Extent of Judicial Intervention

The statutory limit of judicial intervention is prescribed through Section 5 of the Arbitration and
Conciliation Act, 1996. The non-obstante Clause which clearly aims at eliminating judicial interference,
stating that "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". Despite
this, there is still a large extent of intervention by Indian Courts while applying arbitration laws.

The Courts must only play a certain degree of administrative role rather than an adjudicator in an arbitral
process. The Supreme Court in the case of Surya Dev Rai V. Ram Chander Rai’ clarified its position
stating that if judicial intervention is allowed, there will be a delay in completing the proceedings. At the
same time, if there is not intervention, then an error is likely to be neglected from being corrected.
Therefore, a degree of judicial intervention can be exerted at the discretion.

Section 8- the power to refer parties to arbitration where there is an arbitration agreement. In a dispute
before the Court the subject matter of which is the subject to the arbitration agreement then the party to the
agreement or any person claiming through or under him may apply to the court to refer the parties to
arbitration at the earliest possible chance of representation given to it.

Further, Section 8(3) provides that arbitration may be commenced or continued parallel to the application
pending before the High Court and a subsequent award can also be passed.

Section 9- interim measures by Court

Judicial intervention to provide interim relief-

In instance where the arbitral tribunal is not empowered to provide interim reliefs under Section 17 of the
Act then the party may approach the Court, even during the pendency of the arbitration process.

Interim measures that the party may seek from the Court under Section 9 includes-

1. Appointment of guardian for a minor/unsound mind person for purpose of arbitral proceedings.
2. Preservation, interim custody, or sale of any goods which are subject matter to the arbitral
proceedings.
3. Securing the amount in dispute in the arbitration.
4. Detention, preservation or inspection of any property or thing which is the subject matter to the
dispute.
5. Interim injunction or the appointment of a receiver.
6. Other measures which the court may deem just and convenient.
7. Note- if the party seeks interim relief before the initiation of court proceedings, then the
arbitration proceedings must commence within a period of 90 days from date on which such
order was give.

In the case "M/S. Sundaram Finance Ltd. v. M/S. N.E.P.C. India Limited', the Supreme Court identified
that Section 9 of the Act is used as a mechanism to delay pending arbitration proceedings. It held that the
intention of Section 9 is for civil courts to assist the tribunal in expeditious resolution. Parties can't
frivolously utilize this provision to delay proceedings.

Section 11- Appointment of arbitrator. If the parties fail to appoint an arbitrator as per the procedure
determined by their agreement or this section or in case of three-panel arbitrators the two arbitrators fail to
appoint a principal arbitrator then the party may request the Supreme Court, High Court or any person or
institution designated by such Court for the appointment of the arbitrator.
Section 27- court assistance in taking evidence. This section provides that the arbitral tribunal or a party
with the approval of the tribunal may apply to the court for assistance in taking evidence. The court may
provide that the evidence be directly be provided to the arbitral tribunal.

Section 34- application for setting aside arbitral award. The party aggrieved by the arbitral award may make
an application to the Court. Section 34(2) provides that an arbitral award may be set aside by the court only
if-

● The party making an application can establish that it was under some incapacity.
● The arbitration agreement is not valid under the law.
● The party making the application was not given proper notice of the appointment of an arbitrator
or of the arbitral proceedings or was otherwise unable to present his case.
● Arbitral award deals with a dispute which is beyond the ambit of the arbitration agreement.
● That the composition of the arbitral tribunal is not in accordance with the agreed procedure
between the parties.
● The Court finds that the subject matter of the dispute is not capable of settlement by arbitration
under law in force.
● The Court finds that the arbitral award is in conflict with the public policy of India. Award is
deemed to be against public policy only if-
○ Making of the award is induced or affected by fraud or corruption or was in violation of
Section 75 or Section 81.
○ Award is in contravention with the fundamental policy of Indian law
○ Award conflicts with the most basic notions of morality or justice.
● Court is satisfied that the award is vitiated by patent illegality appearing on the face of the award.
● But award cannot be set aside merely on the ground of an erroneous application of the law or by
reappreciation of evidence.
● Further, application to set aside award has to be made within 3 months from the date on which the
party received the arbitral award.

The Indian courts have increasingly been seen moving towards the regime of judicial minimalism in arbitral
proceedings. The Supreme Court in "State of Jharkhand v. HSS Integrated SDN & Anr', while dealing
the extent of judicial interference in Section 34 proceedings, held that when there are numerous plausible
views and the arbitrator's views are reasonable, they must not be questioned as per Section 34 of the Act.

Conclusion

In essence, in case of establishment of an arbitral tribunal, the parties should seek the tribunal only for
providing an interim relief under Section 17 of the A&C conciliation and the court should intervene only in
the case when the arbitral tribunal has not yet been established or in case it is established then intervene only
in the case where tribunal cannot provide an efficacious remedy.