{"id":295510,"date":"2023-06-28T11:00:17","date_gmt":"2023-06-28T05:30:17","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=295510"},"modified":"2023-06-28T10:57:43","modified_gmt":"2023-06-28T05:27:43","slug":"arbitration-sc-on-scope-of-referral-court-jurisdiction-at-the-pre-referral-stage-scc-blog","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/06\/28\/arbitration-sc-on-scope-of-referral-court-jurisdiction-at-the-pre-referral-stage-scc-blog\/","title":{"rendered":"Explained| Existence & Validity of Arbitration Agreement: Scope of Referral Court’s jurisdiction at the Pre-referral stage"},"content":{"rendered":"
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Supreme Court:<\/b> In case dealing with the issue of pre-referral jurisdiction of the Referral Court under Section 11(6)<\/a> of the Arbitration and Conciliation Act, 1996<\/a>, post- the Arbitration and Conciliation Amendment Act, 2015<\/a>1<\/sup><\/a>, the bench of MR Shah<\/b> and CT Ravikumar, JJ has held that if the dispute\/issue with respect to the existence and validity of an arbitration agreement is not conclusively and finally decided by the referral court while exercising the pre-referral jurisdiction under Section 11(6) and it is left to the arbitral tribunal, it will be contrary to Section 11(6A) of the Arbitration Act.<\/p>\n

“It is the duty of the referral court to decide the said issue first conclusively to protect the parties from being forced to arbitrate when there does not exist any arbitration agreement and\/or when there is no valid arbitration agreement at all.”<\/b><\/p>\n

In the case at hand, the Delhi High Court had referred the disputes for arbitration and had appointed the sole arbitrator. This was, however, done without conclusively deciding the issue of the existence and validity of an arbitration agreement and had left it to be decided by the arbitral tribunal. It had observed that “this Court cannot finally pronounce one way or the other on this aspect”<\/i>. It had also specifically observed that the arbitrability of the dispute raised viz-a-viz the arbitration clause of agreement, is an involved issue, can be addressed by the learned arbitral tribunal.<\/p>\n

Considering these aspects, the Supreme Court observed that the referral court has not pronounced anything finally on the existence and validity of the arbitration agreement which ought to have been done by the referral court.<\/p>\n

Reading Section 11(6A) of the Arbitration Act which has been added through Arbitration and Conciliation Amendment Act, 2015<\/a>, the Court noticed that it is the duty cast upon the referral court to consider the dispute\/issue with respect to the existence of an arbitration agreement.<\/p>\n

As per the settled position of law, pre-referral jurisdiction of the court under Section 11(6) of the Arbitration Act is very narrow and inheres the following two inquiries:<\/p>\n