According to appoint an arbitrator. Third arbitrator shall
According to Section 2
(1) (d) of the Arbitration & Conciliation Act, 1996 provides “Arbitral
Tribunal” means a sole arbitrator or panel of arbitrators. Arbitrators shall be
appointed by the parties as per accordance with Section 11 of Arbitration &
Conciliation Act, 1996. On other hand, party can appoint one arbitrator and
other party shall also authorize to appoint an arbitrator. Third arbitrator
shall be appointed by both parties with their mutual consent.
an arbitrator: – There was silence on the subject of qualification of an
arbitrator under Old Arbitration Act, 1940. But this new Act gave guidelines
for the appointment and qualification of an arbitrator. That person should be
appointed as an arbitrator who has special knowledge about the Arbitration. On
other hand, that kind of person can also be appointed as an arbitrator who have
expert in technical fields. Technical fields like such as trade, technology,
commerce, industries etc. so in this way that kind of disputes shall only be
adjudicated by the expert arbitrators. The appointment of an arbitrator can be
challenged on the ground of non possessing qualification1.
There was no provision
relating to jurisdiction of an arbitrator in earlier Arbitration Act, 1940. But
new Arbitration & Conciliation Act, 1996 provides jurisdiction of arbitrator.
Arbitrator can resolve
the dispute within its jurisdiction. He cannot make any other decision in
dispute beyond its jurisdiction. It can focus upon arbitration agreement
between the parties2.
In some cases, Apex Court held that jurisdiction includes power to decide
dispute within its own jurisdiction. Arbitrator is bound to rule under its
boundary. It cannot take decisions out of his jurisdiction3.
is not a Court: – Arbitral Tribunal is a body to make
an adjudication of disputes. It can resolve the matters arose between the
parties. But they cannot decide matters in speedy as well as expeditiously
manner. It discharges functions of quasi – judicial nature on principle of
natural justice and fair play. But it shall not be considered as a Court of
law. It was held in Engineering Mazdoor
Sabha vs. Hind Cycles Ltd.4
in technical sense.
Arbitration & Conciliation Act, 1996 provides the definition of word
“Court” means under Domestic Arbitration, Principal Civil Court who have jurisdiction
to decide the subject matter of dispute. High Courts can also be included for
resolution of disputes arises between the parties. But it does not include
civil court of inferior grade to such Principal Civil Court, or any other
Court. On other hand, in Case of International Commercial Arbitration, High
Court is entitled to take subject –matter of disputes between parties. High
Court has its own ordinary Original Civil Jurisdiction to deal with cases of
disputes. It can also deal with cases such as appeals from decrees of Courts
subordinate to High Courts.5
Lal vs. Vinesh Anand 6in
this case Supreme Court declared that Arbitrator is not included in the
definition of Court for Section 195 of Code of Criminal Procedure. So section
340 of Code of Criminal Procedure cannot be dealt with it.
Engineer, Road Development vs. Atlanta Limited
this case Court observed that court includes only Principal Civil Court in
district level who has its own ordinary original jurisdiction. It can also involve
High Courts but it cannot include courts inferior than to Principal Civil
Court. If district judge assenting for matter then it would always be exclusion
of High Courts from adjudication upon the matters.
Conciliation Act, 1996 provides when a person represents himself on the behalf
of deceased person. It also includes any person who has relation with the
property of deceased person, such a person acts in representative character.
The estate devolves on that person on the death of party so doing8.
No judicial authorities
shall interfere in the matters of Arbitration process. This provision clearly
indicates about the non intervention by the courts in arbitration clause. Such
matters are covered under part I of Arbitration & Conciliation Act, 1996
from section 1 to 43. But in certain cases, judicial courts can intervene in
the matters of arbitration like under Sections 8, 9, 11, 14, 27, 34, 36 and 37
of this Act9.
measures by Court
A party may before or
during arbitral proceedings or at any time after the making of the arbitral
award but before it is enforced in accordance with section 36 apply to a court10:-
1. Appointment of a guardian for a minor or
unsound mind person.
2. When the parties may feel the need for safe
guarding interim custody, preservation, protection, sale, or disposal of the
whole or part of subject matter of dispute.
3. For the inspection of subject matter or
samples is to be taken to the court under second schedule to the old Indian
arbitration Act, 1940 the new arbitration and Conciliation Act, 1996 provide
interim measures to the arbitrator under section 9 or section 17 enables to the
court. Arbitrator has empowered to make an interim arbitral award on any matter
with respect to which the arbitrator may make a final award.
injunction or the appointment of a receiver11.
court shall have the same power for making orders similar to the arbitration
the commencement of arbitral proceeding a court has a power to order and
interim measure or protection, the arbitral proceeding shall be commenced
within a period of 90 days from the date of such order12.
arbitral tribunal has been constituted, court shall not entertain an
application except the condition based upon circumstances.
Adhunik Steels ltd. Vs. Orissa manganese and
minerals (P.) ltd13. It is well known
principle applicable to exercise of general power to grant interim reliefs. It
also included specific injunctive relief under order 39 of the Code of civil
procedure, 1908 and the Specific Relief Act, 1963 would be applicable during
the exercise of power under
Section 12 of Arbitration & Conciliation Act, 1996
Section 16 (1) of Arbitration & Conciliation Act, 1996
3 Union of India vs. Kishori Lal ,
AIR 1959 SC 1360
4 AIR 1963 SC 874
5 Section 2 (1) (e) of Arbitration
& Conciliation Act, 1996, also substituted by Act no. 3 of 2016.
6 AIR 2001 SC 1820
7 AIR 2014 SC 1093
8 Section 2 (1) (g) of Arbitration & Conciliation Act,
9 Section 5 of Arbitration & Conciliation Act, 1996
10 Inserted by Act 3 of 2016.
11 Section 9 of arbitration and
conciliation Act, 1996
12 Inserted by Act 3 of 2016.
AIR 2007 SC 2563