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Report No. 176

2.8.1 Appointment of arbitrators - Various issues under section 11:

During discussions in the seminar, several issues were raised under section 11, i.e., whether the applications under section 11 are to be made to the 'Chief Justice of India' or to the 'Supreme Court' in the case of international arbitration; whether the applications under section 11 are to be made to the 'Chief Justice of the 'High Court' or the High Court' in case of purely domestic arbitration; in other words, should the appointment of arbitrators be made on, the administrative side or the judicial side?

Whether there will be less scope for court intervention if the orders under section 11 are to be 'administrative'; these functionaries are acting as "persona designata"; or they can be deemed to be acting as persona designata so that even article 226 will not be available; will the stages of court intervention be less if the orders are to be made on the 'judicial side'?

In case the orders under section 11 are to be on the judicial side, whether it will save time and costs of arbitration. Therefore, whether jurisdictional issues, if raised, should be decided by the Supreme Court or the High Court on the judicial side in the section 11 applications or there should be a discretion to refuse to deal with them. Whether there is any possibility of having a flexible provision in section 11 which will enable the Supreme Court or the High Court to decide jurisdictional issues only if they can decide, without undue delay, where the relevant documents are admitted and no oral evidence is necessary. Should the same flexible procedure as in the case of similar issues in action under section 8 not be inserted in section 11?

Another issue raised is with regard to the time schedules prescribed in sections 11(4) and (5). Should they be construed as mandatory? Whether time limits should be fixed under section 11(6) also? These are the various issues that have been raised before us under section 11.



The Arbitration and Conciliation (Amendment) Bill, 2001 Back




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