Top cases on Arbitration Law from July to August 2024
A quick recap of the latest rulings on Arbitration Law by the High Courts.
Appointment of arbitrator
Confidentiality in Arbitration: Legal and Practical Challenges in India
by Vasanth Rajasekaran* and Harshvardhan Korada**
Court is required to look only into existence of the arbitration clause at the stage of appointing arbitrator u/s 11 of Arbitration Act: Jharkhand HC
The respondent raised an objection to the maintainability of the present application on the ground that the petitioner being an agent governed under Section 48 of the Bihar Cooperative Societies Act, 1935, was required to approach the Registrar of the Cooperative Societies for initiating a dispute resolution proceeding.
Delhi High Court | Appointment of Arbitrators Post-2015 Amendment must adhere to eligibility criteria regardless of contract execution and arbitration commencement dates
The clear ineligibility to any unilateral appointment is set out in Section 12 of the Arbitration Act read with the Seventh Schedule of the Act. After the 2015 Amendment to the Act came into effect, any unilateral appointment would be contrary to the law.
Will arbitration proceedings survive if mandate of arbitrator is terminated? Delhi HC answers
“The arbitral proceedings in the matter were not terminated but the Arbitrator had been non-responsive and was unable to perform his functions. Thus, as per Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, the present case is suited for appointment of a substitute Arbitrator for adjudicating the disputes.”
Delhi High Court sets aside arbitral award due to violation of S. 12(5) Arbitration Act
“It is well settled principle that unilateral appointment of Arbitrator is not permissible under the law”
A policy circular doesn’t serve as arbitration clause without explicit consent: Calcutta High Court
In the facts of this case, there is no reference to the Circular whereby the arbitration clause has been incorporated in the contract between the parties. It is true that the policy decision in terms of the Circular is to make arbitration a mechanism for dispute resolution both in cases of existing and future contracts.
‘3 years is a long period for filing application for appointing arbitrator’; SC suggests Parliament to bring amendment prescribing specific limitation period
Supreme Court, while allowing the present petition, appointed Justice Sanjay Kishan Kaul, Former Judge of the Supreme Court of India, to act as the sole arbitrator.
Punjab and Haryana High Court deprecates frivolous contest by State instrumentalities over appointment of arbitrators
Punjab and Haryana High Court commented that “Such an approach would defeat the intent and objective behind the incorporation of the Act of 1996, which provides for a speedy and efficacious resolution of disputes.”
Calcutta High Court dismisses application for appointment of Arbitrator; rules “May” in Clause 13 renders dispute resolution ambiguous
The Calcutta High Court emphasised the need for a clear and unequivocal expression of intent to arbitrate.
Bombay High Court denies appointment of arbitrator for dispute against MSME
Bombay High Court held the instant applications under Section 11 of Arbitration Act as non-maintainable and dismissed the said applications.
Seat of arbitration once fixed by the arbitration agreement, has the exclusive jurisdiction for applications u/s 11 of the A&C Act, 1996: Rajasthan High Court
“The Court observes that the ‘contrary indicia’ is clearly reflected in the present case, because the seat was mentioned as Bikaner and venue was mentioned as New Delhi.”
Review application for Arbitrator’s appointment maintainable under Article 215 of the Constitution of India: Calcutta High Court
High Courts are superior Courts of records, and the power to review orders is not restricted by the provisions of the Arbitration and Conciliation Act, 1996.
Rajasthan High Court appoints sole arbitrator where performance security was forfeited without considering force majeure clause
“The Court exercised the powers conferred under Section 11 of the Arbitration and Conciliation Act, 1996 and appointed, Jai Prakash Narayan Purohit, Retired Additional District Judge, as the sole Arbitrator to adjudicate the dispute between the parties.”
“Only ex facie invalidity of an agreement can be a ground for refusal of reference”; Calcutta High Court allows Section 11 application
Without questioning the validity and legality of the arbitration clause, the Calcutta High Court appointed an Arbitrator to decide the issues raised by both the parties.
Allegation of Forgery/Fraud inter partes does not render dispute non-arbitrable; Calcutta High Court appoints sole arbitrator
The Court opined that the mere potential or presence of criminal proceedings deriving from the same circumstances would not exclude the issue from being resolved through arbitration.
Delhi High Court dismisses petition under S. 11 Arbitration Act in view of moratorium imposed on parent company
Delhi High Court granted liberty to the petitioner to file a fresh legal action for the same relief once the moratorium is lifted or varied.
Delhi High Court clarifies the position of Res Judicata with respect to Section 11 of the Arbitration Act
Delhi High Court was of the view that it would be within its right to dismiss the petition at the threshold if the petition is not maintainable, otherwise an unacceptable position of law would arise where despite a petition being not maintainable due to lack of territorial jurisdiction would need to be entertained.
Delhi High Court applies the doctrine of kompetenz-kompetenz to refer the dispute to an Arbitral Tribunal
An arbitration agreement that is embedded within a contract would always be considered as a separate and severable clause, and despite a reference being made by the court the arbitrator is free to decide on their jurisdiction including the existence of the arbitration agreement in accordance with the kompetenz-kompetenz principle
Bombay High Court analyses whether ‘referring disputes to a sole arbitrator’ printed at the back of the tax invoice amount to an arbitration clause
Any document in writing exchanged between the parties which provide a record of the agreement and in respect of which there is no denial by the other side, would squarely fall within the ambit of Section 7 of the Arbitration and Conciliation Act, 1996 and would amount to an arbitration clause.