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Report No. 176

2.8.8 Orders of the Chief Justice of High Courts

So far as cases of purely domestic arbitration between Indian nationals under sec. 11 are concerned, if the order is on the administrative side, it can be challenged under Art. 226 again before a Single Judge, then a Division Bench (since sec. 5 does not apply to administrative orders) and the Supreme Court under Art. 136 of the Constitution of India.

If the order under sec. 11 is to be passed by the 'High Court' on the judicial side, then in as much as it is a judicial order under sec. 11 of the Act even if it is passed by a single Judge of the High Court, there will be no appeal to a Division Bench because of sec. 5 which excludes appeal to a Division Bench which we are proposing to clarify by inserting an Explanation. The only stage for attack will be under Art. 136. If an order under sec. 11 is to be initially passed by a Division Bench as per the rules of procedure in some High Courts, again the only other remedy against it is the one under Art. 136.

Thus, while the order is by a Judge on the administrative side, will be amenable to judicial review in a fresh writ petition under Art. 226 before a single Judge, a Division Bench and then the Supreme Court. The position if it is on the judicial side, is that there will only be one appeal under Art. 136. This is also advantageous. Summing up the advantages, if the order under sec. 11 is on the judicial side, so far as international arbitration is concerned, all the three stages of further litigation are excluded and so far as purely domestic arbitrations between Indian nationals are concerned, instead of three stages, there is only one stage of attack under Art. 136.

The above discussion obviously proves that those, who consider that the existing position of the orders under sec. 11 being on the administrative side to be more advantageous, may not be fully aware of the aspect of advantages or disadvantages of two alternative. Therefore, in the view of the Commission, the applications under sec. 11 are to be made on the "judicial side" to the Supreme Court in cases of international arbitration in India and to the High Court in the cases of purely domestic arbitrations.

In fact, the UNCITRAL Model says that the applications under Art. 11 are to be before the 'Court'. Other countries have also enacted laws on the basis of the UNCITRAL Model conferring power on 'courts' to decide these applications. (See Art 11(4) of the Model Law, Art. 11 of the Canadian Act 1985, Art. 11 of the Korean Act, 1999, Sec. 14 of the Swedish Act 1999 and Art. 11 in Schedule I of the New Zealand Act 1996). In the view of the Commission, the recent Irish Act 1996 gives us the correct guidance.

The Irish Act 1996 which enables the President of the High Court or his nominee to decide these and other applications says that the applications are to be made to the 'High Court' and it defines 'High Court' to mean the President of the Court or his nominee. It is clear that the applications are only on the "judicial side". The relevant provisions of the Irish Act, 1996 are as follows:

"Sec. 6: (1) The High Court is specified for the purposes of Article 6 and is the Court for the purposes of Article 9 and the Court of competent jurisdiction for the purposes of Articles 27, 35 and 36 .

2. The functions of the High Court under an article referred to subsection (1) and its functions under Sections 7, 11(7) and (9) and 14(1) shall be performed by -

(a) The President of the High Court, or

(b) Such Judge of the High Court as may be nominated by the President, subject to rules made in that behalf."

In the light of the above, the Commission has proposed that sec. 11 be appropriately amended by substituting the words 'Supreme Court' for the words 'Chief Justice of India' and the words 'High Court' for the words 'Chief Justice of the High Court'.



The Arbitration and Conciliation (Amendment) Bill, 2001 Back




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