Arbitration
CASE ANALYSIS WITH RESPECT TO SECTION 11 OF THE ARBITRATION AND CONCILIATION ACT, 1996
The success of arbitration largely depends upon the selection of fair, impartial and competent arbitrator. The arbitrator is a creature of agreement between the parties. The parties are given the choice to agree between them, the procedure of appointment of Arbitrator and the number of Arbitrators to be appointed. It is subject to some regulations by law. In the absence of an agreement between the parties with respect to appointment of Arbitrator, the law provides a body of rules to fill the void.
The Act of 1940 provided for appointment of Arbitrator or Umpire under Section 8 on various grounds by Court. The important changes made, apart from removing the role of Civil Court from the appointed procedure, in the new Act. In the present Act, there is no provision for notice and hearing by the Court. The same is done away with. It would imply that challenge regarding the services of notices or ancillary matters would not at all require the judicial scrutiny before the appointment is made.
The cases regarding the same are as follows:
1) Konkan Railway Corporation Limited v. Rani Construction Ltd
In Ador Samia Private Limited Vs. Peekay Holdings Limited & Ors. [1999], the court had held that the order of the Chief Justice or his designate in exercise of the power under Section 11 of the Arbitration Act was an administrative order and that such order was not amenable to the jurisdiction of Supreme Court under Article 136.
The decision of the Bench of the three learned Judges affirmed this view in Konkan Railway Corporation Ltd. & Ors. Vs. Mehul Construction Co., [2000]. Thereafter, in the present case, a Bench of two learned Judges referred to a larger Bench the decision of the three learned Judges for re-consideration. This is how the matter came to before a Constitution Bench. Two issues which were to be decided in this case was-
Whether such an order was a judicial order
The success of arbitration largely depends upon the selection of fair, impartial and competent arbitrator. The arbitrator is a creature of agreement between the parties. The parties are given the choice to agree between them, the procedure of appointment of Arbitrator and the number of Arbitrators to be appointed. It is subject to some regulations by law. In the absence of an agreement between the parties with respect to appointment of Arbitrator, the law provides a body of rules to fill the void.
The Act of 1940 provided for appointment of Arbitrator or Umpire under Section 8 on various grounds by Court. The important changes made, apart from removing the role of Civil Court from the appointed procedure, in the new Act. In the present Act, there is no provision for notice and hearing by the Court. The same is done away with. It would imply that challenge regarding the services of notices or ancillary matters would not at all require the judicial scrutiny before the appointment is made.
The cases regarding the same are as follows:
1) Konkan Railway Corporation Limited v. Rani Construction Ltd
In Ador Samia Private Limited Vs. Peekay Holdings Limited & Ors. [1999], the court had held that the order of the Chief Justice or his designate in exercise of the power under Section 11 of the Arbitration Act was an administrative order and that such order was not amenable to the jurisdiction of Supreme Court under Article 136.
The decision of the Bench of the three learned Judges affirmed this view in Konkan Railway Corporation Ltd. & Ors. Vs. Mehul Construction Co., [2000]. Thereafter, in the present case, a Bench of two learned Judges referred to a larger Bench the decision of the three learned Judges for re-consideration. This is how the matter came to before a Constitution Bench. Two issues which were to be decided in this case was-
Whether such an order was a judicial order