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Wednesday, May 4, 2022

Section 37 of Arbitration Act and the Issue of Lack of Jurisdiction

 



INTRODUCTION

 

In the last two posts (Post - I and Post - II), we had discussed the case of Oil and Natural Gas Corporation Ltd. (ONGC) v. Discovery Enterprises Pvt. Limited (DEPL) & Another, 2022 SCC OnLine SC 522, and the following issues: -

 

1. Can a Non-Signatory be bound by an Arbitration Agreement?

 

ANSWER - A non-Signatory may indeed be bound by an Arbitration Agreement. To read more, click here.

 

2. When can an Arbitral Award be said to be in conflict with Public Policy of India for adjudicating under S. 34 of the Arbitration & Conciliation Act, 1996 (In short, “Arbitration Act”)?

 

ANSWER – Six conditions have been spelt out by the Supreme Court. To read more about them click here.

 

On this post, we will discuss another very pertinent question that was raised by the Court in the present case, that is: -

 

What is Section 37 of the Arbitration Act, and does it include the power to adjudicate on an issue relating to jurisdiction of an Arbitral Tribunal?

 

WHAT IS SECTION 37?

 

Section 37 deals with appealable orders and provides that an appeal can lie from the following orders/decisions: -

 

a. An Order passed under Section 8 that refuses to refer the parties to arbitration where there is an Arbitration Agreement; or

 

b. An Order passed under Section 9, before or during Arbitral Proceedings but before passing of the Arbitral Award, granting or refusing any kind of interim protection to any of the parties; or

 

c. Orders setting aside or refusing to set aside an Arbitral Award under Section 34; or

 

d. An Interim Award passed under Section 16 (2) and 16 (3) by the Arbitral Tribunal that holds that the Arbitral Tribunal does not have jurisdiction or holds that the Arbitral Tribunal exceeded its scope of authority; or

 

e. An Order passed under Section 17 applying to Arbitral Tribunals and granting or refusing any interim measure or protection to any of the parties.

 

 LACK OF JURISDICTION

 

It is with respect to Point (d) i.e., Order passed under Section 16 relating to lack of jurisdiction, that the Court was concerned with in the present case. Noteworthy it is that Section 16 also provides that in case an Arbitral Tribunal rejects a plea under S. 16 (2) and (3), it may continue with the Arbitral Proceedings and pass its Final Award.

 

According to the Court, the expression “arbitral award” is defined in Section 2(1)(c) to include an interim award, and in a case where a plea is rejected by the Arbitral Tribunal relating to its lack of jurisdiction, the Arbitral Tribunal may continue with the Arbitral Proceedings and pass its Final Award. Such Final Award can be challenged by the parties under Section 34 on the grounds spelt out therein.

 

However, where a plea is accepted by the Arbitral Tribunal that it lacks jurisdiction, such an Interim Award would be amenable to the Appellate Jurisdiction of the Court under Section 37. Basically, “the decision of the tribunal that it lacks jurisdiction is not conclusive because it is subject to an appellate remedy under Section 37(2)(a).” “In the exercise of this appellate power, the court must be mindful of the fact that the statute has entrusted the arbitral tribunal with the power to rule on its own jurisdiction with the purpose of facilitating the efficacy of arbitration as an institutional mechanism for the resolution of disputes.”

 

Thus, the Courts must remain cautious that the broad approach under Section 34, which is of non-interference with the Arbitral Award, is not easily trifled with, when hearing the Appeals under Section 37. In the present case, the Interim Award of the Arbitral Award held that it lacked jurisdiction to investigate the JDIL Company and hence, such a decision was appealable.

 

CONCLUDING REMARKS

 

In the present case, we saw a web of appeals, petitions, awards and interim awards, that was deftly woven by the parties. Such deftness arises from the fact that the parties were not only aware of their rights under the Arbitration Act but were also financially capable to invoke them. As I said in my earlier post that such is not the case with most of the litigants. Even during the Arbitral Proceedings, it is often seen that the parties become financially destitute and even if they have the will power to challenge, their financial situation does not allow them to take advantage of the scheme of the Arbitration Act. Nevertheless, I concur with the reasoning of the Court in the present case on all the issues. It is quite an informative judgment and for anyone wants to learn the intricacies of the Arbitration Act, it would be a suitable exercise to read this Judgment.

 

To read all the posts relating to this case. Please click below: -

 

POST – I - CAN A NON-SIGNATORY BE BOUND BY ANARBITRATION AGREEMENT?

POST – II – PUBLIC POLICY AND SECTION 34 OFARBITRATION ACT

POST – III – SECTION 37 OF THE ARBITRATION ACT ANDTHE ISSUE OF JURISDICTION

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