Category Archives: Arbitration

In one of the critical steps towards making arbitration an expeditious alternative dispute resolution process, it was in 2015 that the timelines for winding up arbitration proceedings, within a stipulated time period of 12 months from the date arbitral tribunal enters upon reference, was first introduced in Indian arbitration regime vide new Section 29 A of Arbitration and Conciliation Act, 1996 (“Arbitration Act”). While the timelines were made applicable to both domestic and international arbitrations in India in 2015, its applicability was limited to domestic arbitrations alone vide an Amendment Act in 2019. The issue, whether the 2019 amendment would apply to arbitrations pending when the Amendment Act 2019 came into effect, or in other words whether the amendment is retrospective in nature, arose in several disputes and since been addressed by various High Courts including Hon’ble Delhi High Court.

One such dispute has been recently decided by the Hon’ble Supreme Court in TATA Sons Pvt Ltd (Formerly TATA Sons Ltd) v. Siva Industries and Holdings Ltd & Ors [Miscellaneous Application No 2680 of 2019 in Arbitration Case (Civil) No 38 of 2017 decided on 05.01.2023]. In this matter, a sole arbitrator was appointed by the Supreme Court under section 11(6) of the Arbitration Act since one of the respondents was a foreign party and thus, it was an international commercial arbitration in terms of Section 2(1)(f) of the Arbitration Act. The arbitrator entered upon the reference on 14 February 2018. On 21 March 2018, a preliminary case management meeting was held between the parties and the arbitrator at which the parties agreed to a six months extension (expiring on 14 August 2019), if the arbitral proceedings could not be completed within a period of twelve months commencing from the date the arbitral tribunal entered reference.

During the pendency of the arbitral proceedings, the Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016 was initiated against the first respondent and consequently proceedings came to a suspended halt on account of moratorium. During the period of moratorium, the original period of one year and the extension of six months expired. Tata Sons, therefore, moved an application for further period of six months after the moratorium ceases to exist in the light of section 29A of the Arbitration Act as amended in 2019. CIRP came to an end on 3 June 2022. The application, therefore, sought that arbitration proceedings may be allowed to continue without any need for an extension of the term of the Ld. Sole Arbitrator or alternatively, if Hon’ble Court is of the opinion that the amended Section 29A (following the 2019 Amendment) is inapplicable to the arbitration proceedings, then allow the extension of the time limit within which arbitrator is to render an award in the arbitration proceedings between the parties by a period of 1 year.

The Court went into the analysis of Section 29A of the Arbitration Act and its evolution. When the section was introduced in 2015, it stipulated that the award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. Post amendment in 2019 (w.e.f. 30.08.2019), the new section 29A(1) stipulated that “The award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23: Provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavor may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23.”

Essentially the argument of the applicant was that as a result of the amendment of Section 29A, the period of 12 months prescribed for making an award from the date of completion of the pleadings has ceased to apply to an international commercial arbitration and the amendment being of a procedural nature, the amended provision would apply to the arbitral proceedings in the present case. The Court appreciated the mandatory nature of the provisions under Section 29A(1) prior to the amendment and their application to all arbitrations conducted under the Act, domestic or international commercial by underlining the importance of expression “shall”. The Court observed that after the amendment, the expression “in matters other than an international commercial arbitration” makes it abundantly clear that the timeline of twelve months which is stipulated in the substantive part of Section 29A(1), as amended, does not apply to international commercial arbitrations. The proviso further reaffirms that the award in the matter of an international commercial arbitration “may be made as expeditiously as possible” and that an “endeavour may be made to dispose of the matter within a period of 12 months” from the date of the completion of pleadings. Therefore while the mandate to deliver the arbitral award within the period of 12 months is mandatory for domestic arbitration, it is directory in case of international commercial arbitration.

The applicant had also argued that even if the court is of the opinion that section 29A excludes the mandate in case of international commercial arbitration, sub-section (3) and (4) were not excluded and the parties may mutually agree to extend the period by six months. In order to decide the issue, the Court went into the reasons why the report dated 30 July 2017 of the Committee chaired by Justice B N Srikrishna carries specific recommendation to the effect that international commercial arbitrations may be left outside the purview of the timelines provided in Section 29A. The Committee indicated that generally the  international arbitration institutions, with their own machinery for case management, have in place the timelines for conducting international arbitrations and that they did not require the monitoring of timelines by the intervention of the court. The Committee further recorded that in other jurisdictions, timelines for arbitral proceedings are usually agreed by the parties themselves in accordance with the nature and complexity of the dispute.

On aspect of applicability of the 2019 amendments to Section 29A to the present case, the Court referred to section 26 of the 2015 Amendment Act which clarified that “[n]othing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.”

The Court observed that no provision equivalent to section 26 of the 2015 Amendment Act with regard to the prospective application of the amendments was chalked under the Amendment Act of 2019. Further, the removal of the mandatory time limit for making an arbitral award in the case of an international commercial arbitration does not confer any rights or liabilities on any party and is remedial in nature (unlike original Section 29A which despite being procedural in nature created new obligations in respect of a proceeding which had already commenced since it laid down a strict timeline for rendering an arbitral award for the first time in the framework of the Arbitration Act [Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd[1]]). Accordingly, the Court held that Section 29A should be applicable to all pending arbitral proceedings as on the effective date i.e., 30 August 2019. The Court agreed with the decision of Hon’ble Delhi High Court in the matter of ONGC Petro Additions Ltd. vs Ferns Construction Co. Inc.[OMP (Misc) (Comm) 256/2019] wherein it was held that there is no strict time line prescribed to the proceedings which are in nature of international commercial arbitration as defined under the Act, seated in India. The Court, accordingly, held that the sole arbitrator in the present case would be acting within his domain and jurisdiction to decide upon any further extension of time beyond what is originally stipulated in the case management meeting.

It is therefore, made clear beyond any doubt that the timelines stipulated under Section 29A of the Arbitration Act for concluding arbitration proceedings are not only inapplicable in case of international commercial arbitrations, the amendment in 2019 being procedural in nature is retrospective and shall be applicable to all the proceedings pending at the time the amendment came into effect.

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[1] (2018) 6 SCC 287

It has been well established by catena of judgments that proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act“) are summary in nature and therefore, the scope of enquiry in any proceedings under Section 34 of the Act has been restricted to consider the grounds exhaustively mentioned in Section 34(2) or Section 13(5) or Section 16(6) in order to determine whether to set aside an award that has been challenged under section 34 of the Arbitration Act. The thumb rule is that an application for setting aside an arbitral award would not ordinarily require anything beyond the record that was before the Arbitral Tribunal.

In the matter of Fiza Developers and Inter-Trade Private Limited v. AMCI (India) Private Limited and Anr[1] the Court had held that framing of issues is not required as the proceedings are summary in nature. However, at the same time the Court indicated that according to section 34(2) of the Arbitration Act, an opportunity to the aggrieved party has to be afforded to prove existence of any of the grounds and allowed the applicant in the case to file affidavits of the applicant’s witnesses as “proof” and granted the respondent-defendant an opportunity to place their evidence by affidavit. The Court further went on to add that “Where the case so warrants, the court permits cross-examination of the persons swearing to the affidavit”.  

In the matter of Emkay Global Financial Services Limited v. Girdhar Sondhi[2] it was clarified thatsince after 2015 amendments to the Arbitration Act, the proceedings under section 34 have become time bound, the thumb rule of summary proceeding shall be followed and only if there were matters not contained in the record before the arbitrator, and would be relevant for determining issues arising under Section 34(2)(a), only then they may be brought to the notice of the Court by way of affidavits filed by both parties. The Court further added that cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary.

Since, clearly an exception has been carved out to the thumb rule, howsoever narrow, the question is how and when this exception be applied by the courts. When is it ‘absolutely necessary’ to cross examine? In a subsequent matter[3], the Apex Court further clarified the position by holding that if there is any exceptional circumstance wherein parties are required to adduce evidence in the form of an affidavit, the party must indicate on what point the party intends to adduce evidence along with disclosing specific documents or evidence that would be required to be produced. There must be specific averments in the affidavit as to the necessity and relevance of the additional evidence sought to be adduced which would be beyond the record that was before the arbitrator.

Recently, on a strong exceptional basis, the Apex Court in the matter of M/s Alpine Housing Development Corporation Pvt. Ltd. v. Ashok S. Dhariwal and Others[4] allowed a party to file affidavits/additional evidence in the proceedings under section 34 of the Arbitration Act and further permitted second party to cross-examine and/or produce contrary evidence. In this case, the award passed by the arbitrator was ex-parte. The respondent assailed the award under section 34 of the Arbitration Act along with the application to adduce additional evidence. The application was declined by the Court while relying on Section 34(2)(a) of the Act, as amended in the year 2019, by which expression “furnish proof” in section 34(2)(a) came to be substituted with the expression “establish on the basis of record of arbitral tribunal”. The Court explained in the following words: “the said amendment intended to limit the scope of judicial review under Section 34 of the Act only in exceptional circumstances enumerated under Section 34(2)(a) of the Act on the basis of the record available and even if the grounds urged relate to section 34(2)(b) of the Act, the applicants cannot have a right to produce additional evidence”. The order of the Court was challenged by way of writ petition before the High Court which allowed the petition and permitted the respondent to adduce the evidence while relying on judgment in Fiza Developers.

The said judgment by the Hon’ble High Court was challenged before the Hon’ble Supreme Court. The Court foremost observed that arbitration proceedings commenced and even the award was declared by the arbitral tribunal in the year 1998, i.e., prior to section 34(2)(a) came to be amended and therefore, pre-amendment of section 34(2)(a) shall be applicable according to which an arbitral award could be set aside by the Court if the party making an application “furnishes proof” and the grounds set out in section 34(2)(a) and section 34(2)(b) are satisfied.

The Court, therefore, applied the ratio in the judgments in Fiza Developers, Emkay Global and Canara Nidhi, and held that “if there are matters not containing such records and the relevant determination to the issues arising under section 34(2)(a), they may be brought to the notice of the Court by way of affidavits filed by both the parties”. The Court observed that whereas the arbitral tribunal in the matter had passed the decree for specific performance of the contract/agreement subject to the amalgamation of the plots, the respondents, by way of application, had sought to place on record the communication from the appropriate authority by which the application for amalgamation of the plots was rejected. The case of the respondents was thus, in view of the refusal of the permission by the appropriate authority to amalgamate the plots, the case fell under section 34(2)(b), namely, that the dispute was not capable of settlement under the law for the time being in force and that the arbitral award was in conflict with the Public Policy of India, namely, against the relevant land laws. Since the event of refusal to amalgamate the plots was subsequent to the passing of the award, the same was not forming part of the record of the arbitral tribunal. Further, the award of the arbitral tribunal being an exparte award, no evidence was before the arbitral tribunal on behalf of the respondents.

According to the Court, therefore, the affidavit thus disclosed specific document and the evidence required to be produced, thus establishing a strong exceptional case to permit the respondents to file affidavits/adduce additional evidence. However, despite the Courts observation that “the cross-examination of the persons swearing in to the affidavits should not be allowed unless absolutely necessary as the truth will emerge on the reading of the affidavits filed by both the parties,” no separate reasoning was provided by the Court for allowing cross-examination in the matter. The Court plainly added that, “at the same time, the appellant also can be permitted to cross-examine and/or produce contrary evidence.”

It is pertinent to note that as it appears, the permission to adduce additional evidence has been granted because the pre-amendment position of law has been applied. This was because not only were the proceedings commenced before the amendments, the award was also delivered prior to the amendments. After the amendment in 2019, the section does away with the requirement of furnishing proof under Section 34(2)(a) of the Arbitration Act. The phrase “party making the application furnishes proof” has been substituted with the words “establishes on the basis of the Arbitral Tribunal’s record that.” Further, the proceedings under section 34 before the Court has been made time bound.

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[1] (2009 ) 17 SCC 796

[2] (2018) 9 SCC 49

[3] The judgment in Canara Nidhi Limited vs. M. Shashikala Civil Appeal Nos. 7544-7545 of 2019 further affirms the position.

[4] [CIVIL APPEAL NO. 73 OF 2023 decided on  19.01.2023]

In a recent case of M/s. Emaar India Ltd. v. Tarun Aggarwal Projects LLP & Anr [CIVIL APPEAL NO.  6774 OF 2022], once again question that emerged  for the consideration of Hon’ble Supreme Court was whether the High Court was justified  in allowing  the   application   under  Section   11(5)   &  (6)  of the Arbitration and Conciliation Act, 1996 for appointing the arbitrators without considering the aspect of arbitrability of dispute as per the relevant clauses under the Agreement.  As per the Agreement executed between the parties, if any conflict or difference arose between the parties or in case either party refuses or neglects to perform its part of the obligations under Agreement,  then such issues were not arbitrable but the other party had right to get the agreement specifically enforced through the appropriate court of law. Therefore, the question whether the dispute is arbitrable or not, was to be considered by the Court or by the arbitral tribunal in the light of the very terms of the said agreement.

The Court while analysing the issue went into underling the relevance of contract and observed that the reliefs to the parties shall not travel beyond the terms of the contract executed between the parties. It is because a contract is a transaction between two parties and has been entered into with open eyes and by understanding the nature of contract and that such contract has to   be interpreted giving literal meanings unless there is some ambiguity therein. The Court further referred to the judgment in Harsha  Construction  Vs.  Union  of  India and Ors.  (2014) 9 SCC 246 and observed that a contract with regard to arbitration has to be an expressed one. It must be in writing as per the legislation. In Harsha  Construction case it was clearly held that it was not open to the Arbitrator to arbitrate upon the disputes which had   been expressly  “excepted” and thus non-arbitrable. An award, therefore, so far as it related to disputes   regarding   non¬arbitrable   disputes  was bad in law  and liable to be quashed.

The Court further referred to the judgment in Vidya Drolia and Ors. Vs. Durga Trading Corporation (2021) 2 SCC 1 to elaborate on the aspect of arbitrability and its determination at the stage of application under section 11(6) of the Arbitration and Conciliation Act, 1996. The Court observed that the issue of non-arbitrability of a dispute is basic for arbitration as it relates to the very jurisdiction of the Arbitral Tribunal. As per Vidya Drolia and a catena of judgments decided earlier, the question of arbitrability, specially relating   to   the   inquiry whether   the   dispute   was   governed   by   the   arbitration clause, can be examined by the Courts at the reference stage itself. Further, Court can examine the validity   of   an arbitration   agreement, the authority which is covered by the expression, “existence of arbitration agreement” in Section 11 of the Arbitration   Act. Court shall not refer the matter for arbitration and as a demurrer interfere under section 8 and 11 when  it is manifestly and ex facie certain   that   the   arbitration   agreement   is   non-¬existent, invalid or the disputes are non-arbitrable and also when the matter is demonstrably “non-arbitrable   and   to   cut   off   the deadwood.”  The judicial scrutiny may however vary with the nature and   facet   of   non-arbitrability. If, however, the contentions relating to non–arbitrability are plainly arguable, the court by default shall refer the matter for arbitration. Applying the law laid down by this Court in the aforesaid decisions, the Court in the present matter held that the dispute is not arbitrable since the claims have been excepted by the clear term in the Agreement.

Hon’ble Supreme Court in a recent judgment[1] held that when a discretion is vested in the Arbitral Tribunal under Section 31(7) of the Arbitration and Conciliation Act, 1996 to determine the rate of interest, whether the interest is payable on whole or any part of the money  and whether it is to be awarded to the whole or any part of the  period stipulated, the Tribunal has the duty to apply its mind and give reasons as to how it deems a certain interest rate as reasonable and to decide why the interest is payable on whole or any part of the money and also as to why it is to be awarded to the whole or any part of the  period between the date on which the cause of action arose and the date on which the award is made. While exercising its jurisdiction under Article 142 of the Constitution of India, The Hon’ble Court reduced the rate of interest from 18% to 9% and further reduced the period by 20 odd years on account of the lapse of the Claimant-Respondent in taking timely action.

The Respondent was awarded the contract for construction of missing link of 3 kms stretch on NH­6 on 16^th December, 1971 to be completed within one year. The contract amount was Rs.4,59,330/­.   However the work could be completed by 30^th August 1977. The Respondent was already paid an amount of Rs.3,36,465/­ by then. The Respondent issued a notice to the Appellant regarding his claim only on 25^th July 1989 followed by the Respondent filing his claim of Rs.1,45,28,198/­ and interest @ 19.5% from 1^st April 1976 to 15^th March 2002.  The learned   Arbitrator,   vide   award   dated   24^th August   2004, awarded a sum of Rs.9,20,650/­ and an interest  pendent lite with effect from 1^st April 1976 to the date of the award at the rate of 18% per annum which came to Rs. 46,90,000/­. The learned Arbitrator further directed the future interest to be paid at the rate of 18% per annum on the total of the aforesaid two amounts till actual payment.

The Award was challenged on various grounds including on the ground that the interest   amount   of   Rs.46,90,000/­   is almost   five   times   that   of   the   main   award   amount   of Rs.9,20,650/­. The Appellant relied on the judgments in Rajendra   Construction   Co.   v.   Maharashtra Housing   &   Area   Development   Authority   and   Others [(2005) 6 SCC 678], Krishna   Bhagya   Jala   Nigam   Ltd.   v.   G.   Harischandra Reddy and Another [(2007) 2 SCC 720] and Mcdermott International Inc. v. Burn   Standard   Co.   Ltd.   and   Others [(2006) 11 SCC 181].

The Court examined the issue in the light of the discretion given to an Arbitral Tribunal under Section 31(7) of the Arbitration and Conciliation Act, 1996 (“1996 Act”) to determine the rate of interest, whether interest would be applicable on the whole or any part of the money awarded, and whether it shall be applicable for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. The Court arrived at the decision that such discretion when vested in the Arbitral Tribunal, it has a duty to exercise the discretion while applying its mind to the facts and circumstances of the case and give reasons for arriving at a certain interest rate, the sum of which it shall be applicable, and period for which it shall apply.

The Court observed that the Arbitral Tribunal in the matter did not do any such exercise of reasoning and further failed to exclude the period of more than 20 years during which it was the Respondent-Claimant who did not raise its claim and further did not take any action after decree was passed in 1990 and then after passing of 1996 Act until 2001 when the Respondent-Claimant finally filed an application under section 11 of the 1996 Act. The Court in this regard held that a party cannot be permitted to derive benefits from its own lapses. With regard to the determination of the rate of interest, the Court made reference to various judgments including the observation made by the Court in Mcdermott International Inc. wherein it was held that given the long lapse of time, it will be in furtherance of justice to reduce the rate of interest while exercising the jurisdiction under Article 142 of the Constitution of India. The Court, accordingly found that the present case was also a fit case wherein this Court needed to exercise its powers under Article 142 of the Constitution of India to reduce the rate of interest. While taking into consideration the conduct of the Respondent in delaying the proceedings at every stage which led to a long pendency of the dispute, the Court concluded that, though it will not be in the interest of justice to interfere with the principal award, it would be a fit case wherein the interest at all the three stages, that is pre­reference period, pendente lite and post­award period, requires to be reduced. The Court, therefore, was pleased to reduce the rate of interest to 9% from 18%

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[1] Executive Engineer (R and B) and Ors. v. Gokul Chandra Kanungo (Dead) Thr. His Lrs. [CIVIL APPEAL NO. 8990 OF 2017 decide on 30.09.2022]

Recently, in the matter of Indian Oil Corporation Limited v. NCC Limited [CIVIL APPEAL NO. 341 OF 2022 decided on 20.07.2022] once again the Hon’ble Supreme Court confirmed that the judicial inquiry under Section 11(6A) of the Arbitration and Conciliation Act, 1996 is not confined   only   to ascertain   as to   whether   or not   a   binding arbitration agreement   exists and the Court cannot mechanically refer the dispute to arbitration. The Court needs to apply its mind and decide whether the arbitration agreement is valid and whether the dispute is covered by the arbitration clause.

As per the ratio in the case, “However, at the same time, we do not agree with the conclusion arrived at by the High Court that after the insertion of Sub-Section (6¬A) in Section 11 of the Arbitration Act, scope of inquiry by the   Court   in   Section   11   petition   is   confined   only   to ascertain   as  to   whether   or  not   a   binding  arbitration agreement   exists  qua  the   parties   before   it,   which   is relatable to the disputes at hand. We are of the opinion that though the Arbitral Tribunal may have jurisdiction and   authority   to   decide   the   disputes   including   the question of jurisdiction and non-arbitrability, the same can also be considered by the Court at the stage of deciding Section 11 application if the facts are very clear and glaring and in view of the specific clauses in the agreement   binding   between   the   parties,   whether   the dispute   is   non-arbitrable   and/or   it   falls   within   the excepted clause. Even at the stage of deciding Section 11 application, the Court may prima facie consider even the aspect with regard to ‘accord and satisfaction’ of the claims.”

The Court has essentially maintained the position of law as laid down in DLF Home Developers Limited v. Rajapura Homes Private Limited & Anr and DLF Home Developers Limited v. Begur OMR Homes Private Limited & Anr [both decided on September 22, 2021] wherein it had held that the Courts are “not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen Arbitrator.” The Court had ruled that the Courts are “obliged to apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act.” The position of law is an extension of what fundamentally the Apex Court ruled in Vidya Drolia and Others v. Durga Trading Corporation (2021) 2 SCC 1 and if we go backwards, in  Duro Felguera, S.A. v. Gangavaram Port Limited [(2017) 9 SCC 729]. The three judge bench in Vidya Drolia explained theconcept of limited prima facie review. The Court held that the scope of judicial review and jurisdiction under Sections 8 and 11 of the Act is extremely limited and is to be exercised in rare occasions only and went on to clarify that although a prima facie examination does not mean full review, the purpose of the scrutiny is to weed out manifestly invalid arbitration agreements and non-arbitrable disputes. Further, it may be that certain cases require a still deeper consideration during prima facie examination but this should be done with measured restraint. The Supreme Court, however, cautioned that the scrutiny made by the Courts should be done only to effectuate the arbitration process.