ADR Notes

Module 1: Introduction to ADR

• Evolution of ADR
• Globalization of ADR
• The Global Pound Conferences
• 1906 – ‘The Causes of Popular Dissatisfaction with the Administration of Justice’
• 1976 – The ‘multi-door courthouse’ of the future (Sander)
• 2016 – What the future holds
• India: A bit late in the game?
• Section 89 CPC, 1908 (with numerous amendments)
• Article 39A, Constitution of India, 1950
• Malimath Committee (1989-1990)
• Arbitration and Conciliation Act, 1996 (with numerous amendments)
• Is the reference to ADR a mandate upon the court? What is the procedure which has to be
followed by the court while referring a case to ADR under Section 89?
• Salem Advocate Bar Association v Union of India (2005)
• Mandated ‘in cases which can be referred for ADR’
• Record nature of dispute, check if referral is possible and reason accordingly. If
arbitration/conciliation, need for parties’ consent.
• How can the court decide the appropriate ADR process? What types of cases are suitable for
ADR processes?
• Afcons Infrastructure v Cherian Verkay Construction (2010)

• Cases ‘unsuitable’ for ADR Processes:

i. Representative suits under Order 1 Rule 8 CPC
ii. Dispute relating to Election to Public Offices (excluding disputes between two groups
regarding management of Societies, Clubs, Association etc.)
iii. Cases involving grant of authority by the Court after enquiry for example, suits for grant of
probate or letter of administration.
iv. Cases involving serious and specific allegations of fraud, fabrication of documents, forgery,
impersonation, coercion, etc.
v. Cases requiring protection of courts for example, claims against minors, deities and mentally
challenged and suits for declaration of title against the Government.
 vi. Cases involving prosecution for criminal offences.
• Cases ‘suitable’ for ADR processes:
i. All cases relating to trade, commerce and contracts (including all money cases):
• disputes arising out of contracts (including all money claims);
• disputes relating to specific performance;
• disputes between suppliers and customers;
• disputes between bankers and customers;
• disputes between developers/builders and customers;
• disputes between landlords and tenants/licensors and licensees; and
• disputes between insurer and insured.
ii. All cases relating to tortious liability, including claims for compensation in motor
accidents/other accidents.
iii. All consumer disputes, including where a trader/supplier/manufacturer/service provider is
keen to maintain his business/professional reputation and credibility or product popularity.
iv. All cases arising from strained or soured relationships, including
• disputes relating to matrimonial causes, maintenance, custody of children;
• disputes relating to partition/division among family members/coparceners/co-owners; and
• disputes relating to partnership among partners
v. All cases where there is a need for continuation of the pre-existing relationship despite the
disputes, including
• disputes between neighbors (relating to easement rights, encroachments, nuisance, etc.);
• disputes between employers and employees; and
• disputes among members of societies/associations/apartment owners’ associations.

HISTORY

• the creation of icc – handles the most commercial arbitration, is an arbitral institution
• 1922 – under icc, major trading nations negotiated the geneva protocol
• recognise arbitration agreements and awards happened from then
• two documents – new york convention 1958, 169 signatories – it focuses on enforcement of
foreign arbitral awards between two member states
• UNCITRAL model law 1985 – is soft law or model law, they are binding they play an
informational value. Model law can become law if country adopts it or a part of it as its
national law
Module 3: Arbitration – Arbitrability, Arbitration Agreement and Parties, Non-Interventions

• Will not find a universally accepted definition.

• There are three elements that define it -
◦ consent- most in adr mechanism. Adjudicatory power of arbitrators is on the consent of
the parties. The parties can agree what rules will govern. There are several limitations.
Consent is the fundamental jurisdictional requirement for arbitration.
◦ This consent is visible through the arbitration clause in the form of an arbitration
agreement
• Institutional arbitration and language of proceedings -
◦ arbitration agreement has a forum selection clause, it excludes jurisdiction of the courts
• then, consent – what if there is no arbitration agreement (AA), havent said anything about
arbitration
• If both want to go by arbitration can still do so by a submission agreement
• the submission agreement is not in the contract, but still valid
• applicable laws – when there are many jurisdictions involved
• there is several laws – the law of the seat, and both the parties – these are conflicting
• what about the arbitration rules chosen
• the three main laws in arbitration -
• substantive law – the law that governs our contract
◦ if there is a breach, under that law will matter
• law governing the arbitral proceedings – lex arbitri
• the law applicable to the conduct of proceedings – when will start how, time limits, which
law going to tell me HOW courts are going to help
• law governing the arbitration agreement – it is severable – court has to decide whether it is
valid
• Issue - if there is a pathological clause, needs to be interpreted
• Consent provides for underpinning of arbitrators power – they are expected to apply the
rules and laws agreed by the parties
• the adjudicatory power vests with the tribunal, they do not belong to any government
authority, are appointed by the parties. Arbitrator primary responsibility is what parties have
chosen to be decided
• the fact that parties choose arbitrators, makes them voluntarily comply and trust
• they are expected to be independent and impartial, without which they can be challenged
 • institutional – every institution has own rules that has procedures, when there is an award
auspices of an institution has more credibility, may be more difficult to annul is likely to be
enforced
• Final, Binding, Enforceable award – it is a final and binding award which generally cant be
appealed
• party can challenge only in case of a procedural discrepancy , it is final and binding with res
judicata effect
• Losing party may try to get enforced where losing party has assets
• It cannot be challenged on its merits only on procedure
• It generally has same effect as judgement in that jurisdiction
• Is our dispute and subject matter capable of being resolved – relates to arbitrability , it is a
jurisdictional requirement , the losing party can challenge award to deny enforcement if it is
not arbitrable

Disadvantages Of Arbitration
• less discovery
• no right to appeal

Arbitrability

Arbitrability – has to do with the claim being brought

• now there is a more arbitration friendly stance
• family, criminal – cannot be
• competition law claims, mergers etc and anti trust claims
• derivative claims – claims by shareholders of a company
• majority minorty – there maybe conflict of interests between shareholders
• the shareholders are not contracting parties, arbitration is a question of consent of both
parties
• if someone is not in the arbitration agreement then cant go to the court
• derivative claims – parties not consent – so is not arbitrable
• need to make act conclusive of derivative claims
• or make a broader arbitration clause to include those not in the agreement

ARBITRABILITY – Vidya Drohi Four Fold Test

Arbitrability when it comes to fraud – it contains a criminal component
competition law claims, derivative claims, - cant be arbitrated in india

Vidya Drohi v. Durga Trading Corp.

• Issue- Are disputes between landlord and tenant under TPA arbitrable?
• Precedents:
◦ 1981-Natraj Studios- S.C. was asked to refer parties under S.8. Dispute was regarding a
specific rent control act. Court dismissed application, saying that cannot sent parties
◦ 2011- Booz Allen- S.C. held that if you have to evict a tenant in pursuance to a special
legislation tenant is given statutory protection, as a result only courts specified in act will have
jurisdiction to hear matter to arbitral tribunals.
◦ 2017- Himangini Enterprises- regarding TPA, If there are matters between landlord and
tenant under TPA, they will not be heard by tribunals but by court.
• S.C.- overruled Himangini, holding that disputes between landlord and tenant under TPA are
arbitrable. There is nothing in act which bars the application of arbitration. So far as the landlord
and tenant disputes arise out of special rent control disputes, only then will it not be arbitrable.
• Non arbitrability
◦ cause of action or subject matter of dispute pertains to a right in rem and not right in
personem
◦ the subject matter of dispute does not just affect two persons but affects third parties or
operates against world in general
◦ when specific act bars usage of arbitration as a dispute settlement mechanism (Ex: disputes
under Industrial disputes act, matrimonial disputes).
◦ In conjunction with the state
• which forum will decide if the matter is arbitrable? Tribunal can answer whether they are
empowered to hear the case under S.16, H.C under 11, Civil court under S.8

Seat Of Arbitration
• the seat is the judicial base the juridical base of the arbitration
• the venue does not define the governing law but the seat does
• therefore need to choose the right seat
• there are some seats that are understood as safe
• one of the most important functions of the seat is that it determines the governing law of the
arbitral proceedings
IT IS NECESSARY TO KNOW THE SEAT OF ARBITRATION BECAUSE THAT COURT
HELPS DURING ARBITRATION

Stages of Relief -
• before - interim relief
• during - evidence collection
• after - challenge the arbitral award – section 38 lays down when an award can be annulled
challenged invalidated
• where to enforce – in the country where the losing party has assets
• indian courts were uncomfortable with indian parties choosing a seat that is foreign
• while parties have freedom to choose in arbitration, there is also the risk of forum shopping
– evading indian laws

Arbitration Agreement

• The ‘seat’ of the arbitration – not just the venue of where the proceedings take place

the seat is the juridical base of the arbitration

by selecting a given place, we place it within the legal framework of a country
the seat is the place where the arbitration will take place
the seat is not just where it happens
the venue is just the location
should choose the right seat, it is significant
some venues are safer – london singapore etc
because some courts take a pro arbitration stance, parties would prefer

• Significance of choosing the right seat

one of the most important functions is that it determines the law that governs the arbitral
proceedings
we need to be as minimal and helpful to the arbitration as possible – the courts
like interim relief
the adjudication of main claim must happen in the tribunal
consent, privity
if the arbitral tribunal wants to collect evidence, they cannot – this is why when arbitration is started
we go to the courts to adjudicate disputes
when the arbitration completes, tribunal stops having jurisdiction – functus officio – can challenge
an arbitral award
challenge – set aside, cancel can challenge only with grounds of law
non enforcement – enforce where losing party has assets not within jurisdiction
indian courts were hesitant to allow indian parties choosing foreign seat
allows forum shopping

two indian parties choose a foreign seat -

• Mandatory provisions
• Supportive & supervisory role of courts
• Scope of challenges to the award
• What about a ‘foreign’ seat?
• Party autonomy v (non-permissible) forum shopping
• The jurisprudential saga culminating in PASL Wind Solutions v GE Power Conversion India
(2021)1
supreme court – yes there is shopping, just accept if they did it to circumvent a mandatory provision
of indian law, when they come to enforce the arbitral award it can be rejected on the ground of
public policy

• Arbitration Agreement essentials

arbitration is a creature of consent
arbitration clause – we want to relinquish right to approach courts, and limit us to private justice
through arbitration
it is only the arbitral tribunal that has rights

• Function and purpose

 • Forum selection agreement => in principle noninterference by state courts:

• Judicial intervention – s 5 ACA 19962: ‘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.’ => Limited judicial intervention:
so principle is no court intervention without mandatory provisions
can help for enforcement challenge, evidence etc – arbitration act tries to regulate these things

▪ Pre-arbitration (e.g., ss 8, 9, 11 ACA)

▪ During arbitration (e.g., ss 14, 27 ACA)
▪ Post-arbitration (e.g., ss 34, 39, 41, 43 ACA)

• Referral by state court of the parties to arbitration in case of a prima facie valid arbitration
agreement – S 8 ACA 19963: ‘(1) A judicial authority, before which an action is brought in a matter
which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any
person claiming through or under him, so applies not later than the date of submitting his first
statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of
the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no
valid arbitration agreement exists.’ 4
• Sec 8 – if there is a valid AA, court has no jurisdiction
• Unless court finds the AA is inoperable incapable of being performed, null and void
• null and void – invalid and doesnt hold in the first place, doesnt exist
• duress, misrepresentation, lack of capacity – this renders it null and void
• is not a clause, an arbitration agreement can either be – a clause in the contract or through a
submission agreement
• this means – for all future disputes only arbitral tribunal will have jurisdiction
• it is a contract inside a contract, but it is also AUTONOMOUS
• in case something goes wrong with main contract, does not necessarily invalidate the
arbitration agreement which is regarded as separate
• aa has to be valid – including ny convention
• should have specific rules to determine if it is valid -

• Arbitration clause v submission agreement

 • ‘Separability’ of the arbitration agreement – s 16(1)(i) ACA 1996: ‘an arbitration clause which
forms part of a contract shall be treated as an agreement independent of the other terms of the
contract[.]’
• Formal & substantive validity of the arbitration agreement5 – s 7 ACA 19966: ‘(1) In this Part,
‘arbitration agreement’ means an agreement by the parties to submit to arbitration all or certain
disputes which have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not.

Resembles the Uncitral Model Law

agreement – need to have consent of both parties – to agree to be bound by the tribunals decision
and to take part in the process
this has to be conduct – must mutually choose arbitration
in uncitral law it can be just communication between parties, in India there is a writing requirement
it must try to resolve and define a legal relationship – like a contract

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form
of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in–
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication [including
communication through electronic means] which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the agreement is
alleged by one party and not denied by the other.
(5) The reference in contract to a document containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing and the reference is such as to make that
arbitration clause part of the contract.’

Discerning the parties’ intention to enter into an arbitration agreement – Jagdish Chander v Ramesh
Chander & Ors. (2007)
it tried to set out principles for arbitration – intent of parties to be bound by private justice, and be
bound by the tribunal
parties have to disclose obligation to be bound by arbitration
parties consent should exist – not just to enter the procedure but to be bound by it

institutional and ad hoc

institutional rules have model clauses – is an advantage

Elements of an arbitration agreement:

• In writing
• Consent to refer disputes to arbitration
• Intent to be bound by award
• Adjudication by an impartial tribunal

• Caravel Shipping Services v Premier Sea Foods Exim (2019) – No mandatory signature
requirement8 (but would still need to be in writing9)

• Institutional arbitration: Model arbitration clauses – e.g., LCIA Arbitration Rules 2021
recommended arbitration clauses:
• For future disputes: ‘Any dispute arising out of or in connection with this contract, including
any question regarding its existence, validity or termination, shall be referred to and finally resolved
by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into
this clause. The number of arbitrators shall be [one/three]. The seat, or legal place, of arbitration
shall be [City and/or Country]. The language to be used in the arbitral proceedings shall be [ ]. The
governing law of the contract shall be the substantive law of [ ].’
• For existing disputes: ‘A dispute having arisen between the parties concerning [ ], the parties
hereby agree that the dispute shall be referred to and finally resolved by arbitration under the LCIA
Rules. The number of arbitrators shall be [one/three]. The seat, or legal place, of arbitration shall be
[City and/or Country]. The language to be used in the arbitral proceedings shall be [ ]. The
governing law of the contract [is/shall be] the substantive law of [ ].’
• Interpretation of arbitration agreement – according to the law applicable to it (a debate in itself),
BUT:
• Baltic Confidence v State Trading Corp. of India (2001):
The Supreme Court held that the arbitration clause applied to suits arising under the Bills of
Lading, so the High Court should have granted the request of the Baltic’s owners to stay the suit and
submit the dispute to arbitration. It found that, despite minor linguistic discrepancies in the text of
the Bills of Lading, the parties clearly intended the arbitration clause to be incorporated. Because
incorporation would not yield absurd or unworkable results, the Court deemed itself bound by the
intention of the parties.

• Enercon India v. Enercon GMBh (2014):

An arbitration agreement cannot be avoided on the basis that there is no concluded contract between
the parties. A reference to arbitration can only be avoided (in the context of international
commercial arbitration) if the arbitration agreement is ‘null and void, inoperative or incapable of
being performed’. An averment that the underlying contract containing the arbitration clause is not a
concluded contract does not, in the view of the Court, fall within the scope of these phrases.

In determining whether an arbitration clause is unworkable or incapable of being performed, “the

court ought to adopt the attitude of a reasonable business person, having business common sense as
well as being equipped with the knowledge that may be peculiar to the business venture. The
arbitration clause cannot be construed with a purely legalistic mindset, as if one is construing a
provision in a statute.”

1- validity – is there a valid arbitration agreement

2 – severability – contracts invalidity does not change the AA
3 – operability – is it operable – who will appoint third arbitrator, does this make the otherwise valid
aa operable – need to give effect to the parties intent by any means
4 – governing law of the proceedings have been said, even parties choice of indian law of
proceedings shows they want that to be the law of the seat, intended for the seat to be in India
seat – closeness
5 – concurrent jurisdiction – do english courts have parallel jurisdiction – no, because the parties
wanted the contract to be governed by Indian law. Once the seat has been fixed, then only indian
court that is the seat has jurisdiction

venue – where the arbitration happens , no legal implicationss

seat – the procedural rules that govern the arbitral proceedings

sec 4,5 – continues to be valid

Basis to challenge award -

indian court i want to be annulled sec 34 – public policy , procedure etc

Handout – Arbitration Agreement (2)

• validity of the main contract does not hamper the validity of the main agreement
• it is a dispute resolution clause that is final and binding
• sec 5 – in principle, courts will not intervene
• sec 8 – if a party approaches the courts, if the court sees that the aa is valid, and is not
invalid it has to refer the parties to arbitration
• how to decide the AA is valid – formal and substantive validity– sec 7 -
• here there are many conflicting laws
• we need to find the agreement – the consent of the parties to enter and be bound – intent
relates to both, intent has to be mutual –
• there has to be CONSENT to enter arbitration
• second intention is to be BOUND
• Written, Signed – the aa must exist
• Impartial Tribunal – no bias, must be independent and impartial – subject of dispute and
parties must be separate
• Must exist in a defined legal relationship
• Specific types of arbitration agreements
• Pathological clauses
• Presumptive validity of arbitration agreements, UNLESS inconsistency, uncertainty, or in
operability.

• Asymmetrical (unilateral option) clauses1

• Lack of mutuality?
• Multi-tier clauses2
• Pre-arbitral conditions precedent or optional procedural tools?
• Parties to the arbitration agreement
 • Natural persons
• Legal persons
• States/state entities
• Third parties
• Binding non-signatories to the arbitration agreement?
• Multi-party & multi-contract arbitration

• Laws applicable to arbitration

when it comes to substantive law - if the lex arbitri is india – then apply aca

You should be able to discern the following legal frameworks:

• Law governing the substantive contract
• Law governing the arbitral proceedings (lex arbitri)
• Law governing the arbitration agreement
• Law of the jurisdiction(s) where the arbitral award may be enforced

• Drafting & enforcing (international) arbitration agreements

• See next class

1 E.g., see the clause from the contract in the case Bhartia Cutler Hammer v AVN Tubes: ‘Without
prejudice to the above Clause 17, of the contract the Company, Avn Tubes Limited, reserves its right
to go in for arbitration, if any dispute so arisen is not mutually settled within 3 months of such
notice given by the Company to the Contractor. And, the award of the Arbitrator, to the appointed
by the Company, Avn Tubes Limited, shall be final and binding on both the Company and the
Contractor.’

2 E.g., see the clause from the contract in the case Medissimo v Logica: ‘In case of any dispute or
claim arising out of or in connection with or under this […contract], the Parties shall first seek to
resolve the dispute or claim by friendly discussion. Any party may notify the other Party of its
desire to enter into consultation to resolve a dispute or claim. If no solution can be arrived at in
between the Parties for a continuous period of 4 (four) weeks then the non-defaulting party can
invoke the arbitration clause and refer the disputes to arbitration.’

Binding non signatories

insolvent – parent company
Applicable law -
Arbitration agreement – expands above and then beyond to include other parties
• Arbitration rules – rules chosen by the parties to cover certain proceedings, as in the case of
institutional arbitration, they can go through the rules
• Most of these are not mandatory – have to be consented to by the parties
• May choose rules where the law is silent etc
• Guidelines too not mandatory
• National laws – can be of two kinds – national laws governing the substance of the dispute
the substantive laws, the second set is the lex arbitri the law of the seat of the arbitration
• International arbitration practice
• What will prevail – consent, what is mandatory in the law
• Convention is binding, model law is not
• Lex arbitri that is mandatory will prevail, otherwise rules chosen

SECTION 28 ACA -

28.Rules applicable to substance of dispute.—(1) Where the place of arbitration is situate in

India,—
(a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall
decide the dispute submitted to arbitration in accordance with the substantive law for the time being
in force in India;
(b) in international commercial arbitration,—
(i) the arbitral tribunal shall decide the dispute in accordance with the rules of law designated
by the parties as applicable to the substance of the dispute;
(ii) any designation by the parties of the law or legal system of a given country shall be
construed, unless otherwise expressed, as directly referring to the substantive law of that country
and not to its conflict of laws rules;
(iii) failing any designation of the law under clause (a) by the parties, the arbitral tribunal
shall apply the rules of law it considers to be appropriate given all the circumstances surrounding
the dispute.
(2) The arbitral tribunal shall decide ex aequoet bono or as amiable compositeur only if the parties
have expressly authorised it to do so.
1
[(3) While deciding and making an award, the arbitral tribunal shall, in all cases, take into account
the terms of the contract and trade usages applicable to the transaction.]

conflict of law rules

when we have choice of law, indian law then apply Indian substantive law

Enka V Chubb
• seat of arbitration is london
• no express or implied choice of law
• the implied intention of the parties is to be bound by english laws
• there can be a distinction between arbitration agreement and parent contract – it is severable
• Where there is no express choice of law to govern the contract, a clause providing for
arbitration in a particular place will not by itself justify an inference that the contract (or the
arbitration agreement) is intended to be governed by the law of that place.
• In the absence of any choice of law to govern the arbitration agreement, the arbitration
agreement is governed by the law with which it is most closely connected. Where the parties
have chosen a seat of arbitration, this will generally be the law of the seat, even if this differs
from the law applicable to the parties’ substantive contractual obligations.

Kebab Case:

• Because parties expressed interest in english law – that shouws they want to bind by it
• Any change in agreement had to be in writing – so the change cant be part of the contract
• Contract law – aa is a subsection of a larger contract
• Any obligations arising from the contract have no association with aa
• Seat of arbitration law does not really apply
• When the aa has not mentioned, then substantive law kicks in
• Lex arbitri – the procedural law that comes to arbitration
• Aspects in the contract which dont affect the arbitration agreement

BALCO CASE –
• Matters of territoriality and jurisdiction
• Seat and venue are not the same
• Seat links the laws apply to the aa
• Venue is independent

• If seat is in india – then aca kicks in

• In india the lex arbitri governs the arbitration agreement
• S 16(1)(i) aca 1996: ‘an arbitration clause which forms part of a contract shall be treated as
an agreement independent of the other terms of the contract[.]’
• Section 16(1) is separability
• Binding non signatories – more parties involved, courts in most jurisdictions are fine with it
• Meet minimum criteria of validity -
• Capacity – domestic law of both parties will explain if the party is capable of entering the
agreement
• Seat – must be both business and arbitration friendly
• Intent – must have consent to enter and be bound
• Substantive law – if we agree our substantive law will govern our contract, then will be ice
• Aa – law governing this is what parties agree expressly, if not separately specified. Could be
distinct from substantive law, must be agreed upon
• Lex arbitri – law of the seat to govern the proceedings

• We have choice to enter institutional arbitration

• For parties who dont have lots of time to create rules, will go under the auspices of icc
• Otherwise they can go for ad hoc arbitration through uncitral rules
• Model clause says the substantive law of the country will apply
• The language – what is to be used specified
• Arbitrators – have to be as specific as possible, either one or three
• Can specify what kind of arbitrators you want – engineer, scholar etc
• Then specify the appointment of the tribunal – each party appoint, and then appoint a third
or appointing authority act
• Location of assets - where to enforce arbitral award – where losing party has assets
• Is the dispute arbitrable - in india tribunal cannot hear fraud, anti-trust
• Pathological clauses – escalation clauses multi-tier clauses – first negotiation, then
arbitration
• Another example is unilateral clauses, in principle these are allowed. Multi-tier needs to
make sure there is some kind of time limit eg – negotiation should last 30 days.
• To write a waiver – the state authority cannot claim against you
(International) Arbitration Agreements Toolkit & Exercises
Toolkit
• Capacity of the parties to enter into the arbitration agreement.
• Choice of seat of arbitration => lex arbitri.
• Clear and unambiguous intent to refer existing or future disputes to arbitration (contractual or
not) with clear reference to the scope of the arbitration agreement.- if no intent this scrutiny will not
save the clause
• Choice of governing law of the main contract (substantive law).
• Choice of governing law of the arbitration clause/agreement, if so required.
• Choice of procedural law governing the arbitral proceedings (i.e., juridical seat of arbitration).
• Choice of institutional arbitration or ad hoc arbitration – e.g. LCIA Rules Model Clause: ‘Any
dispute arising out of or in connection with this contract, including any question regarding its
existence, validity or termination, shall be referred to and finally resolved by arbitration under the
LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number
of arbitrators shall be [one/three]. The seat, or legal place, of arbitration shall be [City and/or
Country]. The language to be used in the arbitral proceedings shall be []. The governing law of the
contract shall be the substantive law of [].’
• Language to be used in the arbitral proceedings.
• Choice of arbitrators – number, qualifications and attributes.
• Method of appointment of the tribunal – if several parties under one contract – Provisions to
have arbitrators in odd numbers.
• Existence of an appointing authority.
• Location of the assets and law(s) governing the enforcement of the award.
• Arbitrability of the dispute – national laws of the seat of arbitration play a major role in
deciding whether a dispute is arbitrable or not.
• Scope of allowing third parties and non-signatories to be bound by the arbitration agreement.
• Multi-tier dispute resolution clause:
• The clause should specify a period of time for negotiation or mediation, triggered by a defined
and undisputable event (ie, a written request), after which either party can resort to arbitration.
• The clause should avoid the trap of rendering arbitration permissive, not mandatory.
• Multiparty agreements – provisions to accommodate consolidating arbitrations involving
multiple parties:
 • The clause should address the consequences of the multiplicity of parties for the appointment of
the arbitral tribunal, or potential joinder of third parties.
• Multi-contract arbitrations:
• The arbitration clauses in the related contracts should be compatible.
• The parties should consider whether to provide for consolidation of arbitral proceedings
commenced under the related contracts.
• Special provisions for confidentiality to be included or not.
• Waiver of state immunity (if applicable).

Module 4: Composition and Jurisdiction of Arbitral Tribunal

• The principle of kompetenz-kompetenz – s 16 ACA 1996: ‘(1) The arbitral tribunal may rule on
its own jurisdiction, including ruling on any objections with respect to the existence or validity of
the arbitration agreement, and for that purpose –
(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent
of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the
submission of the statement of defence; however, a party shall not be precluded from raising such a
plea merely because that he has appointed, or participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as
the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3),
admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and,
where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings
and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application for setting aside such an
arbitral award in accordance with section 34.’

the ONLY competent authority to rule on jurisdiction is the tribunal

separability is to ensure that the intention of the party does not evaporate
kompetenz kompetenz – cannot challenge tribunal, it will decide
courts only have some kind of supervision role
improper constitution of tribunal can be a ground

even in severability the court can keep case if null and void
can court go into substance of case

court will decide on validity – same issue in jurisdiction

the major issue – two provisions sec 8 and 45

part 1 and part 2

part 1 talks about arbitrations seated in India, because india is the seat, courts can be more
supervisory
part 2 is about arbitrations not seated in India, but is for matters of enforcement in india
competence is limited to recognising and enforcing arbitral award

• Allocation of jurisdictional competence between arbitral tribunals and domestic courts1

• Referral to arbitration
• Domestic arbitrations – s 8 ACA: ‘(1) A judicial authority, before which an action is brought in
a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement
or any person claiming through or under him, so applies not later than the date of submitting his
first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order
of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no
valid arbitration agreement exists.’ 2

What is this prima facie examination of arbitration agreement -

have to make sure courts done exceed jurisdiction

EMAAR MGF Land Ltd. v. Aftab Singh (2019) -

aca is the procedural law

aa is said to be valid – yes parties must be referred to arbitration as their forum, parties choice must
be prioritise
cannot circumscribe mandatory provisions of law
if following prima facie review, if the aa is found to be invalid – then

LAW COMMISSION 246 REPORT – if the authority is of the opinion that the agreement prima
facie exists, must send parties to arbitration , tribunal will decide the rest – tribunal has kompetenz
kompetenz – tribunal can then later find aa invalid

if found invalid – then cannot go to arbitration , this is the case where it is FINAL for the tribunal ,
forbidden to go to arbitration, tribunal then cannot decide anything
the tribunal can only do what the aa delineates

if parties cannot agree on tribunal appointment, in india courts will help outside institutions

aca is based on the uncitral model law, but this part is a deviation from it

number of arbitrators -
Sec 10

• Number of arbitrators
• s 10 ACA: ‘(1) The parties are free to determine the number of arbitrators, provided that such
number shall not be an even number.
(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a
sole arbitrator.’

free to determine
1,3,5

MMTC v Sterlite Industries

AA helps us
two and an umpire
is sec 10 mandatory was dealt with
sec 7(3) and (4) aa just has to be in writing – nothing to indicate no of arbitrators for validity of aa

an aa that specifies even number CANNOT BE A GROUND TO CHALLENGE VALIDITY OF AA

this is still good law
cited as good law in - Lohia v Lohia (2002)

parties can agree on even number, doesnt disrupt the validity of the aa
they took sec 10 – logically should not be done , whether this section is mandatory -
SEC 10 IS OPTIONAL
it is not a mandatory provision

public policy is ground for challenge and non enforcement of award – THIS DOES NOT COME
WITHIN PUBLIC POLICY, NUMBER OF ARBITRATORS CANNOT BE STRUCK DOWN
UNDER PUBLIC POLICY

Sec 11 lays down the appointment of arbitrators

• Appointment of arbitrators – s 11 ACA

• Nationality of arbitrators – s 11(1): ‘A person of any nationality may be an arbitrator, unless
otherwise agreed by the parties.’ & s 11(9): ‘In the case of appointment of sole or third arbitrator in
an international commercial arbitration, [the Supreme Court or the person or institution designated
by that Court] may appoint an arbitrator of a nationality other than the nationalities of the parties
where the parties belong to different nationalities.’
• Qualifications of arbitrators – Eight Schedule (2019 Amendment): 9 categories – limited pool
(advocate, a chartered accountant, a cost accountant or a company secretary etc. plus a decade of
experience)
• Procedures for the appointment of arbitrators

WHO CAN THE ARBITRATORS BE – WHOEVER I WANT

Sec 11(1) and (9) relates to nationality of parties – any nationality unless otherwise agreed

unfortunately leads to appointment of same profile, and same arbitrators repeatedly

11(6) - (6) Where, under an appointment procedure agreed upon by the parties,—
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under
that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under
that procedure,
a party may request 1 [the Supreme Court or, as the case may be, the High Court or any person or
institution designated by such Court]to take the necessary measure, unless the agreement on the
appointment procedure provides other means for securing the appointment.

PARTIES CHOICE PREVAILS,

interim relief and emergency arbitrators

emergency arbitrator is a form of interim relief
some institutional rules give emergency option like in singapore and icc rules
many emergency awards come to be enforced in India

when there are three – either party appoints and then they appont one – this is the rule unless
otherwise agreed

what we have in terms of law – SEC 11- 6 AND 6A

Pravin Electricals v Galaxy Infra and Engineering (SC, 2021)

is a revision on arbitrability

is a sec 11 (6) application

is a section 11 6 application for a sole member tribunal

in this agreement the respondent contends that the aa says the sole arbitrator should be appointed,
appoints one. The other party does not agree

two schools of thought – the court will have a more judicial role or the court will have a more
administral role – say to the tribunal you know the provisions i think the we should appoint
arbitrator, tribunal take the case

the court will have minimal intervention as is the logic in section 8 , review will be only prima facie
court should only see that aa is valid and existent

the prima facie review cannot be thorough by the court

starts with vidya drolia – who decides on arbitrability – the nature and scope of courts involvement
is the contention

COURTS CANNOT BE JUDICIAL, CANNOT BE SO INTRUSIVE

court will have minimal intervention as the logic in sec 8
looks at existence and validity of aa – the standard of review of sec 8 is the same
sec 11 and 8 are related – minimal involvement of court

Sanjiv Prakash v Seema Kukreja (SC, 2021)1

holds similar to praveen electrical

classic scneraio – choose each arbitrator, together choose third

cannot choose arbitrator to be a second lawyer

when to choose arbitrator

• Party-nominated arbitrator selection toolkit (factors)
• Nationality – want to choose a nationality of same , civil law common law clashes are not there
• Likely disposition
• Potential impact on selection of the chairperson
• Availability -
• Familiarity with relevant business or industry involved in the dispute
• Familiarity with law governing contract – should grasp the law aspect
• Familiarity with arbitration practice
• Potential procedural preferences
• Language - both procedure and contract
• Standing and reputation
• Impartiality & independence

necessary to be impartial and independent for the arbitrator

should not be related to subject and parties

gray areas – require disclosure as per iba guidelines

burden of proof – who needs to prove what
standard – how much you have to prove

must prove justifiable doubts

the party bringing the allegation must prove justifiable doubt on arbitrator

if he has not made disclosure for example

Section 12 – challenge – requirement to disclose - section 12 – challenge – the requirement to

disclose what for the arbitrator and when, what happens if he doesnt do it

Disclosures by arbitrators (content, timing & failure to disclose)

S 12(1) ACA: ‘When a person is approached in connection with his possible appointment as an
arbitrator, he shall disclose in writing any circumstances,—
(a) such as the existence either direct or indirect, of any past or present relationship with or interest
in any of the parties or in relation to the subject-matter in dispute, whether financial, business,
professional or other kind, which is likely to give rise to justifiable doubts as to his independence or
impartiality; and
(b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular
his ability to complete the entire arbitration within a period of twelve months.
Explanation 1.— The grounds stated in the Fifth Schedule* shall guide in determining whether
circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an
arbitrator.
Explanation 2.— The disclosure shall be made by such person in the form specified in the Sixth
Schedule.’

*Justifiable doubts – Fifth Schedule:

• When the arbitrator has some kind of relationship with the parties or their lawyers or law firms
• When the arbitrator has some kind of relationship with the dispute - has given legal advice
expert evidence
• Arbitrator’s direct/indirect interest in the dispute – is a shareholder of one the parties, wife is a
shareholder
• Arbitrator’s multiple appointments/previous services for one of the parties – halliburton case
 • Arbitrator’s relationship with another arbitrator/counsel
• Arbitrator’s relationship with party and others involved in the arbitration – must involve some
kind of interest

The arbitrator challenged IS PART of the tribunal, this is a part of kompetenz

can have appointing authority adjudicate but not in India

GROUNDS TO CHALLENGE ARE IN SCHEDULE 5 THAT SPEAK ABOUT POTENTIAL

SCENARIOS THAT GIVES RISE TO JUSTIFIABLE DOUBT

disclosure is mandatory for arbitrators

cannot be disqualified for not making a disclosure , but this is used as a factor

the party that wants to challenge must show evidence and show justifiable doubts

when disclosure – arbitrator before appointment

can be disqualified sometimes even despite disclosing

disclosure is mandatory for arbitrators

multiple appointments / previous services – cannot be disqualified merely for not making the
disclosure, but – the non disclosure is used as an element to substantiate the bias of the arbitrator

party that wants to prove justifiable doubts must prove

from lawyer standpoint this is most interesting – to prove justifiable doubts on arbitrator

duty of disclosure is an ONGOING one, can be even after appointment

section 12

venire contra factum proprium = estoppel – inconsistent behaviour -

if she knew, and agreed to appointment – then ESTOPPED from challenging the arbitrator
cannot go against the behaviour you already had – so you cannot challenge arbitrator if it was in
your knowledge before
Indian Oil Corp. v Raja Transport - there is a potential ground that the arbitrator is one of the
employees, but the other party AGREED -

would there be then a presumption against arbitrator – NO. If the clause contains a NAMED
arbitrator, the parties are BOUND because of consent

presumption reverses the burden of proof

the fact that there is a presumption in itself doesnt mean anything

clauses where you dont have any say about the arbitrator, the other party would not be able to raise
objection after agreeing

there is a potential ground, arbitrator is an employee

NO presumption that arbitrator just by being employee, will be in your favour
the clause named the arbitrator so you are stopped from raising objection, it is late

HRD V GAIL INDIA

on repeat/ multiple appointments

challenged both arbitrator he did not appoint

this tribunal is fine, is parties problem for repeatedly appointing retired judges
tribunal says everything is fine with the appointment, aca can challenge this

must raise doubts that are justifiable to allow removal

can this allow disqualification – that the party has rendered a previous award
the same party keeps appointing the same people

Halliburton v Chubb (UK Supreme Court, 2020)

in the event of a disagreement of the parties, can approach the hc

he appoints arbitrator again
yes, there exists a legal duty on the arbitrator to disclose such kinds of appointment
however, this kind of obligation doesn't really have any teeth – it is not necessary to disclose cant do
anything to him
substantive overlap does exist, but his judgement cant be diluted through his involvement to other
cases

this is a problematic decision

if your arbitrator doesnt make relevant disclosure, could lead to justifiable doubts

here there is apparent bias

there is arbitration – to be seated in London

IBA GUIDELINES ON ARBITRATOR DISCLOSURE

• Challenge procedure
S 13 ACA: ‘(1) Subject to sub-section (4), the parties are free to agree on a procedure for
challenging an arbitrator.
(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an
arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal
or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a
written statement of the reasons for the challenge to the arbitral tribunal.
(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other
party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-
section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an
arbitral award.
(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may
make an application for setting aside such an arbitral award in accordance with section 34.
(6) Where an arbitral award is set aside on an application made under sub-section (5), the Court
may decide as to whether the arbitrator who is challenged is entitled to any fees.’
PARTIES ARE FREE TO AGREE ON WHAT THEY WANT
if they want to challenge the arbitrator, have to do before the tribunal
within 15 days of becoming aware, have to write to tribunal
may recuse, or if opposition agrees to remove him – if nothing happens, tribunal and arbitrator will
decide on the matter
if unsuccessful, they will continue
can approach the court as per sec 34 later to set aside award

SECTION 14
under the act there is more principled system to follow

• Termination of the arbitrator’s mandate

S 14 ACA: ‘(1) The mandate of an arbitrator shall terminate and he shall be substituted by another
arbitrator, if—
(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act
without undue delay; and
(b) he withdraws from his office or the parties agree to the termination of his mandate.
(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section
(1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the
termination of the mandate.
(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a
party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the
validity of any ground referred to in this section or sub-section (3) of section 12.’

there are parallels with IBA guideline system

have iba guidelines for procedural aspects
is soft law

Module 5: Conduct of Arbitral Proceedings

• 3 stages of the arbitration: (i) pre-arbitral; (ii) arbitral; and (iii) post-arbitral.

Pre arbitral – aa sec 5, 16 + tribunal

arbitral stage

have a lot of help from the law

party autonomy – pertains to both procedural and substantial aspect

Procedural equality, neutrality and due process – sec 18, 19

sec 18 – must have equal opportunity to present their case

due process means the tribunal must make sure to hear both sides
if one party is deprived of it, can challenge under sec 34

parties must have full procedural rights and the tribunal must make sure

s 18 Indian Arbitration and Conciliation Act 1996 (hereinafter ‘IAA’): ‘The parties shall be treated
with equality and each party shall be given a full opportunity to present his case.’

arbitral is not bound by cpc, evidence act anything

whatever they agree to binds them
the parties agree to it, otherwise law of the seat – so will be the lex arbitri
when parties go to institutional arbitration with seat in India, they will be the first – fortime limits,
procedure etc
party choice - - then tribunal can choose based on consent of parties

• s 18 Indian Arbitration and Conciliation Act 1996 (hereinafter ‘IAA’): ‘The parties shall be
treated with equality and each party shall be given a full opportunity to present his case.’
• Determination of procedural rules – s 19 IAA: ‘(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.’
• Note as well the ‘fast-track arbitral proceedings’ of s 29B IAA.
Sec 29 b is fast track procedure – no hearings, time limits for tribunal, sole arbitrator – can go for
this if both parties agree
this is six months as per the provision
tribunals usually dont follow despite it being in place

• Preliminary steps
• Preliminary hearing between parties, lawyers and tribunal – determination of procedural &
administrative issues – like time limit etc. When it comes to the submissions
• Normally a ‘Procedural Order’ at the end, delineating the procedural issues discussed during the
preliminary hearing

Written submissions – sec 23, 24

S 23 IAA: ‘(1) Within the period of time agreed upon by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or
remedy sought, and the respondent shall state his defence in respect of these particulars, unless the
parties have otherwise agreed as to the required elements of those statements.

(2) The parties may submit with their statements all documents they consider to be relevant or may
add a reference to the documents or other evidence they will submit.

(2)(A) The respondent, in support of his case, may also submit a counterclaim or plead a set-off,
which shall be adjudicated upon by the arbitral tribunal, if such counterclaim or set-off falls within
the scope of the arbitration agreement.

(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or
defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it
inappropriate to allow the amendment or supplement having regard to the delay in making it.’
S 24(3) IAA: ‘All statements, documents or other information supplied to, or applications made to,
the arbitral tribunal by one party shall be communicated to the other party, and any expert report or
evidentiary document on which the arbitral tribunal may rely in making its decision shall be
communicated to the parties.’
the documents – the claimant starts the proceedings, initiate the proceedings by filing a statement of
claim
whatever issues gave rise to the dispute will be stated

then, the parties will file a statement of defence

counterclaim and set off – if respondent has another cause of action

respondent files a rejoinder

claimant can then send a surejoinder

tribunal will then collect evidence

tribunal sometimes is difficult to bind third parties

court will then attempt to help collect evidence WITHOUT getting into merits, Sec 27 -

S 27(1) IAA: ‘The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply
to the Court for assistance in taking evidence.’

documentary evidence,
witnesses of facts,

SEC 26 IS ON EXPERT WITNESSES

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral
tribunal, and
(b) require a party to give the expert any relevant information or to produce, or to provide access to,
any relevant documents, goods or other property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers
it necessary, the expert shall, after delivery of his written or oral report, participate in an oral
hearing where the parties have the opportunity to put questions to him and to present expert
witnesses in order to testify on the points at issue.
(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available
to that party for examination all documents, goods or other property in the possession of the expert
with which he was provided in order to prepare his report.’
HEARINGS IS SEC 24

oral hearings important, written stage is more important

sec 42 A
CONFIDENTIALITY – of all proceedings except award to the extent that the award should be
enforced
confidentiality is the rule
can the parties deviate – yes

post hearing brief – tribunal works with the lawyers, just to clarify things maybe required
submissions can be made again

functus officio – jurisdiction of tribunal stop where proceedings closed

can challenge in court because tribunal does not exist anymore

standard of proof for arbitrator is justifiable doubts

Module 6 & 7: Arbitral Awards and Recourse

INTERIM RELIEFS

arbitral stage finishes when the tribunal issues the award

there is a time limit to challenge it

may try to dissipate and destroy evidence, become insolvent etc

can apply for interim relief to preserve status quo

why interim relief - CJEU, Opinion of AG Tesauro, The Queen v Secretary of State for Transp.
(1990): “Interim protection has precisely that objective purpose, namely to ensure that the time
needed to establish the existence of the right does not in the end have the effect of irremediably
depriving the right of substance, by eliminating any possibility of exercising it; in brief, the purpose
of interim protection is to achieve that fundamental objective of every legal system, the
effectiveness of judicial protection.”

in the aca – normally we start with lex arbitri, the aca -

two provisions sec 9 and 17
sec 9 interim relief asked by court in furtherance of tribunal and arbitration – tribunal may not be
efficacious or in existence
sec 17 is the default,interim relief issued by tribunal itself

to see if tribunal can grant interim relief -

go to the tribunal – yes can do so

rules allow for interim measures, or go to lex arbitri if silent
if tribunal has jurisdiction need to see what the parties have agreed upon
most jurisdictions have based their law on the uncitral model law
model law it is a model – is soft law – it does not bind anyone
it becomes binding once the country adopts it as national law
the model law in our context is the aca

the model law has an express provision allowing tribunals to issue interim relief – sec 17
most jurisdictions which are inspired by model law, do allow tribunals to issue interim relief

there are some issues – some limitations on the tribunal s powers for provisional relief – traditional
interim relief was seen as very related with state sovereignty -because it is so entrenched, it should
be upon the jurisdiction of domestic courts – this is now not a position

tribunal for instance cannot bind third parties – there are similar limitations that extend to interim
reliefs

it is difficult for a tribunal to enforce judgements, so the arbitral tribunal does not have coercive
mechanisms

• What is the ‘proper’ forum to grant interim measures in commercial arbitration?

• Does the arbitral tribunal have authority to order provisional relief in the first place? Based on:
• Parties’ arbitration agreement & applicable institutional rules (e.g. ICC, LCIA etc.); or
 • Applicable national (procedural) law (lex arbitri) – importance of the UNCITRAL Model Law

• Inherent limitations on arbitral tribunal’s power to order provisional relief

• Arbitral tribunal lacks power to order provisional relief against third parties (privity – BUT see
exceptions to privity)
• Arbitral tribunal lacks power to directly enforce provisional relief (BUT note the tool of drawing
‘adverse inferences’ on the part of the tribunal against the recalcitrant party)

it is difficult for tribunals to enforce judgements – no coercive mechanism

enforcement happens at the domestic courts where there are assets, only courts have coercive
powers

tribunal can draw adverse inference – while adjudicating the merits of the case and the main claim,
the tribunal will assess that they are not a good party

sec 17 is an adoptaiton of article 17 of the uncitral model law – as per sec 17 it relates to the arbitral
tribunal the interim order has the same effect as if it were issued by a domestic court

• S 17 ACA – Interim measures ordered by arbitral tribunal: ‘1) A party may, during the arbitral
proceedings, apply to the arbitral tribunal—
i. for the appointment of a guardian for a minor or person of unsound mind for the purposes of
arbitral proceedings; or
ii. for an interim measure of protection in respect of any of the following matters, namely:—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the
arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of
the dispute in arbitration, or as to which any question may arise therein and authorising for any of
the aforesaid purposes any person to enter upon any land or building in the possession of any party,
or authorising any samples to be taken, or any observation to be made, or experiment to be tried,
which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the arbitral tribunal to be just and
convenient, and the arbitral tribunal shall have the same power for making orders, as the court has
for the purpose of, and in relation to, any proceedings before it.
2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral
tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be
enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were
an order of the Court.’

• Discretionary relief for the tribunal, “mandatory” for the parties => no contractual deviation
allowed, cannot waive interim relief
• Conditions a petitioner has to establish to be eligible for interim relief:1
• A prima facie case in its favour;
• The balance of convenience being in favour of grant of the interim measure; and
• The irreparable injury would be caused to the petitioner if the relief requested is not granted.

whether the tribunal is going to give interim relief is a DISCRETIONARY RELIEF – even if you
fulfil the conditions the tribunal is not obliged to provide interim reliefs

sec 8 – referral by the court to the tribunal

court will see if aa is valid
the court will then do proportionality exercise – whether balance of convenience is in favour of the
interim measure – will lots of harm be caused
party should not be disproportionately prejudiced

sec 17 used to read that – unless the parties agree – now no more – MANDATORY, cannot
contractually deviate from sec 17 – if there is a need for an interim measure cannot deviate

if rules are silent on interim measure, then go to lex arbitri

TRIBUNAL NOT THE BEST FORUM FOR RELIEF – IF NOT CONSTITUTED, THIRD
PARTIES

Sec 9
(e) such other interim measure of protection as may appear to the court to be just and convenient,
can ask for anything

(1), the arbitral proceedings shall be commenced within a period of ninety days from the date of
such order or within such further time as the Court may determine.

3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under
sub-section (1), unless the Court finds that circumstances exist which may not render the remedy
provided under section 17 efficacious.’

Sec 9 -
is there a conflict with sec 17 - Avantha Holdings Limited v Vistra ITCL India Limited [Delhi HC,
2020] and the ‘emergent necessity’ criterion – goes to credit institutions and takes loans
court hold should not usurp the jurisdiction of the tribunal
any kind of relief is only when Sec 17 cannot be used
the existence of aa shows the parties want to do arbitration
if sec 17 can apply, they should go to tribunal
can grant interim relief when tribunal cant

sec 9 can apply when – you want to bind third parties like a bank
the tribunal does not have the power to do so, but the domestic court can bind everyone

Value Advisory Services v ZTE Corporation [Delhi HC, 2009] – as per sec 9 need not have any
prior relationship
can bind third parties
sec 9 can bring third parties

TIMING – DIFFERENCE WITH SEC 17 – MUST BE WITHIN 90 DAYS

yes, can go to court within 90 days proceedings must commence
sec 21 – they commence once they receive statement of claims

if the rules silent go to lex arbitri

must go to tribunal if it can grant relief
court to bind third parties

sec 34, challenge, 36 enforcement