By Bhawna Shah ~ Law College Dehradun, Faculty of Uttaranchal University

Arbitration agreement and gavel on a desk.

” In this article, we will see about how the jurisdiction of courts is important in every step of law and justice, despite the fact, that the court must support Arbitration to shift their burdens, but still the Reasonable Involvement of courts is required, whenever we talk about the law and the justice” and whether this Intervention by the courts in Arbitration Matters Justified,”

 “Arbitration may be a regard to the selections of one or more additional persons, either with or while not associated in Nursing umpire of some matter or matters in a distinction between the parties[1]”. “Court Means that the principal civil court of original jurisdiction during a district, and includes the tribunal in the exercise of its original civil jurisdiction to come to a decision the queries forming the topic matter of the Arbitration if identical had been the topic Matter of a suit, however, doesn’t Include any civil court of a grade inferior to such principal civil court, or any court of tiny cases”. [2]

Jurisdiction-

The term jurisdiction isn’t loosely outlined underneath the Indian act of arbitration, however if we have a tendency to point out the land law, then the expression, “substantive jurisdiction” is outlined underneath the Arbitration act 1996.

The term jurisdiction as defined under the “Stroud’s Judicial Dictionary”

 “Jurisdiction could be a dignity that a person hath by an influence to try to justice in causes of grievances created before him”.[3] The Authority to require cognizance and choose the matters after the courts or the tribunals is stated because the jurisdiction.”[4]

Modern Arbitration

The Modern Arbitration was first discovered within the British amount in 1772 by the virtue of Geographical region rules, this was the first time once the traces of Arbitration were supposed by this strike within the History.

Now underneath the act of 1940, ” courts were having dominant powers to intervene in arbitral matters, because of that potency of the work was hindered got occluded. Consecutive step the lawmakers took a wiser step and then introduced the 1996 act.

The most purpose of this act was to reduce the intervention of the courts in arbitral matters. Its embedded, that the premise of this act Square measure explicit within the UNICITRAL MODEL LAW.

Interpretation of Non-obstante Clause

Section 5 starts with a Non-obstante clause. This directly vindicates the Intervention of the courts within the matters of Arbitration. 

Under that, section 5 of the act talks about the Extent of the jurisdiction of courts in Arbitral Matters.

“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”[5]

The word utilized in the section like “no judicial Authority” and ” shall intervene” Square Measure wider than its scope to direct the purpose as explicit that there’s an absence of Judicial discretion, though this is too often to be taken in count that the term ” Reasonable” has its pursuance over this section, within the manner that the specific amount of Judicial Intervention is allowed to begin the Arbitrational Method solely.

By the Law, Makers believed that by the virtue of the act 1996, ” the court can support the dispute resolution with speed and potency, beside the affordable Intervention of courts” As the Law Makers determined that the Intervention of the courts was done by the Manner of Injunctions- as ” once the petitioner created out a clear case, the Arbitral proceedings were deemed to be “out of print” for an extended amount of time till the “keep order” gets vacated.

‘Therefore, this extent was primarily done to supply the Autonomy to the parties over the courts.’

Reasonable Intervention-

The court observed that the intervention of the court is permitted in few circumstances only, like in the cases Involving fraud, Bias Arbitrators, and the violation of natural justice, etc. And this thing is also to be taken into count that the court cannot correct the Arbitrators, it can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at a minimum level and this can be justified as parties to the Agreement make a conscious decision to exclude the courts’ jurisdiction by opting for arbitration as they prefer the expediency and finally offered for it.[6]

In many of the judgments deliver by the Supreme Court it has been clearly stated that section 5 reduces the judicial intervention whereas the section-34 of the act restricts the scope of the Intervention by the courts. In 2015, this section was amended, which further curtails the Judicial Intervention and limits the Ambit of “ Public Policy” by stating that an award is in conflict with the public policy of India, only in the cases, if they are affected by fraud or corruption, are against the morals of the society, and contravene the policy of Indian law.[7]

Justification of Interference by the Judiciary-

According to Russel, “The Essence of Arbitration is that some disputes are referred by the parties for settlement to a tribunal of their own choice instead of to a court”.[8]

Few justifications have been placed to back this statement-

  1. In India mostly domestic Arbitrations take place. Thus, there is a natural Dearth of any foreign element. The government or such agencies only becoming opposite parties. The arbitrators appointed by the center are government employees themselves who may be biased towards a particular party for various reasons.
  2. Political, power, and wealth can purchase justice and it is easier in the arbitration process as they are bit informal in character and arbitrators are more often than not, Not familiar with how to effectively conduct arbitral processes.
  3. The practical legal Market isn’t coherent with the theory behind Arbitration law, thus defeating its purpose.[9]

Conclusion-

It is well stated that, if we want to check the working of law in a country, we should look towards the court, because here the courts play an important role and portrait a good picture towards the law and justice. But due to the over the intervention of the court in the Arbitral Matters, which are to be working through a parallel line but without the intervention was getting its essence destructed, at the time when courts overstep its duties.

The Indian judiciary is always overburdened with work and around 24 million cases are currently pending, not ignoring the fact that there are around 17000 judges, which means our system is under strain. The reason this pendency is the bottlenecked staff delays the endemic and this can’t be ignored that over time the cases are no longer relevant or economic to contest, because it takes years to deliver the judgment.

The government of Narendra Modi embraced a heated debate on the concept of commercial courts in India, and finally, the act was passed in 2015, praising the commercial disputes in India. Which is really a good thing, but if we talk about its real vision, that some judges have been appointed to look of the matters resolving the dispute, so there is no shift of burden, but other than that it is over steeping on the existence of commercial disputes, and here only this extra effort goes in vain, and it will not help in the base issue which means-” Reform is underway although headlines initiatives can sometimes harder to see in practice on the ground”.[10] So, there is the urgent need to understand the concept of courts and the purpose of Arbitration to solve the dispute which was made to shift the burdened work.

Citations


  • [1] Section 2(1)(a), The Arbitration and conciliation Act, 1996.
  • [2] Section 2(1)(e), The Arbitration and reconciliation Act, 1996.
  • [3] Fredick stroud, stroud’s dictionary 3 (Sweet & Maxwell, 5th edn.,1986).
  • [4] Jaya v.s., “competency and Jurisdiction of Arbitral tribunals: some issues”, 26 Delhi law Review 96 (2004).
  • [5] Section 5, The Arbitration and Reconciliation Act 1996
  • [6] McDermott International Inc.v.Burn standards Co.Ltd.
  • [7] Satish Sharma, Limited scope of Judicial Intervention under Arbitration act, Nov 30, 2017.
  • [8] Indian Institute of Legal studies, www.iilsindia.com.
  • [9]Sankalpita pal,  Judicial Intervention in Arbitration, Indianlegalsolutions.com.  
  • [10] Arbitration in India: dispute resolution in the world’s largest Democracy, Indian groups legal briefings.

Jurisdiction Of Court in Arbitrational Matters

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