the recent past, the Supreme Court of India has examined the provisions of the Uncitral Model Law while interpreting the provisions of the Arbitration Act.10 It is settled that special committee reports preceding the enactment can be looked into for interpreting the meaning of a statute that is ambiguous and unclear or for appreciating the background leading to the enactment of the provision.11

 

The reports/deliberations at the time of formulating the Uncitral Model Law assume significance for another purpose. One of the primary reasons for formulating Uncitral Model Law was to evolve a harmonised legal framework for settlement of international commercial disputes.12 Moreover, in India, it is settled law that the provisions of the domestic statute must be read to enhance their conformity with the global legal regime.13 Therefore, the historical background will be extremely critical in interpreting Section 7(4)(c) of the Arbitration Act. Hence, this section briefly examines the legislative history of Article 7 of the Uncitral Model Law.

 

In 1976, the Asian-African Legal Consultative Committee (“Aalcc”)14 invited the United Nations Commission on International Trade Law (“Uncitral”) to consider the possibility of drafting a Protocol to the United Nations Convention on the Recognition and Enforcement of Foreign Awards, 1958 (“NYC”) to redress several issues arising from divergent interpretations of the NYC.15 In the light of the said proposal, the Uncitral requested the Secretary General to prepare a report on the application and interpretation of the NYC.16 Accordingly, the Secretary General of the Uncitral submitted his report on further steps to be taken by the Uncitral in respect of international commercial arbitration.17 The participants at the consultative meeting unanimously agreed that the preparation of a Model Law on arbitration (instead of a Protocol) would be the most appropriate way to achieve desired uniformity.18 Accordingly, Uncitral entrusted the work to prepare draft Model Law on international commercial arbitration to Working Group on International Contract Practices.19

 

Since an arbitration agreement between the parties is the edifice on which the arbitral proceedings are structured, it was considered necessary to stipulate the requirements of a valid arbitration agreement in the Uncitral Model Law in line with the provisions of the NYC.20 Therefore, like the NYC, the Uncitral Model Law defines “arbitration agreement” to include an arbitral clause in a contract or an arbitration agreement signed by the parties and/or contained in an exchange of letters or telegrams.21 Additionally, the Working Group felt that arbitration agreement should be defined to include arbitration clauses incorporated by reference to other documents and also cover scenarios wherein parties appeared before the Arbitral Tribunal without contesting its jurisdiction.22 However, none of the initial drafts23 of the Uncitral Model Law contained provisions akin to Section 7(4)(c) of the Arbitration Act which stipulates that an arbitration agreement comes into existence by exchange of statement of claim and defence wherein the existence of arbitration agreement is alleged by one party and not denied by the other.

 

In fact, it appears that a provision akin to Section 7(4)(c) of the Arbitration Act was incorporated in Uncitral Model Law at the suggestion of Bulgarian representative at the 320th Committee meeting of the Uncitral held in June 1985. In the said meeting, the Bulgarian representative proposed to amend draft Article 7(2) of the Uncitral Model Law that defined “agreement in writing” to include “an exchange of statements in which neither party denied the existence of an [arbitration] agreement”. This suggestion was based on the fact that some countries recognised such arbitration agreements.24 In order to give effect to the recommendation of the Bulgarian observer, the Australian representative suggested that the concluding phrase of draft Article 7(2) of Uncitral Model Law be amended to read “or in an exchange of statement of claim and defence where one party alleges and the other party does not deny existence of an arbitration agreement”.25 This suggestion found favour with the Commission and was engrafted in Article 7(2) of the Uncitral Model Law.26 Amongst other things, such a provision seems to have been incorporated to cover scenarios wherein the reference of dispute to arbitration was based on the tacit conduct of the parties.26 Most importantly, the original intention appears to include all exchange of statements (and not merely exchange of statement of claim and defence) in which neither party denied the existence of arbitration agreement to qualify as an arbitration agreement in writing.

 

The Model Law was amended by Uncitral on 7-7-2006.27 Several suggestions were made to amend the language of Article 7(2) of the Uncitral Model Law, 1985 to clarify its true scope and purport. A careful study of the several amendments proposed to Article 7(2) of the Uncitral Model Law provides useful insights into the real scope and purport of Section 7(4)(c) of the Arbitration Act.

 

At the time of amending Uncitral Model Law in 2006, it was suggested that Article 7 of the Uncitral Model Law defining “agreement in writing” be amended to read “if is contained in statements of claim and defence [on the substance of the dispute] in which the existence of arbitration agreement is alleged by one party and not denied by the other.”28 The words “on the substance of the dispute” were sought to be added to exclude procedural submissions such as notice of arbitration on the ground that the addressee may not carefully review and reply to such procedural submissions.28 Eventually, the said amendment was not adopted. Therefore, the aforesaid amendment makes it clear that the term “statement of claim and defence” have not been used restrictively in Article 7 of the Uncitral Model Law to be confined to pleadings before the Arbitral Tribunal, but also include any exchange of statements such as notice of arbitration alleging the existence of an arbitration agreement.

 

In fact, while considering changes to the Uncitral Model Law in 2006, suggestions were also made that the phrase “exchange of statement of claim and defence in which the existence of agreement is alleged by one party and not denied by the other” should be placed elsewhere in the Model Law because the said phrase did not deal with the writing requirement, but “with the existence and validity of an arbitration agreement”.29 However, in order to avoid confusion the text was retained in its original form. Therefore,it is clear that Section 7(4)(c) of the Arbitration Act does not merely stipulate a writing requirement but deals with the existence and validity of an arbitration agreement. Thus, the mere fact of the party not denying the existence of arbitration agreement alleged by other party is proof of its intention to refer disputes to arbitration.

 

There were also suggestions that the phrase “exchange of statement of claim and defence in which existence of agreement is alleged by one party and not denied by the other” in Article 7 of the Uncitral Model Law should be deleted because (i) the words “statement of claim and defence” were misleading as reference to existence of arbitration agreement was made at the earlier stage of arbitration proceedings i.e. at the time of issuance of arbitration; and (ii) the subject-matter was already covered under Article 4 read with Article 16(2) of the Uncitral Model Law on arbitration and no further provision was needed.30 Article 4 of the Uncitral Model Law stipulates that a party is deemed to have waived its right to object to non-compliance with a derogable provision if it does not object to such non-compliance and proceeds with arbitration. Article 16(2) of the Uncitral Model Law stipulates that any plea regarding the jurisdiction of the Arbitral Tribunal has to be taken at the earliest instance and not later than submission of statement of defence. After deliberations, the prevailing view was that the scope of Article 7 of Uncitral Model Law was much wider than scenarios covered under Article 4 and Article 16(2) of the Uncitral Model Law. Unlike Article 7, Article 4 read with Article 16(2) of the Uncitral Model Law did not permit a positive presumption of the existence of an arbitration agreement by mere exchange of statement of claims and defence.31 Therefore, the Working Group retained the phrase “exchange of statements of claim and defence in which the existence of agreement is alleged by one party and not denied by the other.”

 

Finally, at the Forty-fourth Session, the Working Group also considered amendment to Article 7 of the Uncitral Model Law to read “Furthermore, an arbitration agreement is in writing if it is contained in an exchange of written submissions in an arbitral or legal proceedings in which the existence of an agreement is alleged by one party and not denied by the other party in such submissions.”32 Another suggestion was made to amend Article 7 of the Uncitral Model Law to include more generic words to include situations where parties communicated on the merits of the dispute or scenarios wherein no arbitration agreement existed but a party nevertheless submitted the claim to arbitration which was not opposed by the other parties.33 However, the Working Group decided to retain the original text (i.e. Article 7 of the Uncitral Model Law) and not incorporate any of suggested amendments because the word “statement of claim” and “statement of defence” had well established and broad meanings in arbitral practice.32 The terms “written submissions” in the proposed amendment were held to be vague and imprecise.32 Therefore, it is clear that the terms “statement of claim and defence” in Article 7 of the Uncitral Model Law were not confined to pleadings filed before the Arbitral Tribunal, but have a wider connotation.

 

Therefore, a perusal of the preparatory works of Article 7 of the Uncitral Model Law makes it clear that the terms “statements of claim and defence” were not restricted to pleadings filed before the Arbitral Tribunal, but were used in a broader sense to include procedural submissions such as notice of arbitration. Moreover, Article 7 of the Uncitral Model Law intended the mere act of “exchange of statement of claim and defence in which the existence is alleged by one party and not denied by the other” to constitute an arbitration agreement between the parties and it was not merely a mere “writing requirement”. Most importantly, while the Working Group acknowledged that there was some overlap between Article 7 and Articles 4/16(2) of the Uncitral Model Law, Article 7 of the Uncitral Model Law was of wider import and therefore all the proposals for its deletion were rejected.

 

Indian Courts & Varied Interpretations of Section 7(4)(C) of the Arbitration Act, 1996

This section briefly discusses some of the significant cases wherein Indian courts have interpreted Section 7(4)(c) of the Arbitration Act. Since the law laid down by the Supreme Court binds all courts and tribunals in India, the judgments of the Supreme Court on Section 7(4)(c) of the Arbitration Act will be examined first.34

 

In S.N. Prasad v. Monnet Finance Ltd.35, the Supreme Court of India held that the words “statement of claim and defence” occurring in Section 7(4)(c) of the Arbitration Act are not restricted to the statements of claim and defence filed before the arbitrator. It held that, if there is an assertion of existence of an arbitration agreement in any suit, petition or application filed before any court, and if there is no denial thereof in the defence/counter/written statement thereto filed by the other party to such suit, petition or application, then it can be said there is an “exchange of statements of claim and defence” for the purposes of Section 7(4)(c) of the Arbitration Act.36 There is no reason forthcoming in the judgment as to why an interpretation was accorded to the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act. However, it appears that, such an interpretation is inspired by the law of pleadings codified in the Code of Civil Procedure, 1908 (“CPC”). Under CPC, every allegation of fact if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the counter-party/defendant is deemed to be admitted.37 Be that as it may, the interpretation of the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act in the said judgment are in consonance with intent of the drafters of Uncitral Model Law.

 

In MTNL v. Canara Bank38, despite there being no arbitration agreement between the parties, matter was referred to arbitration on a joint request made by the parties before the High Court in writ proceedings. Consequently, statement of claim and defence along with counter-claims was filed before the Tribunal and no objections were raised to the jurisdiction of the Tribunal. Thereafter, the appellant therein filed a special leave petition challenging the order39 passed by the Delhi High Court referring the parties to arbitration on the ground that there was no arbitration agreement in existence. The Supreme Court dismissed38 the application inter alia on the ground that an arbitration agreement had come into existence between the parties under Section 7(4)(c) of the Arbitration Act by exchange of statement of claim and defence along with the counter-claim.40 Similarly, in State of W.B. v. Sarkar & Sarkar41, the Supreme Court of India held that an arbitration agreement had come into existence under Section 7(4)(c) of the Arbitration Act by virtue of exchange of statement of claim and defence along with counter-claim before the Arbitral Tribunal.

 

Hence, on a conspicuous reading of the judgments of the Supreme Court of India, it is clear that the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act is not confined to pleadings before the Arbitral Tribunal, but also includes any suit, application or petition filed by a party asserting the existence of the arbitration agreement and not denied by the other party in its statement of defence/counter or objections to such suit, petition or application. However, the judgments of the Supreme Court have not expressed any opinion on whether an exchange of notices wherein the existence is alleged by one party and not denied by other in its reply to the notice will constitute an “arbitration agreement” within the meaning of Section 7(4)(c) of the Arbitration Act. The High Courts have expressed divergent opinions on this aspect.

 

The Karnataka High Court42 and the Delhi High Court43 have interpreted the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act to include exchange of notice and reply between the parties in which the existence of arbitration is asserted by one party and not denied by the other as constituting an “arbitration agreement” within the meaning of Section 7(4)(c) of the Arbitration Act. On the other hand, the Andhra Pradesh High Court has held44 that the exchange of notices and reply wherein existence of arbitration agreement is alleged by one party and not denied by the other will not constitute an “arbitration agreement” within the meaning of Section 7(4)(c) of the Arbitration Act. At this juncture, a closer examination of the judgments of the High Courts needs to be undertaken to understand the rationale for the divergent views expressed.

 

In Tata Elxsi Ltd. v. Anand Joshi45, a notice was dispatched by the petitioner alleging the existence of an arbitration agreement between the parties. Thereafter, the respondent replied to the letter stating that “averments in the notice are false”. Subsequently, the respondent vide another letter denied the existence of an arbitration agreement. The petitioner filed an application under Section 11 of the Arbitration Act seeking appointment of an arbitrator. While the petition was dismissed, the High Court of Karnataka held that notice and reply exchanged between the parties will constitute an “arbitration agreement” if in the reply notice “all other matters such as claim, objections, etc. are replied but if the reply is silent about the arbitration agreement then such an agreement could be inferred”.46 Similarly, in Shyamraju & Co. (India) (P) Ltd. v. City Municipal Council47, the exchange of notice and reply wherein the claimant asserted the existence of arbitration agreement and the respondent did not deny it in reply while objecting to other claims was held to constitute an “arbitration agreement” within the meaning of Section 7(4)(c) of the Arbitration Act.

 

In G. Kapoor v. Reacon Engineers (P) Ltd.43, the petitioner issued a legal notice alleging the existence of an arbitration agreement. The respondent in its reply did not deny the existence of the arbitration agreement but asserted that it intended to suggest its own list of arbitrators for adjudication of the dispute. The Delhi High Court held that an “arbitration agreement” had come into existence by exchange of notice and reply within the meaning of Section 7(4)(c) of the Arbitration Act and appointed an arbitrator.48

 

An analysis of the aforesaid judgments seems to suggest that the High Courts have construed “statement of claim and defence” liberally to include exchange of notice and reply between the parties in line with the liberal and correct interpretation of the Supreme Court of India in S.N. Prasad v. Monnet Finance Ltd.35 discussed supra. In fact, the Delhi High Court in G. Kapoor43 and the Karnataka High Court in Shyamraju47 specifically advert to the decision of the Supreme Court in Monnet Finance35. While Monnet Finance35 which does not lay down an exhaustive definition of the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act, it advocates liberal and expansive interpretation of the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act. That apart, no other aspect appears to have been considered by the Karnataka High Court and Delhi High Court while taking a view that an exchange of notice and reply will lead to constitution of an “arbitration agreement” under Section 7(4)(c) of the Arbitration Act.

 

On the other hand, the Andhra Pradesh High Court in Gajulapalli Chenchu Reddy v. Koyyana Jaya Lakshmi44, has held that the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act are confined to pleadings before the Arbitral Tribunal. Therefore, an acrimonious exchange of notices will not result in an “arbitration agreement” coming into existence in terms of Section 7(4)(c) of the Arbitration Act.49 The view taken by the Andhra Pradesh High Court is contrary to the law laid down by the Supreme Court of India in Monnet35. Therefore, on that count alone, the views expressed therein are bad in law.

 

For reasons detailed in next section, the authors argue that the view expressed by the Karnataka High Court and Delhi High Court that exchange of notice and reply wherein the existence of arbitration agreement is asserted by one party and not denied by the other constitute an “arbitration agreement” within the meaning of Section 7(4)(c) of the Arbitration Act.

 

Exchange of Notice, Reply and Arbitration Agreement Under Section 7(4)(C) of the Arbitration Act, 1996

Section 7(4)(c) of the Arbitration Act stipulates that an arbitration agreement is deemed to come into existence by exchange of statement of claim and defence in which the existence of arbitration agreement is alleged by one party and not denied by the other.

 

In order to ascertain whether exchange of notice and reply wherein the existence of arbitration agreement is alleged by one party and not denied by the other will result in an arbitration agreement within the meaning of Section 7(4)(c) of the Arbitration Act, the scope of the words “statement of claim and defence” will have to be considered.

 

Apart from Section 7 of the Arbitration Act, the words “statement of claim and defence” only find mention in the heading of Section 23 of the Arbitration Act. The said section stipulates that the parties shall file their statement of claim and defence stating the facts supporting the claim/defence, the points at issue and the relief or remedy sought before the Arbitral Tribunal as per the timelines set out in the agreement or determined by the Arbitral Tribunal. Thus, it is clear that Section 23 of the Arbitration Act does not intend to define “statement of claim and defence” in the Arbitration Act, but only set out framework for conduct of arbitration proceedings. Moreover, it is settled principle of law that words derive colour from the context in which they are placed.50 Therefore, given the fact that Section 23 is contained in Chapter V of the Arbitration Act dealing with conduct of arbitration proceedings, it is abundantly clear that it did not intend to define “statement of claim and defence” for the entirety of the Arbitration Act.

 

Therefore, in the absence of any guidance available in the statute, the preparatory works provide an important tool for interpretation of the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act. As noted earlier, Section 7(4)(c) of the Arbitration Act mirrors Article 7 of the Uncitral Model Law. In 2006, Article 7 of the Uncitral Model Law was proposed to be amended to read “exchange of statements of claim and defence [on the substance of the dispute] in which the existence of the arbitration agreement is alleged by one party and not denied by the other”. The words “on the substance of the dispute” were sought to be added to exclude procedural submissions such as notice of arbitration on the ground that the addressee may not carefully review and reply to procedural submissions. The said amendment was rejected since “statement of claim and defence” were used liberally to include exchange of notices between the parties regarding the substance of the dispute.

 

That apart, it is settled principle of law that the words in a statute should be interpreted to give effect to every provision in the statute. Therefore, an interpretation which renders a provision otiose or nugatory should be eschewed.51 For reasons detailed below, if Section 7(4)(c) of the Arbitration Act is interpreted to exclude existence of arbitration agreement that has come into existence by exchange of notice and reply, it will render Section 7(4)(c) of the Arbitration Act nugatory.

 

Section 16(2) of the Arbitration Act clearly stipulates that the plea that Arbitral Tribunal has no jurisdiction must be taken not later than the statement of defence. Therefore, if a party is aggrieved by the fact that there is no arbitration agreement in existence but fails to take that contention in its statement of defence, it is deemed to have waived its right under Section 16(2) read with Section 4 of the Arbitration Act. Section 4 of the Arbitration Act provides that a party has waived its right if it does not object to non-compliance of a derogable provision of the Arbitration Act. Therefore, Section 16(2) of the Arbitration Act already deals with scenarios wherein the arbitration agreement is alleged to exist in statement of claim and not denied by the other party in its statement of defence “before” the Arbitral Tribunal. Thus, in order to give effect to Section 7(4)(c) of the Arbitration Act, it has to be interpreted to cover scenarios wherein the exchange of statement of claim and defence was “not before” the Arbitral Tribunal. Otherwise, Section 7(4)(c) and Section 16(2) of the Arbitration Act will operate in the same field, rendering Section 7(4)(c) of the Arbitration Act nugatory.

 

Additionally, it is settled principle of law that a statute should be interpreted practically having regard to ground realities.52 Therefore, where alternative constructions are possible the courts must give effect to that interpretation which will result in smooth working of the system for which the statute has been enacted rather than one which will reduce the legislation to futility.53 From a practical standpoint, parties do not impromptu convene before the Arbitral Tribunal. The convening of the Arbitral Tribunal is necessarily preceded by issuance of a notice of arbitration wherein the existence of the arbitration agreement is alleged by one party and the other party usually objecting to the constitution of the Arbitral Tribunal or denying the arbitration clause. Therefore, if the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act are interpreted restrictively, it would be divorced from the ground reality of how arbitration proceedings are ordinarily conducted. Hence, in order to make words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act workable and meaningful, the words have to be necessarily interpreted to include notice wherein the existence of the arbitration agreement is alleged by one party and not denied by the notice in the reply. Such an interpretation would be in consonance with Uncitral Model Law basis which the Arbitration Act has been enacted and the practical ground realities.

 

Viewed from another angle, the starting point of arbitration in terms of Section 21 of the Arbitration Act is the notice of arbitration. If the notice alleges the existence of an arbitration clause whilst making and stating its claims and the other party responds to all the claims but does not respond to the claim of existence of an arbitration clause, the law deems acceptance of the arbitration clause. Such arbitration clause is for reference of only present disputes to arbitration.

 

Thus, based on the aforesaid analysis, it is clear that the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act are not confined to pleadings before the Arbitral Tribunal. It includes any suit, petition or application filed before any court or tribunal wherein the existence of arbitration agreement is alleged by one party and not denied by the other party in the defence, counter-claim, written statement filed by the other party to such suit, petition or application. Moreover, having regard to the legislative history and well-settled cannons of interpretations, the words “statement of claim and defence” in Section 7(4)(c) of the Arbitration Act should be read to include exchange of notice and reply wherein the existence of arbitration agreement is alleged by one party and not denied by the other. There is no reason to restrict the meaning of the words “statement of claim and defence” to only pleadings before the tribunal. Every document which contains a claim would be a statement of claim and every document containing a defence in response to the claim would be a statement of defence.

 

———

Senior Advocate and Additional Advocate General of Karnataka.

†† Advocate enrolled with the Bar Council of India in May 2016. He is a gold medallist from National Law University, Jodhpur and practises law at Bangalore, India.

*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 3 SCC J-32

1 Indu Malhotra, O.P. Malhotra’s the Law & Practice of Arbitration and Conciliation (3rd Edn., 2014), p. 354.

2MTNL v. Canara Bank, (2020) 12 SCC 767, para 9; Yogi Agarwal v. Inspiration Clothes & U, (2009) 1 SCC 372, para 10; Indowind Energy Ltd. v. Wescare (India) Ltd., (2010) 5 SCC 306

, para 13.

3 Section 7(1), Arbitration and Conciliation Act, 1996.

4 Section 7(4)(a), Arbitration and Conciliation Act, 1996.

5 Section 7(4)(b), Arbitration and Conciliation Act, 1996.

6 Section 7(4)(c), Arbitration and Conciliation Act, 1996.

7 Section 7(5), Arbitration and Conciliation Act, 1996; Indowind Energy Ltd. v. Wescare (India) Ltd., (2010) 5 SCC 306, para 12.

8 Generally see, Rohan Tigadi, “Indian Arbitration : Ghost of Implied Exclusion and other related issues”, 12 (2) Asian International Arbitration Journal 181 (2016).

9 See, Article 7 of the Model Law on International Commercial Arbitration 1985 (United Nations Commission on International Trade Law, UN Doc. A/40/17, Annex I).

10 Generally see, Hindustan Construction Co. Ltd. v. Union of India, 2019 SCC Online SC 1520, para 19; BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, para 68.

11Kalpana Mehta v. Union of India, (2018) 7 SCC 1, paras 123-35.

12 A/RES/40/72, Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law (11 December 1985); Preamble, Arbitration and Conciliation Act, 1996.

13K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, para 154.

14 It is an international government organisation formed in 1956 to serve as an advisory board to member States on matters of international law.

15 International Commercial Arbitration, Note by the Secretary General (A/CN.9/127)

16 UNCITRAL, Note by the Secretariat further work in respect of International Commercial Arbitration (A/CN.9/169), Para 2.

17 UNCITRAL Report of the Secretary General : Study on the application and interpretation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (A/CN.9/168)

18 Note by the Secretariat : Further work in respect of International Commercial Arbitration (A/CN.9/169), Para 6.

19 Report of Working Group on International Contract Practices on the Work of its Third Session, A/CN.9/216, Para 1.

20 UNCITRAL, Report of the Secretary General : Possible Features of a Model Law on International Commercial Arbitration (A/CN.9/207), Paras 39-43.

21 Article 7(2) of the UNCITRAL Model Law, 1985; Report of the Working Group on International Commercial Arbitration of its Third Session (A/CN.9/216), Para 23.

22 Report of the Working Group on International Commercial Arbitration of its Third Session (A/CN.9/216), Para 24 (in this connection, the question was raised whether a party which had appeared before an Arbitral Tribunal without contesting jurisdiction may later invoke lack of a written arbitration agreement. The prevailing view was that such a party could not in those circumstances invoke lack of written agreement. However, it was agreed that the question should be dealt with in the Model Law, as it was a question which could be adequately dealt by domestic law”.); International Commercial Contract : Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration (A/CN.9/264), Paras 6-8.

23 Generally see, UNCITRAL, Report of the Working Group on International Commercial Practices on the work of its Fourth Session (A/CN.9/232); UNCITRAL, Report of the Working Group on International Commercial Practices on the work of its Seventh Session (A/CN.9/246)

24 Summary records of the 320th UNCITRAL Meetings, available at <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/320meeting-e.pdf> (last accessed on 31-1-2021), Para 5.

25 Summary records of the 320th UNCITRAL Meetings, available at <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/320meeting-e.pdf> (last accessed on 31-1-2021), Para 6.

26 Report of the United Nations Commission on International Trading Law on the work of its 18th Session, A/40/17, Para 87.

27Ibid. Introduction to the UNCITRAL 2012 Digest of Case Law on International Commercial Arbitration (1985 with amendments adopted in 2006), p. 1, Para 1 available at <https://www.uncitral.org/pdf/english/clout/MAL-digest-2012-e.pdf> (last accessed 31-1-2021)

28 Report of the Working Group on Arbitration of its Thirty-third Session (A/CN.9/485), Para 38.

29 Report of the Working Group on Arbitration on the work of its Thirty-fourth Session, A/CN.9/487, Para 34.

30 Report of the Working Group on Arbitration on the work of its Thirty-sixth Session, A/CN.9/508, Paras 32-35.

31Id, Paras 34-35; Settlement of commercial disputes : Preparation of a model legislative provision on written form for the arbitration agreement, A/CN.9/WGII/WP.136, Para 10; Report of the Working on Arbitration on the work of its Forty-fourth Session (A/CN.9/592), Para 68.

32 Report of the Working Group on Arbitration on the work of its Forty-fourth Session (A/CN.9/592), Para 65.

33Id, Paras 66-67.

34 Article 141, Constitution of India.

35(2011) 1 SCC 320.

36Id, para 12.

37 Order 8 Rule 5, Code of Civil Procedure, 1908.

38(2020) 12 SCC 767.

39Canara Bank v. MTNL, 2011 SCC OnLine Del 5705; Canara Bank v. MTNL, 2011 SCC OnLine Del 5704.

40MTNL v. Canara Bank, (2020) 12 SCC 767, paras 9, 10.

41(2018) 12 SCC 736.

42Tata Elxsi Ltd. v. Anand Joshi, 2000 SCC OnLine Kar 120; Shyamraju & Co. (India) (P) Ltd. v. City Municipal Council, 2019 SCC OnLine Kar 3177

43G. Kapoor v. Reacon Engineers (P) Ltd., 2019 SCC OnLine Del 10667.

44Gajulapalli Chenchu Reddy v. Koyyana Jaya Lakshmi, 2009 SCC OnLine AP 202.

452000 SCC OnLine Kar 120.

46Id, para 5.

472019 SCC OnLine Kar 3177

48G. Kapoor v. Reacon Engineers (P) Ltd., 2019 SCC OnLine Del 10667, paras 15-17.

49Gajulapalli Chenchu Reddy v. Koyyana Jaya Lakshmi, 2009 SCC OnLine AP 202, para 11.

50Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108, paras 20-21.

51High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712, paras 35 & 36; Rajdeep Ghosh v. State of Assam, (2018) 17 SCC 524, para 23.

52Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108, para 48; Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188, paras 16-18.

53Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188, para 20.

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