Report No. 76
2.18. Position in other countries.-
So much as regards the case law on the Indian Acts. There are compelling reasons of logic why a fresh consent should not be required at the time of actual submission of the dispute. Before making our recommendation on the subject, however, it may be desirable to have a brief comparative discussion.
It would appear that some time ago1 an enquiry was made by the Indian Council of Arbitration, New Delhi from several foreign experts as to the true position in their countries in regard to the question whether, after an arbitration clause in a contract provides for the settlement of future disputes arising under the contract by arbitration either by an arbitral institution or by an arbitrator appointed ad hoc, it is necessary that the consent of both the parties to the contract should be obtained at the time of referring the dispute (after it has arisen) to the named institution or arbitrator. The following was the precise question formulated for opinion:-
"Whether under the arbitration legislation in your country, where there is an arbitration clause in a contract between the parties providing for settlement of future disputes arising under the contract by arbitration either by an arbitral institution or by an arbitrator appointed ad hoc, the consent of both the parties to the contract is necessary at the time of referring the dispute after it has arisen to the named institution or arbitrator. 111 other words, could the aggrieved party make a unilateral reference to the dispute to arbitration after the dispute has arisen irrespective of the consent of the other party to the contract at that time?"
1. No. 14(37)/72-Legislative II, Vol. I, Serial No. 2, Annexure (File of the Legislative Department).