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Jurisdiction - Notes
Arbitration law
Amity University
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JURISDICTION OF ARBITRAL TRIBUNALS
and
INTERIM MEASURES ORDERED BY ARBITRAL TRIBUNAL Lecture by- Dr. Saltanat Sherwani
JURISDICTION
Section 16. Competence of arbitral tribunal to rule on its jurisdiction.— (1) The arbitral tribunal may rule on its own jurisdiction, including riding 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.
Section 16 is analogous to Section 13 of the Arbitration Act, 1940.
Section 16(1) – This sub-section empowers the arbitral tribunal to make rules on its own jurisdiction, including any objections in respect to the existence or validity of the arbitration agreement, however over such matters ultimate control is exercised by the courts as provided under Section 34 of the Act, 1996. Sub-section (1) contains principle of ‘autonomy’ and distinguishes arbitration clause from other clauses in the agreement. Thus, an arbitration clause is independent of the other terms of contract and the arbitral tribunal cannot invalidate an arbitration clause while invalidating the other clauses of an agreement.
Section 16(1) contains expression "The Arbitral Tribunal may rule". That means it is the discretionary power of an arbitral tribunal which it may exercise on its own motion or at the request of a party. An arbitrator cannot be compelled to exercise those powers,—,
Section 16(2) provides plea to raise objections to jurisdiction. The parties have vested rights to raise objections to jurisdiction but ‘not later than the submission of the statement of defence’. A party shall not be deprived of such right to raise objections to jurisdiction merely on the ground that he has appointed or participated in the appointment of an arbitrator. Thus, an aggrieved party has an opportunity to raise a jurisdictional plea before an arbitral tribunal even after appointment of an arbitrator.
Section 16(3) states that as soon as an arbitral tribunal goes beyond the scope of his authority objections are to be raised while the arbitral proceedings are in progress
(c) the detention, preservation or inspection of any
property or thing which is the subjectmatter 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.]
Section 17 of the Act gives the arbitral tribunal the power to pass an order for interim measures if a party applies to the tribunal for such interim relief. A party may apply for interim relief under Section 17 of the Act only after the arbitral tribunal has been constituted till the arbitral award is passed.
Any party to the arbitration agreement may file an application to the arbitral tribunal under Section 17 during the course of the arbitration, i. after the arbitral tribunal has been constituted and up to the time the arbitral award has been made. Section 17 provides power to arbitrators to take such interim measures which are necessary and also reasonable at the request of a party. An arbitral tribunal cannot order interim measures as such on its own motion.
INTERIM RELIEF SOUGHT UNDER SECTION 17
Application for interim relief may include the following:
- Appointment of guardian for a minor or person of unsound mind;
- Preservation, interim custody or sale of goods (if the goods are of perishable nature) for any goods related to the arbitration agreement;
- Securing the amount of claims;
- Allowing the detention, preservation or inspection of any property or thing, authorizing any person to enter upon any land or building, authorizing any samples to be taken or observations to be made or experiments to be tried in order to expedite the process and obtain accurate & complete information or evidence;
- Allowing interim injunction or appointment of receiver;
- Any other reliefs which the court considers proper taking into account the facts and circumstances of the case.
Jurisdiction - Notes
Course: Arbitration law
University: Amity University
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