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Jurisdiction of the Arbitrator
Jurisdiction of the arbitrator:
This Act bestows that the arbitral tribunal may rule on its own jurisdiction, as well as any objections with respect to the persistence or legitimacy of the arbitration agreement. The arbitration agreement shall be deemed to be autonomous of the contract containing the arbitration clause, and invalidity of the contract shall not cause to be the arbitration agreement void. That's why, the arbitrators shall have jurisdiction even if the contract in which the arbitration agreement is contained is perverted by deception and/or any other legal frailty. Additional, any opposition as to jurisdiction of the arbitrators should be raised by as party at the initial occurrence, i.e., whichever aforementioned to or beside with the filing of the statement of defense. If the appeal of jurisdiction is discarded, the arbitrators can continue with the arbitration and make the arbitral award. Any party distressed by such an award may be appropriate for having it set aside under Section 34 of the Act. Therefore, the proposal is that, in the first occurrence, the objections are to be taken up by the arbitral tribunal and in the event of an undesirable order, it is open to the distressed party to confront the award.
The Court in SBP & Co case, inter alia, accomplished as follows:
- The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an executive power. It is a judicial power.
- The power under Section 11(6) of the Act, in its whole, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to an additional Judge of the Supreme Court.
- In case of alias of a Judge of the High Court or of the Supreme Court, the authority that is exercised by the nominated Judge would be that of the Chief Justice as conferred by the law.
- The Chief Justice or the nominated Judge will have the right to decide the preface aspects as indicated in the judgment. These will be, his own jurisdiction to amuse the request, the continuation of a valid arbitration agreement, the continuation or otherwise of a live claim, the existence of the circumstance for the exercise of his power and on the credentials of the arbitrator or arbitrators. The Chief Justice or the nominated Judge would be permitted to seek the estimation of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need emerges but the order engaging the arbitrator could only be that of the Chief Justice or the nominated Judge.
- The District Judge does not have the power under Section 11(6) of the Act to make prior arrangement of an arbitrator.
- The High Court cannot hinder with the orders passed by the arbitrator or the Arbitral Tribunal during the itinerary of the arbitration proceedings and the parties could move toward the Court merely in requisites of Section 37 of the Act (appealable orders) or in terms of Section 34 of the Act (setting aside or arbitral award).
- As it is a judicial order, an appeal will lie beside the order passed by the Chief Justice of the High Court or by the nominated Judge of that Court merely under Article 136 of the Constitution to the Apex Court.
- No appeal shall lie beside an order of the Chief Justice of India or a Judge of the Supreme Court nominated by him while compelling an application under Section 11(6) of the Act.
- Where an Arbitral Tribunal has been constituted by the parties without having alternative to Section 11(6) of the Act, the Arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of this act.
- SBP & Co case
- Section 11(6)
- Section 34
