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Report No. 176

2.8.15 Recommendations for recasting section 11:

In the light of the above, sec.11 is proposed to be recast as follows:

In section 11 of the principal Act,-

(a) in sub-section (4),-

(i) in clauses (a) and (b), for the words "thirty days", the words "sixty days' shall be substituted;

(ii) for the words, "the appointment shall be made, upon request of a party by the Chief Justice or any person or institution designated by him.", the following shall be substituted, namely:-

"the right to make such appointment shall be deemed to have been waived, if such appointment is not made within the said period and the appointment shall be made, upon request of a party or any person or institution designated by the High Court or any person or institution designated by it."

(b) for sub-section (5), the following sub-sections shall be substituted, namely:-

"(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within sixty days from the receipt of a request by one party from the other party to so agree, then the right to make such appointment shall be deemed to have been waived, if such appointment is not made within the said period and the appointment shall be made by the High Court or any person or institution designated by it."

(5A) Where the appointment procedure contained in the arbitration agreement becomes void under sub-section (1) of section 10A, the parties may agree to appoint an arbitrator within sixty days of a request from one of the parties: Provided that where the parties fail to agree on an arbitrator within the said period of sixty days, the appointment shall be made, upon request of a party, by the High Court or any person or institution designated by it."

(c) in sub-section (6)- for the words, " a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.", the following shall be substituted, namely:-

"and where such measures are not taken in accordance with the appointment procedure agreed upon by the parties, the right to take such measures shall be deemed to have been waived and a party may request the High Court or any person or institution designated by it to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment."

(d) in sub-section (7)-

a. for the words, " the Chief Justice or any person or institution designated by him", the words " the High Court or any person or institution designated by it" shall be substituted;

b. after the word, brackets and figure "sub-section (5)", the words, brackets, figure and letter "or sub-section (5A)", shall be inserted. (e) in sub-section (8) for the words " The Chief Justice or any person or institution designated by him", the words " The High Court or any person or institution designated by it", shall be substituted.

(f) for sub-section (9), the following sub-section shall be substituted, namely:-

"(9) In the case of appointment of a sole or third arbitrator in an international arbitration (whether commercial or not),the Supreme Court or the person or institution designated by it may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities."

(g) in sub-section (10)-

c. for the words "The Chief Justice may make such scheme as he may deem appropriate " the words "The High Court may make such scheme as it may deem appropriate," shall be substituted;

d. after the word, brackets and figure "sub-section (5)", the words, brackets, figure and letter "or sub-section (5A)", shall be inserted. (h) for sub-section (11), the following sub-section shall be substituted, namely:-

"(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (5A) or sub-section (6) to different High courts or their designates, the High Court or its designate to whom a request has been first made under the relevant sub-section shall alone be competent to decide on the request."

(i) for sub-section (12) the following subsections shall be substituted, namely.-

"(a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10), arise in an international arbitration (whether commercial or not), the reference to "High Court" wherever it occurs in those sub-sections, shall be construed as a reference to the "Supreme Court";

(b) Where the matters referred to in sub-sections (4), (5), (5A) (6), (7), (8) and sub-section (10) arise in any other arbitration, the reference to the "High Court" in those sub-sections shall be construed as a reference to the High Court within whose territorial limits the principal civil court or the court of the principal judge of city civil court referred to in clause (e) of sub-section (1) of section 2, as the case may be, is situated and where the High Court itself is the Court within the meaning of that clause, to that High Court."

(13) Where an application is made to the Supreme Court or the High Court ,as the case may be, under this section by a party raising any question -

(a) that there is no dispute in existence;

(b) that the arbitration agreement or any clause thereof, is null and void or inoperative;

(c) that the arbitration agreement is incapable of being performed;

(d) that the arbitration agreement is not in existence ; then the Supreme Court or the High Court ,as the case may be, may, subject to the provisions of sub-sections (14), decide the same.

(14) If the Supreme Court or the High Court, as the case may be, considers that the questions raised under sub-section (13), cannot be decided because,

i. the relevant facts or documents are in dispute; or

ii. oral evidence is necessary to be adduced; or

iii. the inquiry into these questions is likely to delay the reference to arbitration; or

iv. the request for deciding the question was unduly delayed; or

v. the decision on the question is not likely to produce substantial savings in costs of arbitration; or

vi. there is no good reason as to why these questions should be decided at that stage, it shall refuse to decide the said questions and shall refer the said questions also to the arbitral tribunal ."



The Arbitration and Conciliation (Amendment) Bill, 2001 Back




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