ADR Unit 3

Jurisdiction of Arbitral Tribunal

Section 16: Competence of Arbitral Tribunal to Rule on Its Jurisdiction

Subsection 1: Tribunal's Power to Rule on Its Own Jurisdiction

• Jurisdictional Rulings: The arbitral tribunal has the authority to rule on its own
jurisdiction, which includes deciding on objections regarding the existence or validity of
the arbitration agreement.
• Arbitration Clause:
o An arbitration clause within a contract is treated as independent from the rest of the
contract.
o Even if the main contract is found to be null and void, the arbitration clause remains
valid and enforceable.

Subsection 2: Timing of Jurisdictional Objections

• Deadline for Raising Objections:
o A party must raise any objections regarding the tribunal’s lack of jurisdiction no later
than the submission of the statement of defense.
• Appointment of Arbitrator Does Not Preclude Objections:
o A party will not be precluded from raising a jurisdictional objection simply because
they have appointed or participated in the appointment of an arbitrator.

Subsection 3: Plea of Exceeding Authority

• Raising Objections to Scope of Authority:
o If a party believes the tribunal is exceeding its authority or acting outside the scope of
its mandate, this plea must be raised as soon as the matter in question is raised during
the arbitral proceedings.

Subsection 4: Admission of Delayed Pleas

• Late Pleas:
o The arbitral tribunal may admit a delayed plea (objection) if it considers the delay to be
justified.

Subsection 5: Tribunal's Decision and Continuation of Proceedings

• Decision on Jurisdictional Pleas:
o The tribunal is required to make a decision on any plea raised under subsections (2) or
(3).
o If the tribunal rejects the plea (i.e., it decides it has jurisdiction or is acting within its
authority), it shall continue the proceedings and proceed to make an arbitral award.
Subsection 6: Recourse to Setting Aside the Award
• Recourse Against the Award:
o A party that is aggrieved by the arbitral award made after rejecting the jurisdictional plea
may apply to set aside the arbitral award under Section 34 of the Arbitration Act.

Principles of Kompetenz Kompetenz-

➢ The principle requires that the arbitral tribunal must exercise jurisdiction over the dispute
under the arbitration agreement.
➢ Challenge to the existence or validity of the arbitration agreement will not prevent the
arbitral tribunal from proceeding with hearing and ruling upon jurisdition.
➢ If it retains jurisdiction, making an award or the substance of the dispute would be
permissible without waiting for the outcome of any court action aimed at deciding the
issue of the jurisdiction.
➢ The negative effect of the Kompetenz Kompetenz principal is that arbitrators are entitled
to be the first to determine their jurisdiction which is later reviewable by the Court, when
there is action to enforce or set aside the arbitral award.
Chloro Controls (I) P. Ltd. Vs Severn Trent Water Purification Inc., 2012
Where the dispute is not before an arbitral tribunal, the court must also decline jurisdiction
unless the arbitration agreement is patently void, inoperative or incapable of being performed;

State of Orissa Vs Surendranath Kanungo, 2004

➢ The Arbitrator himself in exercise of power conferred on him by or under section 16 can
decide the question whether or not the arbitration clause in question was scored out at the
time of agreement between the parties and as such,
➢ whether or not he has jurisdiction to decide the matter or adjudicate the dispute
State of Jharkhand Vs Himachal Construction Co. Pvt. Ltd., 2006
➢ During pendency of arbitration,
➢ civil court has no jurisdiction to entertain petition and decide nature of objections raised
therein.
➢ Questions can be raised before and decided by arbitrator.
Wellington Associates Ltd. Vs Kriti Mehta, 2000
➢ Hon'ble Supreme Court held that Section 16 of the new Act is an enabling
provision.
➢ It empowers the Arbitration Tribunal to decide upon the questions relating to the
existence of Arbitration Agreement and hence removes the disability, which once
existed.
➢ Section uses the word 'may' which indicates that it does not give an exclusive
power to the arbitration tribunal to decide upon such questions.
➢ The Chief Justice can also decide upon such questions if it is raised by the
respondent in reply to the petition filed for the appointment of an Arbitrator
under Section 11.
Gas Authority of India Ltd Vs Keti Construction (I) Ltd, 2007
The tribunal may raise the question of jurisdiction and the parties may also raise the
same question but not later than the submission of the statement of defence.

Surender Kumar Singhal & Ors Vs Arun Kumar Bhalotia & Ors, 2021
➢ In this Case the issue was:
➢ Whether a jurisdictional objection u/s 16 of the Act can be decided 'while passing
the award'?
➢ The Delhi High Court held that an arbitral tribunal must make a decision about the
objection u/s 16 of the Act as a preliminary issue, the minute feasible.
➢ It was held that the 'question of jurisdiction' should be decided first, before the
passing of the final award.
Jeph Bev Private Limited & Ors Vs Delhi Arbitration Centre and Ors, 2021
The issue was:
➢ Whether Rule 20 of the DIAC (Arbitration Proceedings) Rules, 2018 can be
equated with S. 16 of the Arbitration and Conciliation Act, 1996?
➢ The Delhi High Court held that Rule 20 of the DIAC cannot be equated to S.16 of
the Act.
➢ The said Rule describes the competence of the Delhi International Arbitration
Centre to administer and not of the competence of the arbitral tribunal
to pass judgment.
Composition of Arbitral Tribunals
Section 10: Number of Arbitrators
• Subsection (1):
o The parties in an arbitration are free to decide the number of arbitrators.
However, the number must not be even.
• Subsection (2):
o If the parties fail to agree on the number of arbitrators, the arbitral tribunal will
consist of a sole arbitrator.

Section 11: Appointment of Arbitrators

This section outlines the procedures and guidelines for the appointment of
arbitrators in arbitration.
Subsection (1):
• Nationality:
o A person of any nationality can be appointed as an arbitrator unless the parties
have agreed otherwise.
Subsection (2):
• Procedure for Appointment:
o The parties are free to agree on the procedure for the appointment of the
arbitrator(s).
Subsection (3):
• Arbitration with Three Arbitrators:
o If there is no agreement on the procedure, in an arbitration with three
arbitrators:
▪ Each party appoints one arbitrator.
▪ The two appointed arbitrators jointly appoint the third arbitrator, who will
act as the presiding arbitrator.
Subsection (4):
• Failure to Appoint or Agree:
o If:
▪ A party fails to appoint an arbitrator within 30 days after a request.
▪ The two appointed arbitrators fail to agree on the third arbitrator within 30
days.
o The Supreme Court or High Court, or a designated person or institution, will
make the appointment upon the request of a party.
Subsection (5):
• Sole Arbitrator Appointment:
o If there is no agreement on a sole arbitrator:
▪ 30 days from the request must pass without agreement.
▪ The Supreme Court or High Court or a designated institution will appoint
the arbitrator.
Subsection (6):
• Failure to Act Under Agreed Procedure:
o If a party fails to act under the agreed procedure, or if the procedure isn’t
followed by the parties or arbitrators, a party can request the Supreme Court or
High Court, or a designated institution, to take the necessary action.
Subsection (6A):
• Court’s Role in Examining Jurisdiction:
o When the Supreme Court or High Court is considering an application under
Subsections (4), (5), or (6), it will only examine the existence of the
arbitration agreement.
Subsection (6B):
• Designating Institutions:
o Designating a person or institution by the Supreme Court or High Court is not
considered a delegation of judicial power.
Subsection (7):
• Final Decision on Appointment:
o A decision by the Supreme Court or High Court (or designated
person/institution) on the appointment of arbitrators is final, and no appeal is
allowed, including Letters Patent Appeals.
Subsection (8):
• Disclosure and Qualifications:
 o Before appointing an arbitrator, the Supreme Court or High Court (or
designated person/institution) must seek a disclosure from the prospective
arbitrator as per Section 12(1) and consider:
▪ Any qualifications required by the parties.
▪ The content of the disclosure and factors that ensure an independent and
impartial arbitrator.
Subsection (9):
• International Commercial Arbitration:
o In international commercial arbitration, the Supreme Court or designated
institution can appoint an arbitrator of a different nationality if the parties
belong to different nationalities.
Subsection (10):
• Scheme for Dealing with Appointments:
o The Supreme Court or High Court may make a scheme for dealing with
matters entrusted to it under Subsections (4), (5), and (6).
Subsection (11):
• Competency of High Courts:
o If requests under Subsections (4), (5), or (6) are made to multiple High Courts,
the first High Court to receive the request is the only one competent to decide
the issue.
Subsection (12):
• Local High Court Jurisdiction:
o For matters arising in arbitrations other than international commercial
arbitration, references to the Supreme Court or High Court should be
construed as a reference to the High Court within whose jurisdiction the
principal Civil Court is located.
Subsection (13):
• Expedited Disposal:
o Applications under this section for the appointment of arbitrators should be
disposed of expeditiously, ideally within 60 days of service of notice to the
opposite party.
Subsection (14):
• Determination of Fees:
o The High Court may frame rules regarding the fees of the arbitral tribunal,
considering the Fourth Schedule.
o This does not apply to international commercial arbitration or arbitrations
where the parties have agreed to follow the fee structure of an arbitral
institution.

Section 11A: Power of Central Government to Amend Fourth Schedule

• Subsection (1):
o The Central Government may amend the Fourth Schedule if deemed
necessary, through a notification in the Official Gazette.
• Subsection (2):
o A draft notification must be laid before both Houses of Parliament for 30
days. If both Houses disapprove or suggest modifications, the notification may
not be issued, or it will be issued in a modified form.

State of Goa Vs Praveen Enterprises, 2011

Section 11 of the Act contemplates minimal judicial intervention, the Chief Justice or
his designate has been authorized to appoint the arbitrator but it does not contain any
provision for the court to refer the disputes to the arbitrator.
Navratandas & Co. (P) Ltd. Vs Tata Iron & Steel Co., 2006
➢ The existence of the arbitration clause and the validity of reference shall only be
decided by the Arbitrator.
➢ It is also within the domain of the Arbitrator to decide whether the claim of the
petitioner has already been settled on full satisfaction.
Bharat Sanchar Nigam Ltd. Vs Motorola India Pvt. Ltd., 2008
Once a minimum 30 days period has expired and a petition under section 11 is filed,
the appointing authority losses the right to make the appointment of arbitrator.
Kamla Solvent Vs Manipal Finance Corpn. Ltd., 2001
It is well settled that where an arbitrator is named in the arbitration agreement, the
provisions of section 11 of the Act are not attracted and the court will not have
jurisdiction to try and decide the petition filed by party for appointment of another
arbitrator.
Section 12 Grounds for Challenge
Subsection (1):
• Disclosure Requirements:
o When a person is approached for appointment as an arbitrator, they must
disclose in writing any circumstances that could lead to justifiable doubts
regarding their independence or impartiality, or their ability to perform their
duties:
▪ Relationship or interest (direct or indirect) with the parties or the subject
matter of the dispute.
▪ This relationship can be financial, business, professional, or of any other
kind.
▪ The disclosure should also include factors that could affect the arbitrator's
ability to devote time to the arbitration, particularly the ability to complete
the arbitration within twelve months.
• Explanation 1: The Fifth Schedule provides guidance on determining the
existence of circumstances that may raise doubts about the arbitrator’s
independence or impartiality.
• Explanation 2: The disclosure must be made in the form specified in the Sixth
Schedule.
Subsection (2):
• Ongoing Disclosure:
 o An arbitrator must continuously disclose any circumstances that could affect
their independence or impartiality.
o This disclosure should be made in writing to the parties without delay, unless
the parties have already been informed about those circumstances.
Subsection (3):
• Grounds for Challenging an Arbitrator:
o A party may challenge an arbitrator if:
▪ Circumstances exist that give rise to justifiable doubts about the
arbitrator's independence or impartiality.
▪ The arbitrator does not meet the qualifications agreed upon by the parties.
Subsection (4):
• Challenges to Appointed Arbitrators:
o A party can challenge an arbitrator it has appointed, or an arbitrator in whose
appointment it has participated, only if:
▪ The party becomes aware of circumstances that give rise to doubts about
the arbitrator’s independence or impartiality after the appointment has
been made.
Subsection (5):
• Ineligibility for Appointment:
o Even if parties agree otherwise, any person whose relationship with the
parties, counsel, or the subject matter of the dispute falls under the categories
listed in the Seventh Schedule will not be eligible for appointment as an
arbitrator.
o Exception: After a dispute has arisen between the parties, they can waive the
applicability of this provision through an express written agreement.

State of UP Vs Sandul Singh, 1985

Therefore, where an arbitrator refused to extend the time and also closed the
proceedings and asked the parties to decide for future themselves, it simply meant that
he turned down to carry on as an arbitrator. 256
Sabyasachi Das Vs Swapan Das, 1994
➢ It is also an established law that if an arbitrator does not fulfill the qualifications
laid down in agreement,
➢ then the appointment is void ab intio and proceedings would be void also.
In City Lifeline Travels Private Ltd Vs Delhi Jal Board 2021
The issue was:
➢ Whether the decision in the case of Perkins Eastman Architects DPC & Anr Vs
HSCC (India) ought to be read in a restrictive manner?
➢ The Delhi High Court held that the effectiveness of arbitration as an ADR
mechanism depends on the very basis that the disputes would be arbitrated by
independent and impartial arbitrators.
➢ Consequently, the judgment in Perkins Eastman Case must be read in a liberal
manner, not in a restrictive way.
Section 13: Challenge Procedure
This section outlines the procedure for challenging an arbitrator's appointment based
on independence, impartiality, or qualification, and the consequences of such a
challenge.
Subsection (1):
• Agreement on Procedure:
o The parties have the freedom to agree on a procedure for challenging an
arbitrator.
o This means that if the parties have agreed on a particular process, they can
follow it for handling challenges to an arbitrator's appointment.
Subsection (2):
• Default Challenge Procedure:
o If the parties have not agreed on a procedure (or in the absence of an
agreement), a party intending to challenge an arbitrator must do so by:
▪ Sending a written statement outlining the reasons for the challenge to the
arbitral tribunal.
▪ This challenge must be made within fifteen days after the party becomes
aware of:
The constitution of the arbitral tribunal.
Any circumstances related to the challenge under Section 12(3) (which
refers to doubts regarding the independence or impartiality of the
arbitrator).
Subsection (3):
• Arbitral Tribunal's Decision:
o If the challenged arbitrator does not withdraw from their position and the
other party does not agree to the challenge:
▪ The arbitral tribunal itself will decide whether the challenge is valid or not.
Subsection (4):
• Continuation of Arbitration:
o If the challenge is unsuccessful (whether under the procedure agreed upon by
the parties or the default procedure), the arbitral tribunal will continue with
the proceedings and proceed to make an arbitral award.
Subsection (5):
• Application to Set Aside Award:
o If the arbitral award is made despite the challenge, the party challenging the
arbitrator may apply to have the award set aside under Section 34 (which
outlines the grounds for setting aside an arbitral award).
Subsection (6):
• Entitlement to Fees:
o If the arbitral award is set aside, the Court may decide whether the arbitrator
who was challenged is entitled to receive any fees for their involvement in the
case.
Section 14 - Failure or impossibility to act.
Section 14: Failure or Impossibility to Act (Termination of Mandate and
Substitution of Arbitrator)
This section addresses the termination of an arbitrator's mandate and the
substitution of an arbitrator in case they are unable to perform their functions or for
other reasons.
It ensures that the arbitral process continues even if there is a need for a change in the
composition of the tribunal.
Subsection (1): Termination of Mandate
The mandate of an arbitrator shall terminate and a substitute arbitrator shall be
appointed if:
1. The arbitrator becomes unable (either de jure or de facto) to perform their
functions or fails to act without undue delay.
2. The arbitrator withdraws from office.
3. The parties agree to the termination of the arbitrator’s mandate.
Subsection (2): Court’s Role in Controversy
• If there is a dispute about the grounds for termination mentioned in clause (a) of
subsection (1), the Court may be approached by a party to decide whether the
arbitrator’s mandate should be terminated.
• However, the parties may agree to a different process or approach to resolve such
disputes.
Subsection (3): Withdrawal or Agreement to Terminate
• If an arbitrator withdraws or the parties agree to the termination of the
arbitrator’s mandate, this does not imply that the validity of any grounds related to
the termination or the arbitrator’s impartiality (as referred to in Section 12 or
Section 13) is accepted.

Additional Provisions on Termination of Mandate and Substitution of

Arbitrator:
Subsection (1): Circumstances for Termination
In addition to the situations described in Sections 13 and 14:
• The arbitrator’s mandate can also terminate if:
o The arbitrator withdraws from office for any reason.
o The termination is agreed upon by the parties (whether for cause or by mutual
consent).
Subsection (2): Appointment of Substitute Arbitrator
• If the arbitrator's mandate terminates, a substitute arbitrator shall be appointed
following the same procedure that was originally used to appoint the replaced
arbitrator.
Subsection (3): Repetition of Hearings
• Unless the parties agree otherwise, if an arbitrator is replaced:
o The arbitral tribunal has the discretion to repeat any hearings that were held
before the replacement of the arbitrator.
Subsection (4): Validity of Prior Orders or Rulings
• Unless the parties agree otherwise, any order or ruling made by the arbitral
tribunal prior to the replacement of an arbitrator shall not be invalidated solely
due to the change in the composition of the tribunal.
o This ensures that the arbitral process is not disrupted by the substitution of an
arbitrator and previous procedural steps remain valid.

Ashalata S. Lahoti Vs Hiralal Lilladhar, 2000

➢ Bombay High Court held that an Arbitral Tribunal consisting of even number of
arbitrators is not in accordance with section 10 of the Act.
➢ Hence the Court can under section 14(2) decide about the termination of the
mandate of such a tribunal

Hotel Marina Vs Sushil Kumar Raut & Ors, 2003

➢ Delhi High Court held that there is no power of the appointing authority to recall a
duly appointed arbitrator.
➢ His mandate is terminated or withdrawn only by way of events mentioned in Ss.
14 and 15 when he fails to act or it becomes impossible for him to act as arbitrator.
➢ When no such withdrawal of mandate has taken place,
➢ the order of any substitute arbitrator in which he purports to act as sole arbitrator is
non est and without any jurisdiction and is liable to be struck down

Extent of Judicial Intervention

Section 5
Extent of judicial intervention
Notwithstanding anything contained in any other law for the time being in force, in
matters governed by this Part,
no judicial authority shall intervene except where so provided in this Part.
Union of India Vs Popular Construction Co., 2001
➢ Supreme Court held that keeping in view the scheme of the Act which is "to
minimize the supervisory role of courts in the "arbitral process" and the same
objective being reflected in section 5
➢ (which prescribes the extent of judicial intervention in uncertain terms)
➢ the court concluded that the time prescribed under Section 34 to challenge the
award is absolute and inextensible by court under section 5 of the Limitation Act.
Mankanner Jain Social Welfare Society Vs Anil Kumar Doshi, 2002
➢ Madras High Court held that the New Act has widened the powers of the arbitral
tribunal to decide upon the questions relating to appointment of the arbitrator,
jurisdiction by the arbitral tribunal etc.
➢ Hence for such preliminary issues a party cannot approach the Civil Court as such
intervention has been prohibited vide section 5 of the Act.
➢ The Civil Court can intervene only where it has been expressly provided for by the
Act.
➢ If the challenge fails and the tribunal passes the award, the party can challenge the
award under section 34 as provided for in Section 16(6). This is the only
remedy available.
Section 59
Appealable orders
(1) An appeal shall lie from the order refusing—
(a) to refer the parties to arbitration under section 54; and
(b) to enforce a foreign award under section 57,
to the court authorised by law to hear appeals from such order.
(1) No second appeal shall lie from an order passed in appeal under this section, but
nothing in this section shall affect or take away any right to appeal to the Supreme
Court.

Essentials of Arbitration Agreement

Section 7
Arbitration agreement
Definition of "Arbitration Agreement"
This section provides a detailed explanation of what constitutes an arbitration
agreement and the requirements for it to be valid.
Subsection (1): General Definition
• Arbitration agreement refers to an agreement where the parties agree to submit
disputes (either current or future) to arbitration.
• These disputes may arise in the context of a defined legal relationship, whether
contractual or non-contractual.
Subsection (2): Forms of Arbitration Agreement
An arbitration agreement can take two main forms:
1. As an arbitration clause within a contract.
2. As a separate agreement entirely, distinct from the contract in which the dispute
arises.
Subsection (3): Requirement for Writing
• The arbitration agreement must be in writing. This ensures there is a clear,
tangible record of the parties' intent to resolve disputes via arbitration.
Subsection (4): What Constitutes Written Agreement
An arbitration agreement is considered to be in writing if it is documented in any of
the following forms:
(a) A document signed by both parties.
(b) An exchange of letters, telex, telegrams, or any other form of
telecommunication (including electronic communications) that provides a record
of the agreement.
 (c) An exchange of statements of claim and defense where one party alleges the
existence of the arbitration agreement and the other party does not deny it.
Subsection (5): Reference to an Arbitration Clause in a Contract
• If a contract references a document that contains an arbitration clause, that
reference can itself constitute an arbitration agreement, provided:
o The contract is in writing.
o The reference to the document is clear enough to incorporate the arbitration
clause into the contract.

M/s Sarkar Sealing Systems Private Limited Vs M/s Jain Motor Trading
Company, 2004
➢ The words in arbitration agreement like "settled by arbitration of a neutral person
agreed to by both" are vague because who will be that neutral person is not
identified.
➢ Therefore, such arbitral clause cannot be given effect.
In UP Sugar Factories Federation Ltd Vs P.S. Mishra, 2003
➢ The Court held that where the arbitration agreement contains a jurisdiction clause
➢ which merely provides that a particular court would have jurisdiction to deal with
any court proceedings arising out of the dealings between the parties,
➢ and it does not either by intention
➢ or by specific words or by inference exclude the jurisdiction of other courts which
➢ might deal with that matter because the cause of action or part thereof has accrued
within the territorial jurisdiction of such courts,
➢ such jurisdictional clause cannot be construed to mean that it ousts the jurisdiction
of such courts.
In M.M. Aqua Technologies Limited Vs Wing Brothers Builders and Engineers
Limited & Anr, 2002
The Delhi High Court held that a person not a party to arbitration agreement cannot
invoke it merely on the ground that a part of the job under the main contract
containing the agreement had been assigned to him.
Role of Courts in reference to Arbitration
Section 8: Power to Refer Parties to Arbitration Where There is an Arbitration
Agreement
This section empowers a judicial authority (court) to refer a dispute to arbitration if
the matter is subject to an arbitration agreement, provided certain conditions are
met.
Subsection (1): Referral to Arbitration
• If an action is brought before a judicial authority (court) regarding a matter
covered by an arbitration agreement, and a party to the agreement (or any
person claiming through or under them) applies to the court, the court must refer
the matter to arbitration, provided the following conditions are met:
1. The application is made before the party submits their first statement on the
substance of the dispute.
2. The court must refer the matter to arbitration unless it finds that prima facie (at
first glance) no valid arbitration agreement exists.
Key Points:
o Mandatory Referral: The judicial authority must refer the parties to arbitration
unless it concludes that no valid arbitration agreement exists.
o Timing: The application must be made before the party submits their first
statement on the dispute.
o Court's Examination: The court can only refuse referral to arbitration if, based on
a preliminary examination, the arbitration agreement is not valid.
Subsection (2): Requirement for Supporting Documents
• The application to refer the matter to arbitration under subsection (1) must be
accompanied by the original arbitration agreement or a duly certified copy.
• If the original or certified copy is unavailable because it is retained by the other
party, the applicant can:
o Submit a copy of the arbitration agreement.
o Petition the court to compel the other party to produce the original or
certified copy before the court.
o The application cannot be entertained without the required supporting
documents (original or certified copy of the arbitration agreement).
o If the original is unavailable, the applicant may request the court to order the
other party to provide the original or certified copy.
Subsection (3): Commencement or Continuation of Arbitration
• Even if an application for referral to arbitration has been made under subsection
(1) and the issue is still pending before the judicial authority, the arbitration
process can commence or continue, and the arbitral tribunal can make an award.
o The arbitration process can continue regardless of the pending application
for referral in court.
o An arbitral award can still be made even while the issue of referral to
arbitration is under consideration by the court.

Interim Measures by Courts and Arbitral Tribunals

Section 9: Interim Measures, etc., by Court
This section provides the court's authority to grant interim measures before, during,
or after arbitral proceedings but before the arbitral award is enforced under Section
36. It outlines the situations in which a party can seek interim relief from the court in
connection with an ongoing or potential arbitration.
Subsection (1): Application for Interim Measures
• A party can apply to the court for the following relief:
1. Appointment of a guardian for a minor or person of unsound mind in relation
to the arbitration process.
2. Interim Measures of Protection: The court may grant interim protection
concerning any of the following matters:
 ▪ Preservation, custody, or sale of goods that are the subject of the arbitration
agreement.
▪ Securing the amount in dispute in the arbitration (e.g., freezing or securing
assets).
▪ Detention, preservation, or inspection of property or things that are the
subject of the dispute or related to it. This can include allowing entry to
premises, taking samples, conducting inspections, or carrying out
experiments necessary for evidence gathering.
▪ Interim injunction or the appointment of a receiver to manage assets or
property during the arbitration.
▪ Any other interim measure the court deems just and convenient for the
specific circumstances.
o Court's Power: The court has the same powers to issue orders as it would in any
regular judicial proceeding.
o The court can intervene to provide temporary relief during arbitration, which
could include preserving assets, securing the subject matter, or gathering
evidence.
o These measures can be sought before, during, or after the arbitration, but they
must be sought before the arbitral award is enforced.
Subsection (2): Timeframe for Commencement of Arbitral Proceedings
• If the court passes an order for interim measures before the arbitration starts:
o Arbitral proceedings must commence within 90 days of the court's order.
o The court may allow an extension of this period if necessary.
o This ensures that arbitration follows a timely process and is not delayed
indefinitely by interim measures.
o If arbitration does not begin within the prescribed time, the interim measure
may lose its effectiveness.
Subsection (3): Role of Court After Arbitral Tribunal is Constituted
• Once the arbitral tribunal is constituted, the court will generally not entertain
an application for interim measures unless it finds that:
o The remedy provided under Section 17 (interim relief by the arbitral tribunal)
would not be efficacious (effective or sufficient).
o After the tribunal is in place, the court's role in granting interim relief is
limited.
o The tribunal itself is empowered to grant interim relief under Section 17, and
the court will only intervene if the tribunal's powers are deemed inadequate or
ineffective.

Ashwani Minda & M/s Jay Ushin Ltd Vs M/s U Shin Ltd and M/s Minebea
Mitsumi Incorporated, 2020
➢ The Delhi High Court held that if an arbitral tribunal has been constituted in a
foreign seated arbitration, an application u/s 9 of the Act is not maintainable,
➢ if effective remedy is obtainable before the arbitral tribunal.
Goodwill Non-Woven Case (P) Ltd Vs Xcoal Energy & Resources LLC, 2020
➢ The party was foreigner.
➢ The party did not have assets in India.
➢ The issue was whether a court can refuse to entertain a petition u/s 9 of the Act on
the ground that a party does not have assets in India?
➢ The Delhi High Court decided that a court cannot refuse to entrain such petition as
section 9 does not require assets in India.
Section 17
Section 17: Interim Measures Ordered by Arbitral Tribunal
This section empowers the arbitral tribunal to grant interim measures during the
course of arbitration proceedings. It provides specific powers for the tribunal to issue
orders to preserve the status quo or ensure the effectiveness of the arbitration process.
Subsection (1): Application for Interim Measures
• A party may apply to the arbitral tribunal during the arbitration proceedings for
the following interim measures:
1. Appointment of a Guardian for a minor or person of unsound mind for the
purposes of the arbitral proceedings.
2. Interim Measures of Protection: The tribunal may order any of the following:
▪ Preservation, interim custody, or sale of goods that are the subject of the
arbitration agreement.
▪ Securing the amount in dispute (e.g., freezing assets or setting aside
funds).
▪ Detention, preservation, or inspection of property or things that are part
of the dispute or relevant to it. This includes:
Authorizing someone to enter the premises of a party.
Allowing for samples to be taken or observations to be made, or
experiments to be conducted, as may be necessary for evidence.
▪ Interim injunction or the appointment of a receiver to manage property
or assets during the arbitration process.
▪ Any other interim measure that the arbitral tribunal deems just and
convenient under the circumstances.
o Tribunal's Powers: The arbitral tribunal has the same powers to make orders as
the court would in its own proceedings.
This includes the authority to order interim relief such as injunctions, preserving
goods, securing assets, and more.
Subsection (2): Enforceability of Orders
• Orders of the Arbitral Tribunal: Any order passed by the tribunal under this
section is considered an order of the court for all purposes.
o It shall be enforceable under the Code of Civil Procedure, 1908, in the same
manner as a court order.
o Enforceability: The orders of the tribunal for interim measures are enforceable
just like a court’s orders, meaning they can be executed with the same legal
weight and consequences.
 o This ensures that interim relief granted by the tribunal has the same legal
standing and can be implemented effectively.

Anand Prakash Vs Asstt Registrar Co-operative Societies, 1968

➢ Interim Measures are granted during the pendency of arbitration proceeding of a
dispute and are usually in the form of injunctions, specific performance, pre-award
attachments etc.
➢ By definition, 'interim reliefs' are temporary or interim in nature and are granted in
advance of the final award of the dispute by the arbitral tribunal.
➢ Another thing that is significant to note is that the tribunal can order to discontinue
a thing for the protection of subject matter.
➢ The use of the word 'injunction' is calculatingly discouraged and avoided because
the power to issue injunction concerns to realm of the court.

Conduct of Arbitral Proceedings

18. Equal treatment of parties
The parties shall be treated with equality and each party shall be given a full
opportunity to present this case.

KP Pouluse Vs State of Kerala, 1975

An arbitrator should not act on the basis of his private knowledge but should reach to
the conclusion on the basis of the evidences produced.
19. Determination of rules of procedure
(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of
1908) or the Indian Evidence Act, 1872 (1 of 1872).
(2) Subject to this Part,
➢ the parties are free to agree on the procedure
➢ to be followed by the arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may,
subject to this Part, conduct the proceedings in the manner it considers appropriate.
(4) The power of the arbitral tribunal under sub-section (3) includes the power to
determine the admissibility, relevance, materiality and weight of any evidence.
Dewan Singh Vs Champat Singh, 1970
It was observed that the recital in the agreement that the arbitrators may decide the
disputes referred to them in "whatever manner" they think does not mean that they can
decide those disputes on the basis of their personal knowledge.
The proceedings before the arbitrators are quasi-judicial proceedings. They must be
conducted in accordance with the principles of natural justice.
Section 20: Place of Arbitration
This section governs the location of the arbitration proceedings, providing flexibility
while ensuring that practical considerations are taken into account.
Subsection (1): Agreement on Place of Arbitration
• The parties have the freedom to agree on the place of arbitration.
o This means the parties involved can decide where the arbitration will take
place, whether in a specific country or city.
o The agreed place may also influence the applicable procedural rules (e.g., legal
framework of that jurisdiction).
Subsection (2): Determination by Arbitral Tribunal
• If the parties do not reach an agreement on the place of arbitration, then the
arbitral tribunal will determine it.
o The tribunal will decide the place, considering the circumstances of the case,
including factors like the convenience of the parties.
o This ensures that the tribunal has the discretion to choose a location that
facilitates the arbitration process, balancing the interests of both parties.
Subsection (3): Flexibility of Tribunal in Choosing Meeting Locations
• Even if the parties have agreed on a place of arbitration or the tribunal has decided
one, the arbitral tribunal can meet in other locations as necessary for specific
tasks.
o The tribunal can meet anywhere it considers appropriate for purposes such as:
Consulting among members of the tribunal.
Hearing witnesses, experts, or the parties themselves.
Inspecting documents, goods, or other property relevant to the dispute.
o The tribunal is allowed this flexibility unless the parties have expressly agreed
otherwise.

M/s Inox Renewables Ltd Vs India Oil Corp Ltd

The issue was:
➢ Whether the seat of arbitration can be changed by mutual consent of the parties?
➢ The Supreme Court of India held that the courts at the new seat will have exclusive
jurisdiction, after the seat of arbitration is changed by mutual
agreement of the parties.
Sanshin Chemicals Industry Vs Oriental Carbons & Chemicals Ltd, 2001
➢ Hon'ble Supreme Court held that the decision of the arbitral tribunal on the
question of venue under S.20 would not come within making of an arbitral award
Ss.28 to 33.
➢ The said decision on the question of venue will not be either an award or an
interim award so as to be appealable under S.34 of the Act.
➢ But once the award is finally given, it can be challenged under Section 34(2) on
the ground that incorrect decision as to venue of arbitration had a
bearing on procedure.
Section 20 - Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a
particular dispute commence on the date on which a request for that dispute to be
referred to arbitration is received by the respondent.
Shetty's Constructions Company Private Limited Vs Konkan Railway
Construction and Another, 1998
➢ Hon'ble Supreme Court held that section 21 of the New Act provides a test for
determining the date of commencement of the proceedings.
➢ It is the date on which the request for referring the dispute to arbitration was
received by the respondents.
➢ This date in turn is helpful to determine the law applicable to the arbitration
proceedings, which is the one in force that day, unless the parties otherwise agree.

Section 21: Language of Arbitral Proceedings

• Subsection (1): The parties have the freedom to choose the language(s) for the
arbitration proceedings.
• Subsection (2): If the parties fail to agree, the arbitral tribunal will determine the
language(s).
• Subsection (3): The language(s) chosen or determined will apply to all written
statements, hearings, and arbitral awards, unless otherwise specified.
• Subsection (4): The tribunal can require that documentary evidence be translated
into the agreed-upon or determined language(s).
Section 22: Statements of Claim and Defence
• Subsection (1): The claimant must present the facts, issues, and relief sought
within the agreed timeline. The respondent must submit a defense, unless
otherwise agreed.
• Subsection (2): Both parties may submit documents they deem relevant and refer
to additional documents or evidence to be submitted.
• Subsection (2A): The respondent may submit a counterclaim or set-off if it falls
within the scope of the arbitration agreement.
• Subsection (3): Parties may amend or supplement their claims/defenses during the
proceedings, unless the tribunal considers the amendment inappropriate due to
delays.
• Subsection (4): The statements of claim and defense must be completed within
six months from the appointment of the arbitrators.
Case Reference: M/s G. Tech Stone Ltd. Vs BFIL Finance Ltd., 2002 — The Bombay
High Court held that allowing an amendment of the claim without considering the
relevant law or facts was improper, particularly when there were contradictory
findings and no reasons for delay in filing the amendment.
Section 23: Hearings and Written Proceedings
• Subsection (1): The arbitral tribunal can decide if oral hearings or written
proceedings will be used, unless the parties agree otherwise. Oral hearings must be
held if requested by a party, and adjournments should only be granted for good
cause, with potential costs imposed on the party seeking an adjournment without
sufficient reason.
• Subsection (2): The parties must be notified in advance about any hearing or
meeting for document inspection.
• Subsection (3): All submissions (documents, statements, evidence) from one party
must be communicated to the other party.
Case Reference: Krishan Gopal Vs Chandiprasad, 1953 — Held that any written
proceedings submitted by one party must be communicated to the other party. Similar
rulings were made in Lovely Benefit Chit Fund & Finance Case 385 regarding the
communication of evidentiary documents.
Section 24: Default of a Party
• Subsection (a): If the claimant fails to communicate their statement of claim, the
tribunal may terminate the proceedings.
• Subsection (b): If the respondent fails to communicate their defense, the tribunal
can continue the proceedings without treating the failure as an admission of the
claim.
• Subsection (c): If a party fails to appear at a hearing or provide evidence, the
tribunal can continue proceedings based on available evidence.
Case Reference: Indian Iron and Steel Co. Vs Satna Store, 1991 — The tribunal must
warn a party before proceeding ex-parte. Hemkunt Builders Vs Punjab University,
1997 — If a party ignores notices and does not contest claims, the award will sustain.
Section 25: Expert Appointed by Arbitral Tribunal
• Subsection (1): The arbitral tribunal may appoint one or more experts to report
on specific issues.
• Subsection (2): Experts may be called to participate in oral hearings, where both
parties can question them.
• Subsection (3): Experts must make all documents and materials they use available
for examination by the parties.
Case Reference: Ramanathan Vs State of Tamil Nadu, 1978 — An expert should be
independent and not aligned with a party in favor of whom their report is given.
Section 26: Court Assistance in Taking Evidence
• Subsection (1): The arbitral tribunal, or a party with approval, may apply to the
court for assistance in taking evidence.
• Subsection (2): The application must specify the names of the parties, the nature
of the claim, and the evidence sought.
• Subsection (3): The court may order the provision of evidence directly to the
tribunal.
• Subsection (4): The court may issue processes to compel witnesses or produce
documents as in its own suits.
• Subsection (5): If persons fail to attend or provide evidence, they may face
penalties, including contempt of the tribunal.
Case Reference: Mehta Teja Singh Co. Vs Union of India and Another, 1977 — The
court set aside an award where the arbitrator ignored a report and acted with gross
misconduct. Ennore Port Ltd. Vs Hindustan Construction Co. Ltd, 2007 — The court
did not allow the CBI charge-sheet to be produced before the arbitral tribunal, as it
could prejudice the respondent's case.