Authored by - Muskan
Designation - Student, Lloyd Law College
INTRODUCTION: Arbitration is a process in which a dispute is resolved between parties outside the court in an amicable manner. the concept of arbitration was first emerged in the late 19th century when the first Indian Arbitration Act, 1899 was enacted. In 1904, the Arbitration Act came into existence which shows the reflection of the English Arbitration Act, 1908.
The Arbitration Act of 1904 was not capable enough to tackle the problems of modern India, so it was replaced by the Arbitration and Conciliation Act of 1996 which is based on the United Nations Commission on International Trade law (UNCITRAL) Modern Law on International Commercial Arbitration, 1985. The Arbitration and Conciliation (Amendment) bill, 2021 was brought in to amend the Arbitration and Conciliation Act, 1996 which deals with provision of domestic and international arbitration and defines the law for Conciliation proceeding.
COMPETENCY OF ARBITRAL TRIBUNAL: There is no law created or enacted by the legislation for the jurisdiction of Arbitral Tribunal. The Arbitral Tribunal can decide it jurisdiction just like as a court. It decides its jurisdiction from the particular disputes of agreement between the parties which is usually set out in an arbitration agreement. The jurisdiction of the Arbitral Tribunal is consistent with the UNCITRAL Model law and the UNCITRAL Arbitration Rules. In India, Arbitration proceeding is carried out through Arbitration and Conciliation Act, 1996.
Capability of the Arbitral tribunal: The Arbitral Tribunal does not acquire defined jurisdiction. It can decrease or increase its jurisdiction accordingly. Arbitral Tribunal is capable of making its own jurisdiction in an Arbitration case which is mention in Section 16. If any objection occurs on the validity or existence of the arbitration agreement, then also the Arbitration Tribunal decides on its objection. If any plea occurs whether the Arbitral Tribunal does not have jurisdiction or it is exceeding its scope of authority, then Arbitral Tribunal shall decide on the plea whether to decide on the plea or rejects the plea, making an arbitral award under Section 16(5). If a party is aggrieved by such arbitral then they may make an application for setting aside such arbitral award under Section 34.
Section 5 of the Arbitration and Conciliation Act, 1996 ensures that no judicial Authority shall intervene in the proceeding of the Arbitral Tribunal in a case of arbitral agreement. Union of India & Another V. M/S East Coast Boat Builder & Another[1] – It was observed by the Hon`ble court that the Section 5 of the Arbitration and Conciliation Act, 1996 provides that the no judicial authority shall intervene in the proceeding of the Arbitral Tribunal and also the court reject the plea that Arbitral Tribunal has no jurisdiction. Section 16(5) of the Act provides that the Arbitral Tribunal has jurisdiction to decide on the plea and continue with arbitral proceeding in an arbitration case and make award without any delay. If the court intervene in the proceeding of the Arbitral Tribunal and passes an order and also if the Arbitral Tribunal accept the plea that it has no jurisdiction or exceed its authority then both the appeal will be entertained under Section 37 of the Arbitration and Conciliation Act, 1996.
Section 17 of the Arbitration and Conciliation Act, 1996 assures that the Arbitral Tribunal shall have the same power for making order as the court. Any order passed by the Arbitral Tribunal in an appeal under Section 37 will be equivalent to the order made by the court and will be enforceable under the Code of Civil Procedure, 1908 as like as order of the court.
The court shall assist Arbitral Tribunal with the arbitral proceeding and in taking evidence which is certified under Section 27 of the Arbitration and Conciliation Act, 1996. Sundharam Finance Ltd V. Nepc India Ltd[2]- It was observed by the court in this case that if a party chose to apply plea under Section 9 of the Arbitration and Conciliation Act, 1996, then the party is well aware that there exists an arbitration agreement, if an application is filed under Section 9 before the commencement of the proceeding. The arbitral court shall decide on its jurisdiction, if the court is satisfied with its jurisdiction, then it may pass an interim order under Section 9.
CONCLUSION: There is no provision made to define the extent of jurisdiction of the Arbitral Tribunal but it enjoys power to decide its jurisdiction in an arbitral agreement. The order made by the Arbitral Tribunal is enforceable under the Code of Civil Procedure, 1908 and it is binding as an order of the court and no court shall interfere in the jurisdiction of the Arbitral Tribunal but can assist it an arbitration case.
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