TM-System

Tomáš Michlík DiS.

TM-System - Tomáš Michlík DiS.

Unregistered Agreement Arbitration

In the decision on the second issue, the Bombay High Court focused on the intention of the legislature, while passing the amendment legislation. It was based on Section 11 (13) of the Act, introduced by the amending law which stipulates that an application must be made to the opposing party within sixty days of the date of notification of termination. The Bombay High Court found that Parliament`s intention was to ensure the rapid elimination of arbitration procedures with minimal judicial intervention for the legislature, which was responsible for increasing the interference of the courts in arbitration proceedings. The Bombay Supreme Court has ruled that, when the court rules on an application under Section 11 of the Act, the scope of the section 11 (6A) investigation is now limited to considering the existence of an arbitration agreement between the parties and, if such an agreement exists, disputes within the scope of the agreement should be referred to for decision by the creation of an arbitration tribunal. In order to limit the court`s intervention in the pre-judicial phase and to speed up the process of appointing arbitrators, the Law Commission of India proposed, in its August 246 report No. 246, several far-reaching amendments to the Arbitration Act, which became effective by amending the Arbitration Act in 2015 (Amendment 2015). 2015 Amendment, among others, adopted Section 11 (6A) in the Arbitration Act, which provides that the Supreme Court or the High Court, while considering any request for the appointment of the arbitrator under Section 11 of the Act, despite any decision, order or order of a court, has limited the review to „the existence of an arbitration agreement.“ The Law Commission of India provided the basis for the above inclusion as follows: „… The scope of judicial intervention is limited to cases where the Court or the judicial authority finds that the arbitration agreement does not exist or is not applicable. With respect to the nature of the intervention, it is recommended that the court or judicial authority appoint the arbitrator and/or, if necessary, refer the parties to arbitration in the event that the court or judicial authority is satisfied with the argument of the arbitration agreement.

The amendment provides that the judicial authority cannot refer the parties to arbitration only if it finds that there is no arbitration agreement or that it is null and void. If the judicial authority considers that the arbitration agreement exists prima facie, it refers the dispute to an arbitration procedure and will have the existence of the arbitration agreement definitively determined by the arbitration tribunal.

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