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Shelal Lodhi Rajput[1] Introduction: The Supreme Court in Lombardi v. Engineering Limited (“Lombardi”), delivered by a 3-judge bench, reiterated that the Indian Constitution is a Grundnorm and every law needs to be in consonance with it. The court struck down a pre-deposit clause in an arbitration agreement by emphasizing the inviolability of the Constitution in arbitration agreements as it hindered the effectiveness of an alternate dispute resolution mechanism. The ruling is concerned with the dispute between a Swiss Corporation named Lombardi Engineering Ltd and Uttarakhand Jal Vidyut Nigam Limited (“UJVNL”), a corporation owned by the Government of Uttarakhand where Lombardi had filed an application under Section 11(6) of Arbitration and Conciliation Act, 1996 (“A&C Act, 1996”) for appointment of an arbitrator. The Court has reemphasized its commitment towards a pro-arbitration approach and stands affirm with its path-breaking precedent of ICOMM Tele Ltd. v. Punjab State Water Supply & Sewage Board & Anr., (“ICOMM”) on a likewise subject matter. In the said case, the Supreme Court struck down the pre-deposit clause in question on the ground that it was arbitrary and unjust. The judgment was hailed as well as criticized at length. However, the latest ruling in Lombardi restates the stance of ICOMM ruling as a pro-arbitration approach adopted by the court in arbitration jurisprudence. The decision in Lombardi deals with the intersection of constitutional law jurisprudence with arbitration law in the Indian milieu specifically regarding the existing jurisprudential understanding of Pre-deposit clauses in arbitration agreements. This article restricts its inquiry to the moot issue and does not explore other issues addressed by the Apex Court. Background and Facts in Dispute: In the instant case, the petitioner company entered into a contract with Uttarakhand Project Development and Construction Corporation Limited (UPDCC) provide consultancy services for a hydroelectric project. Subsequently, the project was transferred to UJVNL through a tripartite agreement. Dispute emerged between the parties, prompting the Petitioner to serve a Notice of Arbitration to the Respondent. This Notice aimed to initiate the process of selecting an arbitrator as outlined in the contract's arbitration clause. In response, the Respondent decided to terminate the contract, alleging that the Petitioner had not fulfilled their work and contractual obligations. The arbitration clause found in the General Conditions of Contract became a subject of scrutiny, and the Petitioner requested the appointment of an arbitrator to address their claims. Issue for Consideration: The crux of the matter lies in the objection raised by Petitioner against the two specific clauses Clause 53 and 55 of the General Condition of Contract (“GCC”). The core of the dispute revolved around the stipulation under Clause 55 of the agreement that the petitioner must deposit 7% of the arbitration claim as a security for invoking the arbitration clause. Apex Court has formulated the four major issues in the instant case for consideration but the core of dispute that’s addressed herein is whether the pre-deposit clause as provided in the Contract can be considered as violative of Article 14 of the Constitution of India for being manifestly arbitrary. The Judgment: Analytical Perspective On Constitution: Pre-deposit Clause and Arbitrariness The major consideration for the Court was whether the conditions stipulated in Clause 55 of GCC pertaining to the pre-deposit condition could be tested on the anvil of Article 14 or not. The arbitration clause in the GCC was under consideration herein along with other issues of appointment of an arbitrator to resolve their claims. Undoubtedly, it’s not the first time that courts have tested the arbitration clause on the touchstone of Article 14 while deciding Section 11(6) application, however, some interesting aspects herein are that the State is a party to the contract and there’s a pre-deposit clause in consideration. To erudite the aforesaid rationale, the Court traversed into jurisprudential understanding pertaining to Kelson’s Pure Theory of Law to elaborate on how the Constitution is Grundnorm and every and any law in India needs to adhere to the Grundnorm. The applicability of Art.14 herein is in order to ascertain that the clause should not be arbitrary in nature. It means that the stipulation under Clause 55 shall not be arbitrary and such arbitrary clause cannot be acted upon even by the consent of parties or in accordance with the principle of party autonomy as it contravenes the Grundnorm i.e., Indian Constitution. Along with that, such a clause should not be discriminatory in its approach to its application and it should be applicable to both parties. Further, the applicability of Art.14 in the context of a pre-deposit clause in the arbitration agreement has been explained by the Court in A.L. Kalra v. Project and Equipment Corporation of India Ltd.. In the case of ICOMM, the agreement explicitly stipulated the forfeiture of the security deposit, even if the judgment favoured the party that submitted the deposit. In this context, the court deemed such a provision arbitrary and in violation of Art. 14 of the Constitution. In the instant case, Clauses 3 and 4 of GCC concerning the security deposit for performance and its refund, are entirely unrelated to the predetermined 7% pre-deposit specified in Clause 55 of the GCC. The indistinct and ambiguous requirement of a 7% pre-deposit for the entire claim renders it more susceptible to arbitrary actions, thereby infringing upon Article 14 of the Constitution. An intricate aspect herein pertains to the private aspect of the contract, however, the Court highlighted the term ‘operation of law’ with relevant judicial precedents to depict the wider connotation resulting in coverage of the A&C Act, 1996. The court has not restricted itself to academic inquiry but also referred to five precedents from different high courts to demonstrate the theory of Grundnorm and they are Squadron Leader H. S. Kulshrestha v Union of India, Abdur Sukur & Another v State of West Bengal & others, Om Prakash Gupta v Hindustan Petroleum Corporation Ltd. & Anr, Government of Andhra Pradesh & Ors vs Smt. P. Laxmi Devi and Sunil v State of M. P. & Another. Thus, the arbitration agreement or any clause stipulated therein cannot be violative of Article 14 of the Constitution of India by virtue of Article 13 of the Constitution of India. A vital consideration herein pertains to the “party-autonomy” concept in arbitration law. Notably, it’s a settled position of law that there cannot be a consent against the law or to waive the fundamental rights. Thus, the arbitration clause needs to be in consonance with the “operation of law” to become legally binding and party autonomy cannot supersede the Grundnorm at any time. The court analysed the Pre-deposit clause on the anvil of Article 14 along with leading precedents on the subject matter. The court has comprehensively analysed the ICOMM and S.K. Jain judgments as they render contrasting decisions due to their different footings. A total of six decisions from different high courts were scrutinised by the Court. Those 06 decisions were related to determining the validity of the pre-deposit clause in the arbitration agreement and the appointment of an arbitrator in arbitration. High Courts have looked at the dictum of ICOMM and SK Jain and followed either one of them as per the facts of the case. Apex Court concluded that both the decisions were correct and not in conflict with each other. By doing so, the principles enunciated in ICOMM was further reiterated, relied and emphasised in the instant case to render the judgment. The Court concluded that Clauses 3 and 4, relating to security deposits for performance and their subsequent refund, were not directly or even indirectly related to the 7% pre-deposit mandate outlined in Clause 55 of the GCC. The lack of clarity and ambiguity surrounding the 7% pre-deposit requirement rendered it more prone to arbitrary interpretation, thereby infringing upon the principles of Article 14 of the Constitution. Doctrine of Freedom of Contract & Arbitrator’s Appointment Notably, this is not the first instance where the Court has granted special concessions to enhance the level of public interest in arbitration proceedings involving the State. In the case of Datar Switchgears Ltd. vs. Tata Finance Ltd. (2000), the court ruled in favour of a clause that allowed one party to unilaterally select the arbitrator in the event of a dispute. However, the discernible aspect herein is that the State is a party to the conflict and thus, the precedent of Datar is distinguishable on facts and is not applicable herein. This decision was based on the principle of contractual freedom, which granted parties complete discretion in shaping their own terms. This principle has been reaffirmed in various other cases involving two private parties. The scenario differs somewhat when the State is a party to the arbitration as in the instant case. In Voestalpine Schienen GmbH vs. DMRC Ltd., the Court scrutinized a clause that permitted DMRC to choose a pool of arbitrators from which the other party could then appoint one. The Court emphasized the necessity of having independent and impartial arbitrators in the arbitration process and deliberated on the significance of the arbitrators' neutrality, as outlined in Section 12(3) of the A&C Act, 1996. It also discussed the application of this provision concerning contracts with State entities and how the balance between procedural fairness and the binding nature of contracts has shifted in favour of the former. Closing remarks In crux, the court speaking through Hon’ble Justice J.B. Pardiwala held that the two conditions within Clause 55- firstly, a 7% deposit of the total claim amount and secondly, appointment of a sole arbitrator by Principal Secretary should be disregarded. It is because it hinders the independent and impartial nature of the arbitrator in arbitration due to vested interest as the State is a party to the dispute. Notably, the principal secretary is an employee of the State and thus, has a vested interest in appointing the arbitrator. Notably, the ruling of Perkins Eastman Architects DPC and another v. HSCC (India) Ltd held that no party who has any interest in the dispute can unilaterally appoint the sole arbitrator due to aspect of bias. Individuals with a vested interest in arbitration are not allowed to have the authority to nominate arbitrators. The Court has rightfully opined that the imposition of exemplary costs can be invoked in cases where claims are determined to be frivolous. However, requiring an upfront payment of 7% of the claimed amount and would contradict the primary objective of arbitration, which is to ensure the prompt, effective, cost-efficient, and expeditious resolution of disputes. This ruling establishes a precedent, upholding the integrity of the Indian arbitration process and reinforcing the Constitution as Grundnorm over arbitration agreements. It emphasises that the fundamental tenets of the constitution cannot be compromised by any agreement whatsoever and that arbitrary prerequisites must not impede access to justice. A food for thought Notably, on reading Para 82 of the judgment it seems that the Court has laid down a broad proposition of law for all arbitration agreements without deciphering the aspect of nature of parties and transactions involved in the dispute. In an instant case, the State is a party to dispute along with the private party, however, it would be interesting to see how the same facts will get treated in cases ahead as well as where dispute arises between private parties. In other words, in contrast to the discernible factor on the basis of which the ruling of S.K. Jain and ICOMM is deciphered. It poses a question of whether private law should be institutionalised. It will be intriguing to observe how this approach might enable the penetration of arbitrary clauses between two private entities in different sets of facts and formulation of pre-deposit clauses in arbitration agreements. It is possible that the Court could examine such an agreement using Section 23 of the Indian Contract Act, which renders contracts against public policy null and void. However, it's worth noting that this section is only invoked when the entire agreement is contrary to public policy. Whether it can be invoked when only one clause in the agreement is in question remains to be seen. [1] Shelal Lodhi Rajput is a 5th Year Student reading law [B.B.A. LL.B (Hons.)] at Symbiosis Law School, Pune (vidhigya.shelal88@gmail.com).

-Utkarsh Srivastava[1] and Gaurav Choudhary[2] Part I- Introduction The trajectory of the process of the appointment of an arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter ‘Arbitration Act’) operates from a mechanism which gives primacy to the approval of a voluntary, party autonomy-based appointment which is sanctioned by the courts and in the event of a failure of such process, an appointment is made by the judicial system.[i] There has been a long-standing jurisprudence of how an adjudication has to be made by the courts when treating a Section 11 application.[ii] This jurisprudence also includes questions pertaining to the extent to which a court must base its analysis in determining whether the Section 11 application should be dismissed or allowed. The conditions precedent to a Section 11 application is the existence of a valid arbitration clause and an arbitrable dispute between the parties. However, strictly limiting the court’s analysis to these conditions precedent while treating a Section 11 application has often resulted in a procedural imbroglio when this segment involves the applicability of a pre-arbitral mediation in the dispute resolution clause of the contract. Mediation is predominantly seen as a voluntary procedure in which the parties have significant control not only during the process itself but also beforehand, such as when they need to select a mediator. There are majorly three preferred routes for the appointment of a mediator, the first being the voluntary appointment by the parties, second by submission of the matter to any recognised mediation centre and third, wherein the court orders for commencement of mediation proceedings in a suit under Section 89 of the Code of Civil Procedure, 1908. In none of these routes do we find the applicability of any of the provisions of the Arbitration Act. However, there is a recent trend in courts where, while adjudicating on a dispute involving the applicability of a “Med-Arb Clause”, the bench has surprisingly not only appointed a mediator in an order Order under Section 11 of the Arbitration Act but has also simultaneously appointed the arbitrator before the commencement of mediation. The orders raise various procedural questions primarily in light of the timeline under Section 23(4) of the Arbitration Act. In this article, the authors, in Part II, try to decipher the judicial practice regarding the placement of mediation proceedings when the courts allow for mediation before the commencement of arbitration while considering Med-Arb clauses. Simultaneously, the recent deviation from such practice is also discussed. In Part III, the authors analyse the impracticality which arises due to this deviation in light of the mandate under Section 23(4). In Part IV, solutions which suggest a change in approach to the interpretation of the language of Section 23(4) are discussed. Finally in Part V, the authors give a brief yet effective conclusion to the whole article. Part II- Judicial practice in the treatment of Section 11 applications when there is the presence of a pre-arbitral mediation mechanism In India, courts have had differing views on the legality of multi-tiered clauses, with some considering them mandatory and others regarding them as voluntary pre-arbitration procedures. The same has been showcased through the treatment they have given to Section 11 applications when there has been a presence of pre-arbitral mediation in the arbitration clause. For example, in the celebrated judgment of Demerara Distilleries (P) Ltd vs Demerara Distillers Ltd, wherein the court, while analysing the problem, had rejected the stand of mediation being mandatory and had gone on to appoint an arbitrator. The Delhi High Court took it up a notch by holding that mere insisting by a party to first initiate the conciliation process before seeking initiation of arbitration would be a failure for appointment of arbitrator and, therefore, the same could be done by the court.[iii] The court, in such instances, rejected the claim for mediation and allowed the petition under Section 11 (6). However, on the other hand, the courts have also dealt with the same issue through a different set of eyes. For example, inSushil Kumar Bhardwaj vs Union of India,[iv] the Court had dismissed the Section 11 application on the ground that unless in the absence of an averment or a pleading to the effect that the agreed procedure or the procedure prescribed in law has been followed, there would be no option but to reject the application under Section 11(6) of the Arbitration Act as without cause of action and/or premature. In another instance,[v] the court had asked the parties to explore conciliation before turning to arbitration and had disposed of the application under Section 11. Therefore, from the above discussion, it is clear that the conditions under which a Section 11 application is allowed, and an arbitrator is appointed, cannot include allowing to conduct mediation simultaneously. However, there have been orders, such as in the case of Rao Constructions vs State of Karnataka,[vi] M/s. Hello Verify India Private Limited vs. M/s. Happiest Minds Technologies Private Limited,[vii] and Shreans Daga & Ors. vs. I.B.M. India Private Limited,[viii]wherein the court, while adjudicating on a Section 11 application, appointed an arbitrator to the dispute and not only permitted the mediation process to be followed before the arbitration but also appointed a mediator for such mediation under an application of Section 11. The Court, in both these cases, reasoned that there was an existence of a valid arbitration clause and an arbitrable dispute at hand, and therefore, it warranted the appointment of an arbitrator. These orders are irregular with respect to the legal process followed in India at multiple levels. Firstly, under no circumstances can a mediator be appointed under a Section 11 application. The scope of the provision is limited to the appointment of arbitrators, and mediation is not even covered by the statute itself. Even if the court were to appoint a mediator to the dispute, the correct procedure would have been a separate civil miscellaneous petition from the parties under which the court would have appointed a mediator.[ix] The appointment of a mediator under the Section 11 of the Arbitration Act is not tenable in law. Secondly, when the court upheld the mediation process, a pre-emptive appointment of an arbitrator was not the correct procedure to be followed. This is because when a court upholds the validity of such a mediation process before the arbitration, it presumes that the triggering of the arbitral process under the arbitration agreement would happen on a failure of the mediation mechanism.[x] Since the appointment of arbitrators is also a part of the arbitral process, therefore, such an appointment should also occur after the parties have exhausted the route of mediation given under the arbitration agreement to the contract.[xi] It is a settled position of law that, while adjudicating on a Section 11 application, the procedure agreed by the parties and party autonomy has to be given primacy.[xii] Therefore, if the parties have agreed to a mediation process before the arbitration, such a procedure should be followed while effectuating such adjudication. The appointment of an arbitrator not only frustrates the entire purpose of giving primacy to the procedure agreed upon by the parties but also provides for a practical impossibility to fulfilling the obligation under Section 23(4) of the Arbitration Act, which the authors have discussed in the next part. Part III- The timeline of Section 23(4) and how it affects this structure Not only the legal tenability of such orders is questionable, but their enforcement also provides for certain impractical circumstances for the parties. A possible impractical scenario can be considered in the case of the timeline mentioned under Section 23(4) of the Arbitration Act. According to the provision, the statement of claim and defence has to be completed within six months of the date wherein the arbitrators receive the notice of their appointment. When such a timeline mandate is seen in the context of an order where subsequent to an appointment of arbitrators, mediation has to be commenced, and post the failure of the mediation process, the arbitral proceedings will begin, it becomes nearly impossible for the parties to complete the statement of claims and defence within the duration of six months. Consider a situation where the mediation upheld under such an order itself takes six months. In such a case, since the computation of the duration for Section 23(4) will be calculated from the date when the arbitrators would have received the notice of their appointment, the mandate of six months would expire even before the initiation of the actual arbitral process. In addition to this, in the event that the parties try to adhere to this timeline, there is always a risk of an inefficient mediation process. In this respect, the applicability of the ratio in Geo Miller & Co. (P) Ltd. vs. Rajasthan Vidyut Utpadan Nigam Ltd. also needs to be checked. In this case, it has been categorically held by the Supreme Court that the duration of amicable settlement before the arbitral process would not be counted for the purpose of calculating the limitation period. However, this judgment is inapplicable for our assessment for two-pronged reasons. Firstly, in this judgment, there was no applicability of any pre-arbitral dispute resolution clause; rather, the parties were in the process of an amicable settlement between them. Secondly, this judgment relates to the time mandate under the Limitation Act, 1963 and the timeline under Section 23(4) is a separate time mandate and does not relate to the law of limitation. Part IV- Solution Certainly, under no circumstances a situation in the dispute resolution process can exist where a pre-arbitral dispute resolution process is initiated, and at the same time, the application under Section 11 is allowed as well. Such an Order is necessarily untenable in law. However, there is no explicit judgment which holds that a Section 11 application should be dismissed when a pre-arbitral mediation is upheld by the court of law. The judicial decisions in this respect only depict a practice wherein whenever such a dispute resolution mechanism is upheld, the Section 11 application has been dismissed. But, there isn’t any jurisprudence which entails reasoning as to why the courts dismiss a Section 11 application rather than moving forward with other alternatives such as granting a stay etc. Therefore, there is no explicit bar on the passing of such orders. Hence, our first solution would be to judicially forbid the passing of such decisions. The second solution in this regard would be to give a contextual broader interpretation to the words “receive the notice of their appointment” to mean initiation of proceedings and relax the time limit given under the provision. In the event of the continuation of the passing of such orders, the first hurdle which needs to be resolved is the pacification of the impossibility of complying with the mandate of Section 23(4). The non-compliance of the provision can provide an arbitrary leeway to the respondent party to file for termination of proceedings under Section 25. Therefore, to make the conditions surrounding the proceedings practicable for both parties, the time limit under Section 23(4) has to be relaxed either through a liberal interpretation or by an express relaxation by a judicial decision. Part V- Conclusion In conclusion, the treatment of Section 11 applications in cases involving pre-arbitral mediation mechanisms in India has presented a complex legal landscape. While there is no explicit bar on passing orders allowing simultaneous pre-arbitral mediation and Section 11 applications, such orders raise procedural and practical challenges. The judicial practice in this regard has been inconsistent, with some courts appointing an arbitrator and dismissing the Section 11 application when upholding the mediation process, while others have taken a different approach. To address this issue, it is imperative for the judiciary to establish a clear stance and judicially forbid the passing of orders allowing simultaneous processes of pre-arbitral mediation and Section 11 applications. This would provide clarity and avoid procedural confusion. Additionally, a contextual and broader interpretation of the timeline mentioned in Section 23(4) of the Arbitration Act could be adopted. By considering the initiation of proceedings as the trigger point for calculating the timeline, the practical challenges posed by the simultaneous mediation and arbitration process can be mitigated. Alternatively, a judicial decision explicitly relaxing the time limit under Section 23(4) could also provide a feasible solution. [1] Utkarsh Srivastava is a 5th Year Student at Dr Ram Manohar Lohiya National Law University, Lucknow. (utkarshsrivastava1610@gmail.com). [2] Gaurav Choudhary is a 4th Year Student at Dr Ram Manohar Lohiya National Law University, Lucknow. (gauravxchoudhary@gmail.com). [i] Gautam Bhatia, Section 11 of the Arbitration and Conciliation Act of 1996: The Jurisprudence of the Supreme Court and Implications for the Jurisdiction of an Arbitral Tribunal, National Law School of India Review Vol. 21, No. 2 (2009) pp. 67. [ii] Ibid. [iii] Oasis Projects Ltd. v. Managing Director, National Highway and Infrastructure Development Corporation Limited, 2023 SCC OnLine Del 645. [iv] Sushil Kumar Bhardwaj v. Union of India, 2009 SCC OnLine Del 4355. [v] Sanjay Iron and Steel Limited v. Steel Authority of India, 2021 SCC OnLine Del 4566. [vi] Rao Constructions v. State of Karnataka, 2020 SCC OnLine Kar 3498. [vii] M/s. Hello Verify India Private Limited v. M/s. Happiest Minds Technologies Private Limited, Civil Miscellaneous Petition No. 237 of 2020. [viii] Shreans Daga v. IBM India Private Limited, Civil Miscellaneous Petition No. 184 of 2019. [ix] Section 89, Code of Civil Procedure, 1908. [x] Nirman Sindia v. Indal Electromelts Ltd, Coimbatore, 1999 SCC OnLine Ker 149. [xi] Simpark Infrastructure Pvt Ltd v. Jaipur Municipal Corporation, 2012 SCC OnLine Raj 2738. [xii] Supra note 1.

Avesta Vashishtha[1] INTRODUCTION The integrity and effectiveness of arbitration as an alternative dispute resolution mechanism rely on the fair and informed decisions rendered by arbitral tribunals. However, there are instances where arbitral awards fail to address crucial and contentious issues, leading to a miscarriage of justice and violation of public policy. In such cases, the appellate court sets aside the arbitral award delivered by the tribunal without considering a crucial claim, while exercising its powers of setting aside an award under Section 34 (hereinafter ‘Sec. 34’). The continuous affirmation of the same by various High Courts, after the principle was established by the Supreme Court in the case of I-Pay Clearing Services, necessitates the recognition of violation of the basic intent of ‘The Arbitration and Conciliation Act, 1996’ if such awards are not set aside. This article entails a discussion on the infringement of rights in such situations and the aid of Sec. 34, analysing the perspective of various High Courts in dealing with set-aside applications. Further, it has been suggested how remitting such perverse awards back to the tribunal can be an efficient recourse. PERVERSITY DUE TO DISREGARD OF CONTENTIOUS ISSUE The general concept in view of various precedents in arbitration law has been that a flaw that can be corrected or removed from the award, shall be referred back to the tribunal for such correction under Sec 34(4), instead of simply setting it aside. But in numerous cases, the flaw is not curable, and the same is caused due to the sheer lackadaisical approach of the tribunal in recognising, acknowledging, and then discussing the major issues related to a dispute. The rights of the parties are so gravely affected that the award cannot be corrected by referring it to the same tribunal. The scope of Sec. 34 is set by the Supreme Court to allow the setting aside of such awards which are ‘perverse’ and patently illegal in nature due to disregard of a contentious issue. The term perverse has been interpreted widely to include a finding based on “no evidence at all or an award which ignores vital evidence” in arriving at its decision would be perverse and liable to be set aside on the grounds of patent illegality. CREATION OF CONUNDRUM W.R.T CONTENTIOUS ISSUES AND EVIDENCE The challenges posed by tribunals' ignorance of pertinent issues and evidence manifest in two ways: neglecting crucial evidence despite acknowledging the issue and completely overlooking a pertinent issue in the award. Either the tribunal acknowledges the issue, but fails to base its award on the evidence presented during the proceedings, or it altogether does not recognise a pertinent issue in the award. The former illegality is discussed frequently by courts when crucial evidence is ignored by the tribunal while passing an award. When the parties have put on record certain important aspects of the dispute, which are essential for concluding their rights, but the tribunal neglects such evidence, such award has been termed perverse in several judgements. In the latter situation, the tribunal is unable to conclusively determine the enforceable rights of the parties, let alone grant a legitimate award. For eg., an issue of limitation in a time-barred dispute would be a contentious aspect of the dispute, and passing an award without considering this issue would render the award patently illegal. If the award is given without any discussion on this issue, it would be unjust for the party against whom the award is passed, since the award holder would have taken advantage of the tribunal’s mistake by enforcing a right that has been statutorily prohibited. Another example is, if a party has surrendered a right and has been estopped from enforcing the same, or the Court has restricted it from raising certain claims during arbitral proceedings, but the unreasonable findings of the tribunal, wholly disregarding the existence of such facts, presents an award that goes against judicial orders of the court. JUDICIAL APPROACH TOWARDS SUCH AWARDS The Supreme Court, in the I-Pay Clearing Services case, conclusively decided the question of patent illegality when the tribunal failed to examine certain contentious issues, and held “in absence of any finding on contentious issues, no amount of reasons can cure the defect in the award”. Therefore, in such cases, the award cannot be remitted back to the tribunal for curing the same. This ruling has been followed in numerous High Court judgements. The Delhi High Court has recognised that such awards would be liable to be set aside under Sec. 34, and stated “While the Arbitral Tribunal had also duly taken notice of the contentious issue, unfortunately, the award is entirely silent on this issue. In the considered opinion of this Court, the Ld. Arbitral Tribunal has committed a manifest error in not coming to any finding on this issue.” It has been held in Inox Air Products (P) Ltd. v. Air Liquide North India (P) Ltd, “The learned arbitrator cannot reconsider his conclusion, or that Sec. 34(4) of the Act cannot be resorted to in a situation where the award itself may change as a result.” It has also been commented that such awards suffer from ‘incurable defects’ by not dealing with a party’s contentions[2]. Further, “a finding is based on no evidence, or an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or ignores vital evidence in arriving at its decision, such decision would necessarily be perverse.” The same perspective was also held in the landmark judgement of Ssangyong Engg. & Construction Co. Ltd. v. NHAI. UNNECESSARY MEDDLING BY COURTS The author opines that the argument where the arbitrator would not be able to appreciate the evidence a second time if it was ignored the first time, seems vividly exaggerated. If the award is remitted back to the tribunal, the arbitrators would be aware of the missing gaps in the award, and the same can be rectified specifically. Additionally, in numerous cases, arbitrators from non-legal backgrounds are appointed to deal with the technicalities of the subject matter that might be involved in the dispute. They are sometimes not aware of the procedural aspects of the legal system. An opportunity shall be given to them to rectify their errors and learn from the procedure so that they may render better awards in the future, without setting aside the whole award. Further, it has been abundantly established that the intent of Sec. 34 is to eliminate any curable defects from the award, which can only be done by the arbitral tribunal, and not by the court due to the principle of minimal judicial interference. Therefore, it is essential to remit the award back to the tribunal for deciding a pertinent issue. However, a problem exists where the court has to determine whether the lack of consideration given to certain evidence or contentious issue by the arbitrator renders the award totally incurable, or it can be remitted back to the tribunal for removing flaws. The test of perversity lies in the reasonableness of the decision of the arbitrator. The appellate courts have to determine perversity as follows -: “If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with”. The ambiguous and wide scope in Sec 34(4) exercised in such cases can create discrepancies in different cases, where the court is burdened with the discretion to decide the contentious issues of the dispute, and whether the same should be referred back to the tribunal owing to their curable/incurable nature. The court’s powers are restricted to determining the same, and not entering the merits of the case that has already been heard at length. Hence, the court is left with the sole alternative of setting aside the award. The approach of determining reasonableness in the award is followed while evaluating perversity, but the same does not have any set standard of rules that govern ‘reasonableness’ in an award. Therefore, the appellate courts have to conclude whether an award is reasonable, and there is sufficient scope correcting the award by remitting it back to the tribunal even where a contentious issue has been omitted. One of the standards for remitting back an award is whether the arbitrator failed to determine an issue because of ‘pure oversight’, and if the same can be corrected, it should be remitted back to the tribunal. This would be a subjective test based on factual circumstances of different cases. CONCLUSION The award should be sent back to the tribunal for the arbitrators to consider the relevant issue or evidence, and alter the award if needed. The same would be based on the legal intent of arbitration, wherein enforcement of awards is given a superior pedestal with due relevance than simply abrogating the award. There might be certain aspects of a dispute which, if ignored, would lead to grave injustice and biases in the award rendered by the arbitrator. The recent developments in the judicial sphere concerning awards omitting ‘contentious issues’ has been inclined towards setting aside such awards. But at the same, the courts must restrain itself from setting aside each award instantly. Striking the right balance between setting aside awards and allowing tribunals to rectify curable defects can uphold the integrity of arbitration and ensure justice prevails. [1] Avesta Vashishtha is a 3rd year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. [2] Indian Oil Corpn Ltd v FEPL Engineering Ltd 2023 SCC OnLine Del 1617.

Nitesh Ranjan[1] & Aman Upadhyay[2] ESG stands for Environmental Social Governance. In this globalized world industrial sector is flourishing at a very high pace. As such, it is inevitable to maintain a balance between environmental well-being and economic affluence. In this regard, certain standards and sets of guidelines are needed to protect the environment and in turn, protect the biotic components of the world. Introduction Environmental, social, and governance (“ESG”) refers to a set of standards for a company’s behaviour used by socially conscious investors to screen potential investments. Environmental criteria take into account a company's environmental protection efforts, such as corporate climate change policies. The management of relationships with customers, suppliers, employees, and the communities in which it operates is examined under the social criteria. Leadership, executive compensation, audits, internal controls, and shareholder rights are all topics covered by governance. The number of legal disputes involving ESG-related concerns tends to rise as ESG becomes more significant in business policies and investment choices. A wide range of ESG-related claims regarding its interpretation and compliance in specific circumstances have already been filed in numerous judicial and quasi-judicial forums, demonstrating the broad scope of those issues. However, there are two types of claims that are particularly well suited for arbitration: claims based on commercial contracts and claims based on treaties. Legal Foundations & Statutory Compliance The Environmental pillar of ESG becomes immensely important in relation to the growing global concerns over environmental degradation, carbon footprints, and related issues.There has also been a growing concern about human rights globally. As such, it is important for corporates to comply with the standards in terms of human rights and maintain harmonious relationships with the employees. Hence, the Social Pillar becomes the base here. Similarly, for the successful conduct of a company, there should be efficient and honest management, which is covered under the governance pillar. There are certain provisions in various statutes from which the idea of ESG seems to have culminated. Section 135 of the Companies Act (“Act”) provides for Corporate Social Responsibility, in accordance of which, it is explicitly mentioned in Schedule VII(iv) of the Act that ensuring environmental sustainability may be included by companies in their CSR policies. In addition to that, among others, the Environmental Protection Act, 1986 (“EPA”) contains various provisions which form the base of the Environmental pillar. From laying down standards for the emission of environmental pollutants, as per Section 3(2)(iv) of the EPA, to carrying out and sponsoring investigations and research relating to problems of environmental pollution [Section 3(2)(ix)], the EPA gives several powers to the central government to take measures to protect and improve the environment. As such, the companies are expected to comply with the rules. As far as the Social pillar is concerned, it has to be seen from the perspective of various labor laws based on the principles of social security, social justice, and social equity. Apart from this, Article 43 of the Constitution of India provides that the State shall endeavor to secure a living wage, decent standards of life, etc. for workers. Parliament has passed a number of laws pertaining to workers’ social security. In 1948, the parliament passed one such law called the Employees’ State Insurance Act. It was the first substantial social security law to give such benefits to organized sector workers in cases of sickness, maternity, and injuries at the workplace. There are certain other legislations like The Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, with which a company is expected to comply. As for corporate governance, the Board of Directors is responsible for the smooth and efficient management of the company. Companies Act, 2013 and Companies Rules, 2014 provide a robust framework for the same. Section 177(9) of the Act, requires the corporation to develop a vigil mechanism through which directors and employees can report concerns about unethical behavior, real or suspected fraud, or violations of the company’s code of conduct or ethics policy. Role of Arbitration in ESG Dispute Resolution: Enhancing Effectiveness? Indeed, the International Chamber of Commerce (ICC) task force's 2019 report on “Resolving Climate Change Related Disputes Through Arbitration and ADR” noted the growing trend of ESG disputes being resolved through arbitration and made the case that arbitration is particularly well positioned to achieve this goal. Arbitration is well-suited for addressing ESG disputes due to its ability to select specialized arbitrators who understand the complexities of ESG issues, its capacity to handle international aspects effectively, and its provision for swift injunctive relief. The component of party autonomy in arbitration makes it easier for the parties to choose arbitrators who hold expertise in the field of arbitration. Judges may not be suitable for adjudicating upon the specifics of three pillars of ESG. The issues related to ESG are affecting people globally. In case a corporation is not maintaining the environmental standards, it would have effects globally. When the social pillar is not taken into consideration, the delicate social fabric is tinkered with, which affects society at large. And for that matter, the violation of governance pillar will have impact to a similar extent. As such, arbitration would enable parties to get quick injunctions to address these impacting issues. At the same time, the arbitral awards tend to gain recognition globally owing to the New York Convention, 1959. Commercial Contracts and Investment Treaties Arbitration: A Saga of Two Businesses can control ESG risks through the management of commercial contracts. Companies have the chance to assess their current supply networks and try to implement ESG into their contract portfolio as a result of exceptional supply chain disruption. These ESG guidelines may be derived from a company’s own ESG objectives and policies or from relevant legal requirements. Where there are varying standards, laws or regulations, and levels of openness between several nations throughout the supply chain, ESG contractual requirements will be especially important. Contractual clauses demanding compliance with specified ESG-related duties by all counterparties can be used to resolve jurisdiction-based conflicts. International trade and investment treaties are now increasing at a rapid rate. The relationship between ESG factors and investment arbitration has been largely overlooked, both in academic discourse and practical considerations. Article 15 of the BLEU Model BIT (2019) provides that, “Each Contracting Party shall ensure that its laws and policies provide for and encourage high levels of environmental and labour protection and shall strive to continue to improve those laws and policies and their underlying levels of protection.” This could lead to the emergence of new and innovative claims and defenses in the settlement of investor-state disputes, with more claims being brought by states. For instance, states might be allowed to bring claims (or counterclaims) against investors for ESG failures and/or the diluting of investor protection where that protection conflicts with the state's ESG objectives. ESG considerations have helped host states file winning counterclaims in cases like Perenco v. Ecuador . In the instant dispute, Ecuador claimed that Perenco's business operations caused a serious environmental catastrophe. The host state requested restitution to make up for the harm done to the environment. The tribunal made a decision in response to Ecuador's environmental counterclaim, ordering the investor, Perenco, to give Ecuador a substantial amount of USD 54 million as compensation for the essential remediation efforts required to address the environmental catastrophe. Typically, investment treaty arbitration conducted by ICSID serves as the forum for dispute resolution. The Conclusion ESG commitments are becoming more and more significant. Businesses who are able to adjust to these expectations stand to gain significantly. Arbitration could be a useful tool for resolving ESG conflicts. Arbitration is in a unique position to settle ESG issues because it offers the option of selecting a neutral court with subject-expert arbitrators. Therefore, it is expected that there will be an increase in the number of arbitrations on this subject given the growing significance of ESG in business operations and the benefits that arbitration provides for resolving ESG issues. ESG risk allocation clauses are now more prevalent in commercial contracts that businesses sign into as a result of the expanding scope of ESG duties. This tendency is clearly evident in merger and amalgamation deals, which frequently address ESG issues. Similar to this, it is typical for businesses to attempt to reduce and manage ESG risk in the agreements they make with their suppliers throughout their whole manufacturing chain. These clauses have caused commercial issues and most likely will continue to do so. We can anticipate that international arbitration will frequently be the preferred forum for the resolution of ESG-related disputes because many of the companies that are now putting ESG-related elements in their contracts operate on a worldwide scale. [1] Nitesh Ranjan is a 3rd Year Student at the National University of Study and Research in Law, Ranchi. (nitesh.ranjan@nusrlranchi.ac.in). [2] Aman Upadhyay is a 3rd Year Student at the National University of Study and Research in Law, Ranchi. (aman.upadhyay@nusrlranchi.ac.in).

Aman Upadhyay[1] and Nitesh Ranjan[2] Introduction The structure of modern society is completely different from the ancient society, now disputes arise more frequently. Intellectual property is not immune to disputes, such as those resulting from registration, licencing, and infringement. The establishment of a peaceful and progressive society requires a quick resolution of these conflicts. It becomes a very cumbersome task to resolve disputes quickly and without much expense for a highly populated country like India. The courts are overburdened with already pending cases. Arbitration works as a good alternative to the courts. Also, now arbitration has become the default commercial dispute mechanism because it is less expensive, quicker, secure and offers more privacy. In India, arbitration is recognised as a medium of dispute resolution vides Section 89 of the CPC. Although arbitration is not a new concept to resolve disputes still its expansion to include disputes involving intellectual property is a developing jurisprudence. The court and statutory provision don’t have a clear instance in IP infringement-related disputes. Intellectual property rights while originating in municipal law now is deeply rooted in International law, and play a vital role in the protection of creativity. The clarity in the scope of arbitration in IP rights is the need of the hour for achieving its objective. Legislative Ambiguity: A Much-Needed Reform Statuary provisions are important to mention since the arbitrability of some matters is ascertained by them. Although nothing in the Arbitration Act precludes the enforcement of awards with respect to Intellectual Property Rights, including the validity or infringement but Section 135 of the Trade Mark Act, 1999 provides that trademark holders can seek judicial remedies through civil court. Further, the Copyright Act also provides that any suit or civil proceedings in matters of copyright infringement shall be instituted by the civil court having jurisdiction. In some instances such as Indian Performing Right Society (IPRS) Ltd. v. Entertainment Network (India) Ltd,[3] narrow interpretations of these sections are being taken and held as the matters can only be resolved by the court not arbitration. The concept of ‘commercial disputes’ in the Commercial Courts Act, 2015 includes intellectual property conflicts, as per section 2(1)(xvii) of the Act. This means IP disputes are inherently considered as being within the ambit of commercial disputes as defined by the act. Furthermore, the Commercial Courts Act provides that commercial disputes can be arbitrated without excluding IP disputes Following this it could be inferred that the matters on IP disputes comes under the ambit commercial dispute that can be resolved through arbitration under the Commercial Courts Act. Section 103(5) of the Indian Patent Act, 1970 allows for arbitration only in instances involving the government. The statuary provisions are ambiguous, perhaps by some reform or amendment in the legislation such as by specifically providing about the arbitrability of IP disputes in the Arbitration and Conciliation Act the issue could be resolved. Determination of Arbitrability in India: Uncertainty Prevails The phrase “Quo Vadis Arbitration” (where do you go arbitration)has famously been asked by Peter Pender and is particularly relevant for the Indian context because of the inconsistency in the laws related to the question of arbitrability. In 2011 with the case of Booz Allen Hamilton vs SBI Home Finance the Supreme court made its first attempt to determine the arbitrability of any matter. In this case, the court laid down that disputes related to right in rem must be out of the scope of arbitration and only disputes related to right to personam can be arbitrable. The Court further stated that personal rights or obligations arise as a subset of public rights. But the issue with this test is that sometimes the matters of right rem and right in personam become difficult to differentiate. The same follows in the cases of Intellectual property rights disputes. In Ayyasamy vs Paramasivam while adding to the list of non-arbitrable matters, the Supreme Court has held that arbitration is available only in the cases where the law accepts arbitration as an alternative remedy. In the judgement court has neglected, the ambiguity of statutory provisions that are silent in the question of the possibility of arbitration in matters of IP disputes. The law doesn’t give a clear view either on the arbitrability or the non-arbitrability of IP matters. Another segment of non-arbitrable matters is related to the State’s inalienable sovereign and public interest functions. In the recent case of Vidya Dorlia vs Durga Trading Corporation Supreme Court has given a “fourfold test” to determine when the subject matter of a dispute in an arbitration agreement is non-arbitrable. According to the test, matters related to right in rem, matters which affects the third party ‘erga omnus effect’, the matters of State’s inalienable sovereign function, disputes which are non-arbitrable on the account of expressly or impliedly stated under the statute are excluded from the scope of arbitration. The ‘fourfold test’ given in the Vidya Dorila case is much needed as with the advancement of technologies new forms of disputes are arising but there is inconsistency and non-clarity in the usage of these rules. The right in rem and personal are still in question on some subjects. The fourth point of the test is questioned since the possibility of conflicting opinions regarding the restriction of arbitration remains open because of the vagueness of statutes on this subject. The pendulum of conflicting decisions: conundrum persists in arbitrability of IP Mundipharma AG vs Wockhardt Ltd. was one of the earliest cases which determined the arbitrability of IPR matters. In this case, the court took a narrow view regarding the arbitrability of intellectual property rights. Following statuary wording under part II of the Copyright Act, 1957, the court concluded that copyright infringement is non-arbitrable since it is up to the civil court to decide all remedies related to copyright infringement. The purposive interpretation of the act was beyond the view of the court since the purpose of the lawmakers while forming any legislation is to provide speedy and fair justice to the stakeholders. Currently, arbitration is one of the best mediums to accomplish this objective. Interpreting the statutory wording of the act provides jurisdiction to civil courts to decide remedies as the prohibition to arbitration is not correctly construed. In the SAIL case, the Bombay High Court has rejected the arbitrability by saying, “The rights to a trademark and remedies in connection therewith are matters in rem and by their very nature not amenable to the jurisdiction of a private forum chosen by the parties”. The judgement didn’t consider the possibility of right in personal within the IP infringement disputes as numerous matters related to IP disputes don’t affect society at large. A different approach in this matter was brought through the Ministry of sound international vs Indus Ranassiance Partners Entertainment Pvt. Ltd. In this case, the court has defended arbitrability owing to the fact that licencing agreements should be interpreted following the common sense approach. Since there is no absolute statutory prohibition on the arbitrability of IPR the Court held that agreements facilitating the licensing of trademarks would merely affect the rights of parties and not infringe on any legal provision. After all, it is a business document that grants the licensee permission to use the trademarks and intellectual property. The arrangement, according to the Court, was governed by English law, allowing the tribunal to issue injunctive relief. As a result, the court determined that the case should be resolved through arbitration. The Delhi High Court gave an important judgement in Golden Tobie Private Limited v. Golden Tobacco Limited. Referring the case to an arbitrator, the Court laid down that as the dispute was between a family group regarding the usage of trademark, thereby “The right that is asserted by the plaintiff is not a right that emanates from the Trademark Act but a right that emanates from the Agreement... assignment of the trademark is by a contract and not by a statutory act. It does not involve any exercise of sovereign functions of the State. It cannot be said that the disputes are not arbitrable.” Thus, the court has affirmed that IP disputes which arise out of a contract and not directly from the statute would be arbitrable. The court is right in this approach however, the scope of arbitration in the matters of IP disputes needs to be broadened. Limiting the arbitration in IP disputes to this extent is restricting the advantages which could be achieved by increasing the ambit. The ambiguity in the scope of arbitration in IP disputes persists since the decisions don’t follow a certain way and the same could be accounted to the lack of statutory provisions. Current Scenario and The Way Forward In arbitration, parties get an opportunity to carefully draft the arbitration clause. This meticulous drafting avoids potential difficulties and ensures that the interests of parties are ascertained. The right in rem approach deprives parties from taking such crucial benefits. There is no doubt that even now the conflicting decisions have made the question related to the arbitrability of IP disputes unclear perhaps due to the lack of statutory provisions. While the formulas given by Vidya Drolia and the approach of the Delhi High Court in the Golden Tobie case have provided some clarity to this issue but the ambiguity still remains. The complexity of IP disputes such as the possibility of right in personam in the disguise of right in rem and also in some contractual IP disputes, litigation would be in favour of the public interest instead of Arbitration. It is a need of the hour to come up with some clear provisions for the matter related to the arbitrability of IP disputes. As it’s already discussed by the authors that there is no clear legislative intendment in either existing IP statutes or Arbitration Act for exclusion of IP disputes from the ambit of arbitration. Even a certain extent the holistic understanding of the statutes shows the implied intention of making IP disputes amenable to arbitration. The expressed provision related to the arbitrability of the IP disputes in arbitration act or IP statues will bring clarity regarding this. IP disputes often transcend the boundary of the nation. Since arbitration has long been one of the most popular ways for businesses to resolve disputes, a nation with pro-arbitration legislation attracts investors and encourages them to invest in its companies. By making IP disputes arbitrable in India, the government can take a step ahead in the path of promoting India as an arbitration-friendly nation and attract more foreign investment, which will boost the country's economy. [1] Aman Upadhyay is a 3rd Year Student at National University of Study and Research in Law, Ranchi. (aman.upadhyay@nusrlranchi.ac.in). [2] Nitesh Ranjan is a 3rd Year Student at National University of Study and Research in Law, Ranchi. (nitesh.ranjan@nusrlranchi.ac.in). [3] Indian Performing Right Society (IPRS) Ltd. v. Entertainment Network (India) Ltd, 2016 SCC Online Bom 5893.

Gautam Mohanty & Arnav Doshi[1] INTRODUCTION In a relief from a catatonic arbitration regime in the context of litigation funding, the recent Delhi High Court decision in Tomorrow Sales v SBS Holdings probed the possibility of recovering adverse costs from arbitral proceedings from third party funders. At the outset, the Delhi High Court in the aforesaid decision has solidified the position for third party funding (“TPF”). A brief version of the facts in the present matter pivoted around a Bespoke Funding Agreement between SBS Transpole (“Transpole”) and Tomorrow Sales Agency (“TSA”) which provided that TSA would, inter alia, provide financial assistance of INR 250 crores to Transpole’s claim against SBS Holdings Inc. (“SBS”) and Global Enterprise Logistics Pte. Ltd., Singapore. Transpole referred its claim by virtue of an alleged breach of contract against SBS to arbitration before the Singapore International Arbitration Centre (“SIAC” or “Tribunal”). However, the SIAC Tribunal rendered an award in favour of SBS, dismissing the claim and awarded costs of the proceedings in favour of SBS. Accordingly, SBS filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”) before the Delhi Court, praying, inter alia, for interim measures aiming to secure the arbitral award rendered by the SIAC tribunal. Notably, SBS prayed for the disclosure of the assets and related bank accounts of TSA and other respondents and further furnish security to secure the proceeds granted to it under the arbitral award. Pertinently, TSA was not a party to the arbitral proceedings nor an impugned party in the arbitral award rendered by the tribunal but had merely funded the claimant to pursue the arbitral proceedings under a funding agreement. In the first instance, the Single Judge of the Delhi High Court imposed liability on TSA on account of substantial interest and control in relation to the arbitral proceedings. The Single Judge after referring to the decisions rendered in Arkin v. Borchard Line Ltd. & Ors. and Excalibur Ventures LLC v. Texas Keystone Inc and Ors reasoned that TSA had “an exclusive, unfettered right on the damages recovered”, and thus, labelled TSA the real beneficiary of the arbitral proceedings despite being neither a party to the arbitral agreement nor the consequent proceedings. Therefore, TSA was directed to disclose their fixed assets and bank accounts in view of the payment of adverse costs. The single judge of the Delhi High Court further held that a party that undertakes the funding of legal proceedings with a speculative intent for profit cannot evade accountability and that a delicate equilibrium must be struck between ensuring access to justice through funding arrangements and the encumbrance that a respondent might endure in instances where the litigation falters on account of its intrinsic lack of merit. The learned Singular Justice articulated that allocating the financial burden of litigation expenses onto the respondent for the sake of mounting a defense against litigation that is found devoid of merits – and perhaps would not have been instigated but for the financial backing of an external party(funder) – was incongruous. However, on appeal, the Division Bench of the Delhi High Court overturned the decision of the single judge. The Division Bench distinguished that the instant matter was regarding “whether a person who is not a party to the arbitral proceedings or the award, rendered in respect of disputes inter-se parties to the arbitration, can be forced to pay amount awarded against a party to the arbitration” in lieu of whether a non-signatory can be bound by the arbitration agreement (group of companies/ alter ego doctrine). The Bench concluded that- firstly, TPF was disclosed at the start of the dispute, and SBS’s application to the SIAC tribunal for security and for costs was rejected on grounds of want of evidence. The division bench of the Delhi High Court observed that a third-party may be bound by the arbitral award only if was a party to the arbitration proceedings. Thus, the Court by a necessary corollary inferred that a party against whom the arbitration agreement was not invoked and who was not a party to the arbitration proceedings would not be bound by the arbitral award and consequently no question of enforcing an arbitral award against it would arise. Hence, as per the Court, SBS having failed to join TSA as a party to the arbitration cannot seek to add TSA to the enforcement proceedings by seeking interim measures against it. In the words of the Court, “[T]SA is not a party to the Arbitral Award. It cannot be treated as a judgment-debtor under the Arbitral Award if it is enforced as a decree, as required under Section 36(1) of the A&C Act…None of the clauses of the BFA provide any obligation for TSA to fund an adverse award.” Secondly, there existed no rule under SIAC, High Court Rules, the Arbitration and Conciliation Act, 1996, or the Code of Civil Procedure, 1908 that provided for imposing costs on a non-party to an arbitration. Thirdly, and lastly, the Bench laid a keen emphasis on observing a balance between ensuring access to justice through such funding arrangements and the cost borne by the defendant in the event of a meritless case. The Bench expressed that “third party funding is essential to ensure access to justice. In absence of third party funding, a person having a valid claim would be unable to pursue the same for recovery of amounts that may be legitimately due.” In light of the same, this post discusses TPF as a mechanism to ensure and safeguard access to justice for parties in international arbitration (I) and discusses the need to regulate nascent TPF arrangements in India (II). I. Deciphering the access to justice rationale of TPF The pivotal role of TPF in ensuring access to justice warrants careful consideration. It is imperative to delineate between access to justice and access to arbitration. Access to justice, in its broader purview, encompasses not only access to courts but also the availability of diverse judicial mechanisms for dispute resolution. Consequently, the equivalence of access to arbitration with access to justice holds merit only when arbitration represents the singular recourse for the funded party. It is noteworthy that parties may engage TPF not solely due to impecuniosity but as a deliberate strategic choice aimed at preserving their financial equilibrium or circumventing the onerous fiscal encumbrances associated with arbitration proceedings. The empirical research carried out on the behavioural patterns of funders highlights that the claim that TPF promotes access to justice is a little wide off the mark. One research that analyzed the behavioural patterns of funders highlighted that funders are “rational” in their decision-making process and tend to primarily fund high value claims. The abovementioned proposition is further strengthened by the practice of funders wherein some funders disclose that the minimum value of claims they are willing to fund ranges between £15 million to £2 million or from €100,000 to €300,000. Similarly, another research indicates that TPF does not always result in an increase in access to justice and tends to increase the number of frivolous claims. The most extensive research carried out on the litigation funding industry in Australia concluded that TPF in litigation increases frivolous litigation and its impact on access to justice was “ambiguous”. The summation of all empirical research carried out on TPF leads to the unmistakable conclusion that TPF is only available to a limited number of claimants who have a high number of claims and particularly those claims that have a high chance of success. Hence, as a necessary implication, low value claims and claims that are weak on merits are likely to lose out on accessing funding. II. Normative Frameworks Governing TPF in India In addition to the issue of TPF furthering the tenets of access to justice, there exists a regulatory vacuum for such financing transactions in India. It is pertinent to note that the Supreme Court in Bar Council of India v AK Balaji clarified that there appears to be “no restrictions on third parties (non-lawyer) funding the litigation and getting repaid after the outcome of the litigation”. Despite the Apex Court paving the way for TPF, the legal landscape in India is bereft of a legislative instrument, such as the ones introduced in Singapore and Hong Kong, that regulates litigation funding. In a similar vein, the rules of prominent institutional arbitration centres in India like the Delhi International Arbitration Centre Rules, 2023, Mumbai Centre for International Arbitration Rules, 2016, International Arbitration and Mediation Centre Arbitration Rules, and International Centre for Alternative Dispute Resolution Arbitration Rules, 1996, do not contain any provisions for TPF or litigation funding. Barring the residuary powers under institutional rules that allow a Tribunal to take appropriate decisions on all matters which are not specifically provided for. Moreover, both- the Act and institutional rules- are silent regarding the regulation of TPF. Notably, recognizing the significance of litigation funding in Tomorrow Sales v SBS Holdings passes the smoke-test but also poses a a potential minefield, particularly in the absence of a legislation governing third party funders. At the outset, it was the High Level Committee to review the institutionalization of Arbitration Mechanism in India that recognized the need for such legislation to make India an “arbitration-friendly jurisdiction”. A parchment safeguard for TPF exists in the form of amendments made by Maharashtra, Karnataka, Gujarat and Madhya Pradesh to the Code of Civil Procedure, 1908 that acknowledged the possibility of litigation funding and set out the situations when such financier may be made a party to the proceedings. Pursuant to this objective, it is recommended that the legislature borrows guidance from the regulatory framework in other jurisdictions. For instance, the Code of Conduct by the Association of Litigation Funders in the United Kingdom, and the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance, 2017 that implemented the Code of Practice for Third Party Funding of Arbitration demonstrate the regulatory framework enacted to provide measures and safeguards in relation to TPF. Moreover, in view of institutional arbitration, for example, the International Chamber of Commerce Rules of Arbitration 2021 via Article 11(7) provides for TPF and requires parties to disclose TPF arrangements to avoid potential conflicts of interest. In conclusion, a two-fold implication presents itself. The decision by the Delhi High Court highlights the significance and application of TPF arrangements in India, and analogously, opens the scope and extent of such arrangements to obscurity. At the first blush, the recognition of TPF, and the nexus between litigation funding and access to justice is a welcome measure. However, the continuation of a regulatory vacuum in India would result in the measure’s transition into an unruly horse, and thus, a consideration for legislative interference. [1] Gautam Mohanty is an Assistant Professor at Jindal Global Law School (JGLS), India and a Ph.D. student researching on Third-Party Funding at Kozminski University, Warsaw, Poland. He is also a Fellow at JGLS Centre for Alternative Dispute Resolution (CADR) and an advocate enrolled at the bar in India. He can be reached at gautam.mohanty1414@gmail.com. Arnav Doshi is a fifth-year student currently pursuing the B.B.A LL.B (Hons.) programme at Jindal Global Law School, Sonipat. He is also a Senior Staff Editor for The Arbitration Workshop.

- Prakhar Singh [1] & Manas Rohilla [2] The conundrum of determination amongst seat, venue, and jurisdiction in arbitration disputes has been the subject of discussion for a long time. Indian courts have attempted to answer it by applying the Shashoua principle, as per which the “venue” of the arbitration is in actuality its “seat”, unless there is a contrary indication or counter-indica. While much has been deliberated upon this issue, what amounts to “contrary indication” remains debated. This piece portrays how the Courts have interpreted “counter-indica” while applying the Shashoua principle. Additionally, it also highlights the significance of the intent and conduct of the parties while establishing the seat of arbitration and the jurisdiction of the court in a given circumstance. Distinguishing Seat from Venue: Jurisdictional Complexity The seat of arbitration specifies the curial law or procedural law that governs the arbitration and decides which court(s) will have supervisory authority over it. In contrast, the “venue” of arbitration only describes the geographical location where such arbitration is to be held and is unrelated to either curial law or court jurisdiction. The term “place of arbitration” is used in Section 20 of the Arbitration and Conciliation Act, 1996 (the “Act”) and is used interchangeably for both seat and venue. This would not render the seat of arbitration unlawful, and the relevant court having territorial jurisdiction over the “seat” would have exclusive supervisory jurisdiction over the arbitration proceedings in question. The first instance to differentiate between the concepts of seat and venue of the arbitration arose in the case of Bharat Aluminium Company (BALCO) v. Kaiser Aluminium Technical Service Inc. ("BALCO"), where the Supreme Court examined the notions of seat and venue and determined that they are distinct. While emphasising party autonomy, the Apex Court provided concurrent supervisory authority to two separate courts, namely the court having jurisdiction over the place of arbitration and the court in whose jurisdiction the cause of action originated. This caused confusion and resulted in inconsistent judgements by different High Courts. Resolving the Debate: Determining contrary indica the parties’ intent The Supreme Court eventually put an end to this discrepancy in BGS SGS SOMA JV v. NHPC Ltd. (“BGS SGS SOMA”). The Court noted that once the parties have designated the seat of arbitration, only the courts governing the seat could have exclusive jurisdiction to govern such arbitration proceedings, and the jurisdiction of all other courts stood ousted. The Court in the same case also examined the concept established in Roger Shashoua v. Mukesh Sharma (Shashoua), upholding the reasoning of the England and Wales High Court on this matter, now known as the Shashoua principle. In Shahoua, the parties chose London as the place of arbitration but not as the seat. Cooke, J. propounded that when parties opt for a venue for arbitration without designating a seat of arbitration, it is safe to assume that the venue is the seat of arbitration if the parties chose a supranational body of rules to govern the arbitration and there is no other indication to the contrary. It is apposite to note that the Constitutional Bench in BALCO had also impliedly adopted the Shashoua principle. Consequently, it looked like this viewpoint was firmly established throughout India. According to the Shashoua principle, when an agreement specifically identifies the venue without any express reference to the seat, in conjunction with a supranational body of laws and no major opposing indica, the inevitable inference is that the venue is actually the seat of arbitration. In the case of BGS SGS SOMA, the Apex Court found that when a clause specifies an arbitration venue and says that the arbitration would take place there, it suggests that the place is indeed the seat. This, together with the absence of any robust contradictory indications that the "venue" is only a place of arbitration and not a seat, further proves that such a place is in fact the seat. As a result, unless otherwise specified, the "venue" of arbitration is the actual seat. The idea has not been accepted by all courts in its absolute sense. In Hardy Exploration, a three-judge bench of the Hon'ble Supreme Court decided that a place may become a seat of arbitration only if something else is added to it as a concomitant. As a result, the Apex Court explicitly said that in order for a venue in an arbitration agreement to become a seat, an additional indicator must be included. It is worth noting that the court's decision contradicts the Shashoua Principle, which was recognised by the same court in BALCO. The question of what amounts to a counter-indication has been deliberated by the Apex Court in Mankastu. The court, deviating from what was held in the BGS SOMA SGS and agreeing to the reasoning as laid in Hardy, observed that it is the intent of the parties that determines whether the venue of arbitration is in actuality its seat. It was further held that the intention of the parties as to the seat should be determined from other clauses in the agreement and the conduct of the parties. Therefore, if the other clauses of the agreement or the conduct of the parties showcase that it is not the intention of the parties to consider the venue in the agreement to be the seat of the party, the same would be considered a counter indicator. In one of the instances before the Apex Court, the respondent contended that Kolkata, being the venue of the arbitration, should also be the seat of the arbitration. The Apex Court held that the parties did not intend for Kolkata to serve as the arbitration's location. The Hon’ble Court observed that the respondent himself sought temporary relief under Section 9 of the A&C Act at the District Court in Muzaffarpur, not a court in Kolkata. Thus, the conduct of the respondent itself showcases that there was no intention to make the venue of the arbitration, i.e., Kolkata, the "seat" of the arbitration. In another case where the arbitration agreement conferred exclusive jurisdiction on the courts in Gurugram, Haryana, and also incorporated New Delhi as the venue of the arbitration, the Court held that the parties' decision to provide the Courts in Gurugram, Haryana, exclusive jurisdiction is a sign that they did not intend for New Delhi to serve as the place of arbitration. Therefore, it was concluded that the conferment of exclusive jurisdiction may act as a counter indica in order to distinguish between the venue and the seat of the arbitration. Similarly, in another instance, where the arbitration agreement conferred exclusive jurisdiction upon the civil courts of Guwahati and considered New Delhi to be the venue of the arbitration, it was observed that the inclusion of the exclusive jurisdiction clause made it clear that the intent of the parties was clear that the seat would be in Guwahati and the civil court(s) at Guwahati would have jurisdiction. Precision in Arbitration Agreements: Navigating the Complexities of Jurisdictional Determination The wording of an arbitration agreement is imperative to conclusively determine the seat of the arbitration proceedings, which would further establish the jurisdiction. There exist various possibilities, subject to the wording of the arbitration agreement, that contemplate the determination of specific jurisdiction, and the same have been reflected below. In the case where both jurisdiction and seat are given in the agreement, the rule as established in the BGS SGS would apply. Therefore, the jurisdiction of the Court with respect to the agreement concerning the seat of the arbitration would prevail over other courts. In cases where both jurisdiction and venue are given in the agreement, the jurisdiction would be contingent on the fact that whether the agreement related to the venue is in actuality an agreement related to the "seat" of the arbitration, the same can be evaluated as per an external indicator that may imply the intent and conduct of the parties. Lastly, in cases where both seat and venue are included in the agreement, the principle stated in the BALCO case that the "seat" of arbitration is the centre of gravity of the arbitration would apply and therefore, the jurisdiction of the Court with respect to the agreement concerning the seat of the arbitration would prevail. Conclusion In the context of arbitration, a counter-indica is any indication towards parties’ intention for not keeping "venue" of the arbitration to be its "seat." While this indication doesn't automatically negate the venue's designation as the seat, it does trigger questions and may ultimately affect whether or not this is upheld. It should be noted that how much weight a counter-indica carries in determining whether a venue operates double-duty as a seat remains unsettled in case law. Essentially, this means courts may have different outcomes despite similar circumstances. Nonetheless, recognizing what constitutes a counter-indica is important for any party utilizing an arbitration agreement. By understanding the factors that are being considered by the courts, parties can make informed decisions about how to draft their arbitration agreements and conduct the same in a harmonious manner. [1] 3rd Year Student at Gujarat National Law University, BSW LL.B Hons. [2] 3rd Year Student at Gujarat National Law University B.A LL.B Hons.

Dalima Pushkarna[1] Introduction The Singapore International Commercial Court (hereinafter “SICC”) in CZT v CZU, dated 28 June 2023, clarified that an Arbitral Tribunal’s discussions/deliberations were confidential in nature, and the principle of confidentiality allows for the disclosure of these documents solely under highly exceptional circumstances. The exception to this rule of confidentiality is that only in extremely exceptional circumstances can these documents be produced. This landmark decision highlights Singapore’s pro-arbitration approach by marking the inaugural instance in which a Singaporean Court has addressed ordering the disclosure of deliberation records. The judgement strongly upholds the principle of confidentiality concerning tribunal deliberations and establishes that any departure from this confidentiality should only occur if the “interests of justice” substantially outweigh the policy considerations supporting confidentiality. Such an exception would necessitate (a) the presence of very serious allegations that attack the integrity of arbitration at its core and (b) a reasonable prospect of these allegations achieving success. This decision of SICC also aligns with the view adopted by the National Courts of other jurisdictions like the USA, UK, and Australia, where an exception to confidentiality is allowed depending on the circumstances of the case and the nature of the allegations made. With the help of this article, the author tries to analyse the confidentiality regime present in India and how India can follow the approach taken by the arbitration hubs of the world and derive certain exceptions to the confidentiality clauses in India. International Legal Framework on the Issue While it can be said that statutes on arbitration are silent on the issue of limitations to the rule of confidentiality, the courts across various jurisdictions have highlighted and developed exceptions to the confidentiality rule through case law jurisprudence. These exceptions are of limited nature, depend on a case-to-case basis and are made when there are serious or grave allegations and not upholding the principle of confidentiality is in the interest of justice. In the case of Vantage Deepwater Co. v Petrobras Am., Inc., the client, represented by Tai-Heng Cheng, was awarded US$622 million along with 15.2% compound interest. However, a dissenting arbitrator raised allegations of unfairness during the proceedings. Subsequently, the party that lost the arbitration attempted to challenge the majority award and requested access to discovery from the dissenting arbitrator and the American Arbitration Association (the entity that conducted the arbitration). The Fifth Circuit, after reviewing the case, upheld the Lower Court’s decision to dismiss the motions for discovery. The Court emphasised that before granting such discovery, it is crucial to assess the asserted need for previously undisclosed information and its potential impact on the arbitral process. Hence, USA Court focused that depending upon the need and the interest of justice, an exception to the confidentiality regime can be made. Similarly, in the English case of P v Q & Ors., a party made an application to remove two arbitrators on the grounds of misconduct. In support of this application, the party sought access to communications exchanged between the arbitrators and the tribunal secretary. Similar to the approach taken by the SICC, the English Commercial Court determined that disclosure would only be ordered if the allegation of misconduct had a reasonable likelihood of success. Moreover, the court considered whether the requested documents were strictly necessary for the fair adjudication of the application and whether it was appropriate, considering all circumstances, to exercise its discretion and grant the disclosure order. Further, in the case of Ali Shipping Corp v Shipyard Trogir, the UK Court laid down exceptions to confidentiality and cases where disclosure can be made: 1. Where the party who originally produced the material expressly or impliedly consents; 2. Disclosure pursuant to an order of the court or with leave of court; 3. Disclosure to the extent reasonably necessary for the protection of a party’s legitimate interests, in particular in establishing or defending a claim against or from a third party; and 4. Disclosure where the interests of justice require it. Furthermore, Part III of the International Arbitration Act (IAA) also outlines the limitations and exceptions to the confidentiality regime in Australia. Section 23C of the IAA provides that parties to arbitral proceedings commenced in reliance on an arbitration agreement must not disclose confidential information unless: the disclosure falls within one of the circumstances outlined in Sec. 23D of the IAA, including that all parties to the proceedings consent to the disclosure; the disclosure is to a professional or other adviser to any of the parties; or if the disclosure is necessary for the purpose of enforcing an arbitral award, and the disclosure is no more than reasonable for that purpose (Sec. 23D); the arbitral tribunal makes an order allowing the disclosure in certain circumstances (Sec. 23E), and no court has made an order prohibiting a party from disclosing confidential information (Sec. 23F); or a court makes an order allowing disclosure in certain circumstances (sect. 23G). Hence, National Courts all over the world have provided some exceptions to the general rule of confidentiality. When the case involves serious allegations, “is in the interest of justice”, and when the case has real prospects of succeeding, then limitations on confidentiality may be imposed. Indian Legal Framework In 2017, a distinguished High-Level Committee chaired by Justice B. N. Srikrishna was established with the purpose of conducting a comprehensive review of the institutionalisation of arbitration mechanisms in India. The Committee’s significant mandate involved proposing various reforms and amendments to enhance the Arbitration and Conciliation Act, 1996. One crucial recommendation by the Committee pertained to the incorporation of the principle of ‘confidentiality’ in arbitration proceedings. Subsequently, in alignment with these recommendations, the Arbitration and Conciliation (Amendment) Act of 2019 was enacted. This amendment introduced Section 42A, which effectively extended the application of the principle of ‘confidentiality’ to encompass arbitration proceedings. Section 42A of the Act herein follows: “Notwithstanding anything contained in any other law for the time being in force, the arbitrator, the arbitral institution, and the parties to the arbitration agreement shall maintain the confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award.” It is important to note that this provision does not incorporate all the suggestions made by the B.N Srikrishna Committee. The Committee had suggested three exceptions to the issue of confidentiality, namely: Disclosure required by a legal duty; Disclosure to protect or enforce a legal right; To enforce or challenge an award before a court or judicial authority. The legislature, while making the amendments and incorporating the recommendations of the Committee, only included one exception to Section 42A that pertains to the disclosure of arbitral awards to facilitate their implementation. Therefore, it can be inferred without trouble that India’s stance on the exceptions and limitations to confidentiality does not align well with the practice of National Courts of other jurisdictions, according to which if the allegations are serious and there is a reasonable prospect of achieving success, then in those cases the exceptions to the confidentiality of the arbitration proceedings are applicable. Apart from deviating from the approach of other jurisdictions, the Indian provision also fails to consider certain instances where the disclosure of arbitration proceedings may be in the interest of the general public, especially in cases where the state is a party to the arbitration. Hence, in these cases, an exception must be made from the generally followed practice, and imposing restrictions on this via Section 42A might amount to violating the Right to Information of the general public. The High Court of Australia, in the case of Esso Australia Resource Ltd. v Plowman, dealt with an issue of violation of the Right to Information in an arbitration dispute where a state-owned entity was one of the parties. The Court recognized that the resolution of such a dispute has broader implications that affect the interests of the general public. Consequently, the Hon’ble High Court concluded that the public’s right to be informed about the affairs of public authorities was paramount in this context, and therefore, the public had a legitimate interest in knowing the intricacies and details of the arbitration proceedings. Conclusion Taking inspiration from its foreign counterparts, India should involve a comprehensive review and amendment of the current legal provisions to align with international practices and strike a balance between confidentiality and transparency. By incorporating exceptions to confidentiality like those recognized in other jurisdictions, India can ensure that in cases of serious allegations or when the public interest is involved, disclosure of arbitration proceedings can be permitted. This will enhance the transparency and accountability of the arbitral process, which is crucial for maintaining public trust in the legal system. However, providing exceptions to confidentiality in arbitration also comes with potential drawbacks. Care must be taken to define these exceptions precisely to prevent misuse or unwarranted disclosure of sensitive information. The interests of justice should be the guiding principle, and disclosure orders should be granted sparingly and only when necessary to protect legal rights or public interests. Additionally, ensuring that any disclosure is limited to the specific information needed and does not compromise the overall confidentiality of the arbitral process is essential. [1] B.A. LL.B. (Hons.) | Candidate of 2026 Dr. RML National Law University, Lucknow.

- Vaibhav Pratap Singh and Vihaan M.N.[1] Introduction Mediation is a popular and effective method of alternative dispute resolution that can help parties find a mutually satisfactory settlement without resorting to litigation. However, one of the challenges of mediation is how to ensure the enforceability of the settlement agreement in case of non-compliance by one of the parties. One possible solution is to convert the mediation settlement agreement into an arbitral award on agreed terms, enforceable under the Arbitration and Conciliation Act, 1996 [hereinafter “the Act”]. However, this option raises several legal and practical issues that need to be addressed. In this article, we examine whether mediated settlements should be considered as awards on agreed terms under Sections 30 and 74 of the Act. We will analyze the arguments for and against this proposition and compare the Indian position with the international and comparative perspective. We will also discuss the implications of this option for the parties, the mediators, and the courts. The Case for Including a Mediation Settlement as an Award on Agreed Terms The Act provides for the enforcement of settlement agreements arising from conciliation proceedings in Section 74. It states that such agreements have the same status and effect as arbitral awards on agreed terms under Section 30. The Act also equates mediation with conciliation [2], as it follows Article 1 of the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, which uses the terms ‘Mediation’ and ‘Conciliation’ interchangeably. This is consistent with the American judicial system [3] and the Supreme Court of India’s ruling in Afcons Infrastructure Ltd. v. Cherian Varkey Construction. Therefore, Part III of the Act may apply both to mediation and conciliation, and the settlement agreements reached through mediation may be brought under the ambit of Sections 73 and 74. These sections require that the settlement agreements are drawn up, written, and signed by the parties and that they are final and binding. Some jurisdictions allow parties to convert their settlement agreements into arbitral awards for the purpose of court enforcement. For example, in Italy, under Section 217 of the Mediation Legislation, parties can jointly request the approval of their agreement by a court, which gives it the same effect as a legally binding judgment. In the US, parties can use Article 1 of the New York Convention to enforce their settlement agreements as arbitral awards. The language used by the parties to express their agreement should be given due respect unless it leads to absurdity as observed in cases like M.O.H. Uduman and Abhijith Paul. ADR is a process that empowers the parties to resolve their disputes outside the court, by choice. The court should not interfere with the legislative intent of promoting ADR on technical grounds and should uphold the enforceability of the agreements that the parties have freely consented to. Both arbitration and mediation in real life are very similar. In private arbitration, the parties themselves appoint an arbitrator, and every procedural step is guided by party autonomy. Arbitral proceedings can even happen in a park, outside the rigors of regular procedural codes and laws. Both arbitration and mediation also share the feature of confidentiality, which protects the parties’ privacy and reputation. By recognizing mediated settlements as consent awards, the court would enable the parties to enjoy the benefits of enforceability and finality as arbitration, which would enhance access to justice, encourage the use of ADR methods, and reduce the burden on the judiciary. The Case Against Including a Mediation Settlement as an Award on Agreed Terms While making such a stretched argument, it is pertinent to remember the challenges of such a recognition. Firstly, an issue with such recognition would be the circumvention of the procedure stipulated under the Act for Conciliation. Section 62 focuses on the commencement of conciliation proceedings. It explicitly stipulates that a written invitation to conciliate must be sent by the conciliating party to another and the conciliation proceedings shall commence when the other party accepts the invitation in writing. The Delhi HC dealing with this problem in Shri Ravi Aggarwal v. Shri Anil Jagota held that to cover a settlement agreement under Part III of the Act, settlement agreements had to be drawn with mutual consent by duly constituted conciliation proceedings. The Code of the Act covers consent awards only through the slightly more formal procedures of conciliation. Secondly, as per Section 30, the arbitral tribunal may use mediation, conciliation, or other procedures at any time during the arbitral proceedings to encourage settlement. This settlement shall be recorded in the form of an arbitral award in agreed terms that shall have the same status and effect as any other arbitral award on the issues of dispute. But here it appears that the constitution of an arbitral tribunal first is sine qua non. Third is the issue of formality. Private mediation is not governed by any statute or legal standards whereas conciliation is regulated by the Act. Settlement agreements cannot be interpreted as arbitral awards if the parties have chosen private mediation, whether through a mediation clause or otherwise. They are enforced only as agreements between parties. The US Court of Appeals in Castro v. Tri Marine Fish Co. LLC declined to regard a mediated settlement as an arbitral award due to the absence of formality essential for a procedure to become arbitration. The main issue here would be the probability of misuse of such recognition by parties in whose favor the balance of power tilts. Finally, anything contained in the Act applies to parties only if there is a valid arbitration clause or agreement. Mediation clauses cannot be construed to be Arbitration clauses. In the Act, conciliation as a process is present in the same act as that for arbitration as a secondary option, which can be utilized by parties going for arbitration itself, as enunciated in Section 30. Therefore, any attempt to circumvent this and bring in mediation within the same ambit might be against the intent of the legislature. The Need for Enforcement Rather Than Mere Contractual Obligation. Keeping the technical aspects aside, there is a need to enforce mediated settlements in the current era of fast-moving business. Mediation and Conciliation are both similar in nature insofar as the nature of dispute resolution is concerned. Essentially, the outcome or result of mediation is recorded in an agreement that is enforceable as a contract in the absence of a law regulating mediation. It can be vitiated by any of the elements vitiating a normal contract such as undue influence or fraud. In a consent award, however, there is an adjudication of issues rather than mere settlement of disputes, done by the parties themselves with the help of a conciliator. When agreements reached out of mediation are already legally enforceable contracts, what is the need to clothe them with enforceability? Let us take an instance where 2 parties are engaged in a dispute over the division of property and they engage in mediation to solve the same. During the course of mediation, the parties agree to give up/ take each other’s property as per their wishes and sign a settlement agreement. In the future, one party fails to give up his property as agreed. Now if the settlement is clothed with enforceability, the aggrieved party can directly go to court and get the award executed just like a normal award passed by an arbitral tribunal. In the absence of the same, the aggrieved party should have to sue the other party for breach of contract or specific performance which is a more tedious and less fruitful path to take. Therefore, recognizing a mediated settlement agreement as an arbitral award on agreed terms can provide much-needed enforceability to day-to-day settlements. Conclusion There are both a possibility and various technical challenges for converting mediated settlements into consent awards. On one hand, this option can enhance the enforceability and finality of mediated settlements, encourage the use of alternative dispute resolution methods, and reduce the burden on the judicial system. On the other hand, this option can also raise several legal and practical issues, such as the validity and scope of consent, the role and status of mediators, the compatibility and consistency with the arbitration law and practice, and the impact on the confidentiality and flexibility of mediation. We have also found that there is no clear and uniform position on this issue in India or internationally. There is a need for the legislature to deal with this issue in the current draft Bill on Mediation. While there is no one-size-fits-all solution to this issue, in India, there is a need to provide recognition to mediated settlements under the Arbitration and Conciliation Act, until the Mediation Act is passed. However, there should be some safeguards, such as a standard process or institution for mediation, a need for a written agreement between the parties consenting to convert the settlement into an award and so on to ensure fairness and protect the parties’ interests. We hope that this article has provided some useful insights and perspectives on this complex and evolving issue. We believe that this issue is important and relevant for developing and promoting mediation as an effective alternative dispute resolution method in India. [1] The authors are currently pursuing B.A LLB (Hons). at National Law University, Jodhpur, and are in their Second Year. [2] Sriram Panchu, Mediation Practice and Law, The path to successful dispute resolution, Appendix 3, 483, LexisNexis Butterworths Wadhwa, (2011) [3] Aditi Bhargava, Conciliation: An Effective Mode of Alternative Dispute Resolution System

- Gaurav Rai [1] and Rakshita Singh [2] Introduction Dispute resolution clauses in Commercial Contracts provide for the dispute to be resolved by arbitration or in a multi-tier dispute resolution format. However, instead of resolving the disputes through arbitration, the parties may choose to amicably settle the dispute by way of a negotiated settlement between themselves. In some cases, the settlement arrived at may only resolve the ongoing dispute between the parties, while the parties continue to be governed by the contract's original terms, including the arbitration clause for any future dispute. However, certain settlements might change the obligations and nature of the contract to such an extent that the parties may agree to execute an agreement or Memorandum of Understanding (“MoU”) in supersession of the Contract already existing between the parties (“Original Contract”). In this article, the authors discuss the issues that can arise in the aforementioned situation. The article shall also consider the steps that can be taken by the parties to protect themselves from the pitfalls of novating or superseding the Original Contract. The discussion in this article will be founded upon the judgment of the Hon’ble High Court of Delhi (“DHC”) in the case of B.L. Kashyap and Sons Limited v. MIST Avenue Private Limited ([2023] SCC OnLine Del 3518), which dealt with a similar fact situation as stated above. Facts prior to the arising of disputes. The Original Contract signed between the parties pertained to a civil structural project in the model of Bill of Quantities (“BOQ”) approximately worth Rs. 229 crores. The Original Contract contained a dispute resolution clause allowing the parties to settle any disputes by way of arbitration. While certain disputes arose between the parties, they were mutually resolved through an MoU by which the Original Contract was changed to a cost-plus contract from the originally agreed BOQ contract. Consequently, certain agreed payments were made to settle the dispute. It is pertinent to note that the MoU did not contain an arbitration clause. Dispute between the Parties and the Findings of the Arbitral Tribunal A dispute arose between the parties and the same was referred to an arbitral tribunal (“Arbitral Tribunal”) for resolution. In the arbitration proceedings, B.L Kashyap and Sons (“Claimant”) sought to raise the claims under the Original Contract between the parties due to the breach of the terms of the MoU entered into between the parties. MIST Avenue Private Limited (“Respondent”), however, raised a preliminary objection regarding the existence of the arbitration clause. Respondent argued that the MoU had superseded the Original Contract and that the Original Contract along with the arbitration clause no longer exist. Accordingly, the disputes between the parties, if any, cannot be raised before an arbitral tribunal as per the provisions of the Original Contract. The issue before the Arbitral Tribunal was whether the arbitration clause in the Original Contract could be revived even after the execution of the MoU. The Arbitral Tribunal, while interpreting the terms of the Original Contract, came to the conclusion that the Original Contract was indeed superseded by the MoU. The Arbitral Tribunal held that the MoU had in fact novated the Original Contract, and thereby the tribunal does not have jurisdiction to try the present case as per the arbitration clause contained in the Original Contract. While giving the aforesaid finding, the Arbitral Tribunal relied on the judgments of Young Achievers v. IMS learning Resources Pvt. Ltd.[2013] 10 SCC 535. & Ansal Housing and Construction Ltd. v. Samyak Projects Pvt. Ltd.[2018] SCC OnLine Del 1286. It was stated by the Arbitral Tribunal that the language of the MoU made it clear that the Original Contract was forthwith superseded on the execution of the MoU. Further, the supersession was not contingent on successfully fulfilling the terms of the MoU, as sought to be relied on by the Claimant. The Case before the DHC under Section 34 of The Arbitration and Conciliation Act, 1996 Aggrieved by the Award of the Arbitral Tribunal, the Claimant challenged the same under Section 34 of the Arbitration and Conciliation Act, 1996 (“Act, 1996”) before the DHC. B.L Kashyap and Sons (“Petitioner / Claimant”) submitted that the Award passed by the Arbitral Tribunal was arbitrary and perverse and therefore manifestly illegal. It contended that execution of the MoU on a cost-plus basis was a conditional settlement, and the Respondent had breached the same. Therefore, the Petitioner was entitled to settle all dues as per the Original Contract. The Petitioner / Claimant contended before the DHC that the MoU would stand satisfied only if conditions under the MoU were complied with in its entirety. Since the same was not done, the arbitration proceedings were therefore correctly invoked under the Original Contract and the presence of a subsequent MoU could not bar such proceedings. The Petitioner / Claimant further submitted that the Original Contract allowed the Petitioner to file any legal measures for this purpose, and accordingly, the claims of the Petitioner before the Arbitral Tribunal were under the Original Contract and not under the MoU. Basis the aforesaid, the Arbitral Tribunal should not have rejected the Petitioner’s claims for want of jurisdiction. The Claimant relied on the judgments in Union of India v. Kishorilal Gupta & Bros AIR 1959 SC 1362 & Lata Construction v. Rameshchandra Ramniklal Shah (2000) 1 SCC 586 for its arguments. The Respondent, on the other hand, argued that the view taken by the Arbitral Tribunal was a correct and plausible one. The Respondent submitted that upon a proper reading of the MoU, it can be inferred that parties arrived at a mutual settlement by way of the MoU. Therefore, the Original Contract stood ‘cancelled or closed’, and accordingly, the Original Contract only allowed the Claimant to raise claims contained in it and not revive the arbitration clause. Therefore, the Claimant cannot invoke the arbitration proceedings as per the clause contained in the Original Contract for a breach of the MoU. The Respondent relied on the judgments of Nathani Steel Ltd. v. Associated Constructions [1995] Supp (3) SCC 324. & Damodar Valley Corporation v. K.K. Kar [1974] 1 SCC 141. in support of its submissions. Decision of the DHC Before rendering its decision, DHC outlined the several undisputed principles of law formulated on the basis of various authorities cited by the parties. They were as follows: a. An arbitration clause in a contract which is void ab initio cannot be enforced since the contract that contains such a clause itself was never enforceable, or legally came into existence; b. A contract which is validly executed can still be extinguished by a subsequent agreement between the parties; c. If the original contract remains in existence, then to deal with issues such as repudiation, breach, etc. arising in relation to that contract, the arbitration clause would continue to operate for those purposes; and d. In case of a new agreement and wholesale novation of the previous contract, the arbitration clause in such previous agreement will stand extinguished due to the new contract coming into existence. Relying on the aforesaid principles derived from the authorities cited by the parties, the DHC concluded that the arbitration clause would not extend to the subsequent MoU and the non-exercise of jurisdiction by the arbitral tribunal was a plausible interpretation of the contract between the parties. The DHC refused to interfere in the matter. The DHC also underlined the fact that courts’ interference with the tribunal’s award can only be in cases where there seems to be a patent illegality. If the award granted by the arbitrator is not even one of the plausible interpretations and outcomes of the contract, then the award can be challenged on grounds of being arbitrary or patently illegal. In support of the aforesaid finding, the DHC relied on Sangyong Engg. & Construction Co. Ltd. v. NHAI [2019] 15 SCC 13. The arbitral award only has to pass the plausibility test, and consequently, it is upon the arbitrator to proceed on that view and grant the award. In support of the aforesaid finding the DHC relied on UHL Power Co. Ltd. v. State of H.P. [2022] 4 SCC 116. Therefore, the DHC held that the impugned Award was not patently illegal and needed no interference. The petition was accordingly dismissed. The DHC clarified that no observations were being made on the merits of the dispute, as the arbitral tribunal has only stated that it does not have jurisdiction to adjudicate the disputes, and the judgment of the DHC was also limited to this aspect of the award. Analysis and Suggestions - Incorporation of Arbitration Clauses in Subsequent Contracts The Act 1996 provides for what might be called a solution to such situations. However, the same does not come without its fallacies and loopholes. Section 7(5) of the Act,1996 provides for an arbitration clause to be incorporated or extended to subsequent contracts by referring to a contract which initially contains such clause. However, there is a fundamental difference between reference to a contract and incorporation. The former includes a specific part of the contract which the parties must have intended to include in subsequent agreements whereas in the latter case, the subsequent contract is incorporated in its entirety. In such cases, the arbitration clause will also be incorporated and applicable to the new agreement. Then again, the incorporation of the arbitration clause itself is based on the consent of the parties, and in the absence of consent, nothing can be held to be a part of the agreement by virtue of implication. However, in contracts where both parties are the same (single contracts), an arbitration clause can be extended to a new contract given that the parties consented to it on the basis of the reasonability test. Notwithstanding the aforesaid, in cases where even one party is different (double contracts), such incorporation cannot be made, except in cases where a contract is a standard contract and the practice of a party is standard and well known. In the above mentioned solutions, the idea remains the same: if the arbitration clause, is to be extended to the subsequent agreement between the parties, it shall be based on consent of the parties or on the test that a reasonable man would have expected such a term to be part of the contract impliedly. i.e. without having to be written down specifically.[3] However, to avoid the complications of referring to previous arbitration clauses, it is advisable for the parties, who are making an agreement in supersession of the previous agreement, to include a new arbitration clause in the new contract and not rely on the principle of incorporation of contracts. With the growing acceptance of alternate dispute resolution mechanisms such as arbitration, mediation, or negotiated settlement, it is only prudent that any settlement arrived at between the parties be tactfully outlined in a settlement agreement. With some foresight, parties can avoid any complications at a later stage.[4] In the experience of the authors, there have been many cases where the absence of a well-drafted arbitration clause has led to conflicts and complications during dispute settlement, as was in the case of B.L. Kashyap and Sons v. MIST Avenue Private Ltd.. Thus, it is evident that a clear and well-drafted arbitration clause would significantly help in avoiding the situations that occurred in the case as discussed above. [1] Gaurav Rai is an Advocate based in Delhi and a Senior Associate at Legafin Law Associates LLP. He is also the Editor of The Arbitration Workshop Blog. [2] Rakshita Singh is a Second-Year law student, currently pursuing her BA.LLB(Hons.) degree from Institute of Law, Nirma University. [3] See generally Kartikey Sanjeev Bhalotia, ‘“Incorporation by Reference”: A Need to Reconsider Standards?’ (Arbitration Workshop, 7 July 2020) accessed 28 June 2023. [4] See generally Anish Jaipuriar and others, ‘Agreements for Settlement and Release in India: Legal Position and Essential Elements’ AKS Partners - Monthly Newsletter October 2021 .

Shaswat Kashyap & Snigdha Dash[1] The noteworthy decision by a three-judge bench of the Supreme Court in N.N. Global 2021, diverted from previous judgments in SMS Tea Estates, Garware Wall Ropes, and Vidya Drolia. It was stated in the earlier judgments that arbitration agreements without the appropriate stamping could not be legally enforced. However, in the 2021 ruling, the Supreme Court adopted a pro-arbitration position and declared that even arbitration agreements that were not stamped nor had insufficient stamping could still be directed to arbitration. In the N.N. Global 2021 case, the Supreme Court paid reliance on the UNCITRAL Model Law and the doctrine of severability, which was introduced in the Heyman v. Darwins case. It dismissed the conclusions reached in the SMS Tea and Garware, and stated that the absence of stamp duty payment does not render the arbitration agreement null and void. The Garware judgment attempted to harmonize the Indian Stamp Act, 1899 with the Arbitration and Conciliation Act, 1996 by prescribing a timeline for resolving issues related to stamping, making a distinction between the “validity” and “existence” of an arbitration agreement, and emphasizing that the Stamp Act applies to the agreement or conveyance as a whole. The court in N.N. Global 2021 dismissed Garware’s perspective as flawed. The court stressed the importance of disassociating the fate of the arbitration agreement that lies underneath the contract. Additionally, it ruled that the non-payment or insufficient payment of stamp duty could be rectified as a ‘correctable error’. However, the court recognized that Vidya Drolia had upheld the decisions made in Garware, and both cases were decided by benches of equal strength. In light of this conflicting situation, the Court decided to refer the matter to a Constitutional Bench comprising five judges in the N.N. Global 2021 case. The purpose of this referral was to resolve the disagreement and reconcile the differing opinions between Vidya Drolia and N.N. Global 2021, which had created a conflict in the interpretation of the law. In the wake of the uncertainty surrounding unstamped arbitration agreements, the Constitution Bench of the Honorable Supreme Court of India delivered a significant judgment in the N.N. Global 2023 case, aiming to bring clarity to the situation. This ruling clarified the enforceability of arbitration agreements that lacked proper stamping or had insufficient stamping. With a majority decision of 3:2, the court established that an arbitration agreement must adhere to the stamping requirements outlined in the Indian Stamp Act, 1899. Failure to meet these requirements renders the agreement legally nonexistent and unenforceable. Foreign Legal Framework Article 23 of the UNCITRAL Arbitration Rules, 2021, states that the invalidity of the main agreement does not automatically render the arbitration clause invalid. This principle is commonly referred to as the "severability or separability of the arbitration clause. Judge Stephen Schwebel from the International Court of Justice explains that the concept of an “arbitration agreement” itself implies the existence of a separate or detachable agreement, which can be separated from the main agreement if necessary. The principle of separability is of great significance and has been acknowledged by the International Chamber of Commerce (ICC) in its arbitration rules. The ICC initially recognized the concept of separability in its 1955 Arbitration Rules and has further reinforced it through the amended ICC Rules of 2012. Notably, Article 6(8) of the ICC Rules explicitly promotes the principle of separability, highlighting its importance in the arbitration process. United Kingdom: The Court of Appeal’s decision in Harbour Assurance v. Kansa General International Insurance supports the notion that the validity of an arbitration agreement can be maintained even if the underlying contract is deemed invalid, as long as the arbitration clause itself is not directly challenged. An arbitration agreement must be in writing to be enforceable and valid, but there is no requirement for the agreement to be signed or stamped. Pakistan: The issue of enforceability of unstamped arbitration agreements has been settled in Pakistan, as established in the Supreme Court judgment of Union Insurance Company of Pakistan v Hafiz Muhammad Siddique. In this case, the Supreme Court through Dorab Patel emphasized the language of Section 35 of the Stamp Act, 1899, and reiterated that expanding the interpretation of the section would go against established principles. Patel further explained that the objective of the Stamp Act is to preserve public revenue, and the absence of a stamp on the document does not affect the validity of any contract it contains. However, it renders the document inadmissible as evidence. This ruling overturned the Lahore High Court’s decision and clarified that while the non-stamping of an arbitration agreement makes it defective per se, it does not render it invalid in the eyes of the law. China: China has a ruling similar to that of Pakistan concerning the validity of unstamped arbitration agreements. This ruling was established in the case of Luck Treat Ltd. v. Shenzhen Zhong Yuan Cheng Commercial Investment Co., Ltd. In this particular case, even though one party failed to sign or stamp the main contract, the court affirmed the legitimacy and enforceability of the arbitration clause. The court emphasized the principle of separability, which ensures that the arbitration agreement is valid and independent of the main contract. Reference was made to Article 10 of the Interpretation of the Supreme People’s Court Concerning Some Issues on the Application of the Arbitration Law, which explicitly states that the absence of a main contract does not impact the validity of the arbitration agreement, relying on the separability clause. Furthermore, Article 19 of the Arbitration Law of the People’s Republic of China underscores that the existence of an arbitration agreement remains unaffected and separate from any modifications, cancellations, terminations, or invalidations of the underlying contract. Other Jurisdictions: Additionally, Section 178(3) of the Swiss Federal Statute on Private International Law (Swiss PIL) affirms that the validity of an arbitration agreement cannot be disputed solely based on the potential invalidity of the underlying contract. Legal Implications & Concluding Remarks Indian courts, through several rulings, have consistently supported the notion that non-payment of stamp duty is considered a “curable defect.” This means that an unstamped document can still be valid and enforceable once the stamp duty is paid. By allowing the defect to be rectified through the payment of a penalty, it is argued that an unstamped instrument cannot be deemed non-existent in the eyes of the law. Moreover, the addition of Section 11(6A) to the 1996 Act in 2015 aimed to simplify the pre-arbitration stage by limiting the court’s role in verifying the continuance of an arbitration agreement. This provision sought to expedite the arbitration process and reduce unnecessary court interference. However, the recent judgment may lead to an increase in disputes over the validity of arbitration agreements. This could result in delays in resolving disputes as parties now have the opportunity to challenge the enforceability of such agreements, leading to additional legal proceedings. The interpretation of this provision is closely tied to crucial arbitration principles such as the doctrine of severability, minimal judicial intervention, and kompetenz-kompetenz. For instance, the interpretation of the seemingly innocuous phrase ‘existence’ in Section 11(6A) of the Arbitration & Conciliation Act, 1996 has sparked intense debates among legal scholars and experts. The debate stems from differing opinions among the Supreme Court benches. Some argue that the court’s examination should be limited to the mere factum of the existence of an arbitration agreement, leaving issues of scope, validity, and enforceability to the arbitral tribunal to decide under Section 16(1) of the Act. This interpretation aims to minimize the court's intervention and aligns with the legislative policy of the 2015 amendment. However, others argue that the term “existence” should be understood in a contextualized manner, taking into account the statutory norms that determine the nature of an arbitration agreement. It emphasized on the existence of an arbitration clause being contingent on enforceability and adherence to statutory requirements. The amendment to Section 11(6A) focuses the court’s inquiry solely on determining whether an arbitration agreement exists, without disregarding the need for appropriate stamping or the enforceability of the entire agreement. The interpretation of the term "existence" in Section 11(6A) plays a crucial role in deciding the enforceability and relevance of an arbitration clause within a broader agreement. Internationally, the principle of separability, recognized by the UNCITRAL Model Law and various arbitration institutions such as the ICC, holds significant importance. It emphasizes that the arbitration agreement is a separate and distinct entity from the parent contract and can be enforced independently, even if the main contract is invalidated. This principle has been acknowledged in different jurisdictions, including China, the United Kingdom, the United States, France, and Switzerland. The Supreme Court ruling has introduced an extra level of scrutiny during the arbitrator appointment process, deviating from the original legislative intent, in order to assess the legality and existence of the arbitration agreement. The decision has the potential to significantly prolong the arbitration process from the very beginning, causing increased delays. [1] Shaswat Kashyap, a 3rd-year B.A., LL.B. (Hons.) student at Gujarat National Law University, and Snigdha Dash, a 3rd-year B.A., LL.B. (Hons.) student at National Law University, Odisha.

Dhanya Jha[1] 1. Introduction The ordeal of the judiciary while adjudicating proceedings under Section 11 of the Arbitration and Conciliation Act, 1996 (“the Act”) are conspicuous, courtesy of the perplexing disparity in the interpretations given by the courts over the past years. Judicial overreach while passing an Order under Section 11 of the Act has always been a matter of interminable scrutiny as it creates an impediment in the arbitration proceeding, marking a diversion from the pro-arbitration approach. Section 11 deals with the appointment of an arbitrator and Clause 2 of the same empowers the parties to agree upon a procedure for appointment of an arbitrator. In a scenario wherein the parties are unable to choose an arbitrator or any disagreement on such an aspect arises, either one of the parties may approach the appropriate Court for such an appointment. However, an interesting question that arises at this stage is whether the Court, while appointing the arbitrator, will delve into examining the validity of an arbitration agreement, or limit itself to the mere existence of an arbitration agreement. Herein, Section 11(6A) comes into play which envisages that the courts while appointing an arbitrator should confine their examination to the “existence of an arbitration agreement.” Sub-section 6A was added to Section 11 through the Arbitration and Conciliation (Amendment) Act, 2015. Prior to the insertion of Section 11(6A), a far-reaching authority was exercised by the courts while appointing an arbitrator as preliminary aspects such as jurisdiction, maintainability, stale claims, etc. were adjudicated upon by the courts. To constrict and define the court’s jurisdiction while appointing an arbitrator, the 246th Law Commission Report recommended the insertion of Section 11(6A). Now the issue at hand is whether the legislation has laid down a succinct phraseology for an examination under Section 11 (6A) or should the judicial examination encompass aspects beyond the mere existence of the arbitration agreement. This article analyses the trajectory of interpretations imparted to Section 11 by the courts to answer the above question. The article, while acknowledging the necessity of a preliminary examination which extends beyond the examination mere existence of an arbitration agreement, proposes an adequate balance between judicial inquiry and the doctrine of Kompetenz-Kompetenz to preserve the integrity of the process of arbitration and not stifle it at the very beginning. 2. Tracing the Varied Interpretations: The Judicial Dissection of Section 11 While interpreting Section 11(6A), one might construe that the provision envisages that the courts must examine the arbitration agreement solely with respect to the bare factum of its existence. The case of Duro Felguera, S.A. v. Gangavaram Port Ltd. validates such an understanding as in this case, the apex Court ruled that post the 2015 amendment, the courts only need to see “whether an arbitration agreement exists - nothing more, nothingless”. However, such an understanding is flawed which is why the Duro Felguera ratio was overruled in United India Insurance Co. Ltd. v. Hyundai Engineering, on the grounds that it was a “general observation about the effect of the amended provision and not specific to the issue”. Therefore, we observe that the mere factum of the existence of an arbitration clause, as construed from the bare reading of Section 11(6A), is not a sufficient condition for appointing an arbitrator. The same is done for the simple reason that for the appointment of an arbitrator, it is essential for the dispute to be ‘arbitrable’ i.e., to fall under the ambit of arbitrability. Before appointing an arbitrator under Section 11, it is crucial for the courts to determine if the parties have submitted their dispute to arbitration or if the arbitration clause in the contract in actuality covers the particular dispute which has arisen between the parties. Therefore, the determination of arbitrability would implicit an inquiry into the scope of the arbitration clause. Thus, examining the scope of the arbitration clause falls within the extent of examination as intended by the provision. Now that it is undisputed that an inquiry under Section 11 extends beyond the mere fact of the existence of an arbitration agreement to the scope, we look into whether it encompasses a determination of enforceability too. The discourse on the enforceability of an arbitration agreement was sparked by the judgments of SMS Tea Estates Pvt. Ltd v. M/s Chandmari Tea Co Pvt. Ltd (“SMS”) and Garware Wall Ropes Ltd. v. Coastal Marine Constructions (“Garware”) wherein courts determined the fate of the arbitration clause in an unstamped contract. In SMS and Garware, the court held that since an unstamped and unregistered contract was inadmissible and unenforceable, “an arbitration clause in (such) an agreement is not enforceable by law”. These rulings were further strengthened by a three-judge bench in the landmark judgment of Vidya Drolia v. Durga Trading Corporation (“Drolia”) and the recent N.N. Global Mercantile judgment. The N.N. Global Mercantile judgement not only dealt with the issue of enforceability of an arbitration clause in an allegedly non-enforceable contract but also the conflict surrounding the extent of inquiry by the courts at a pre-arbitral stage. Our analysis does not deal with the former rather it focuses on whether the court under Section 11 should extend its examination to look into a claim of enforceability. In view of the extensive analysis of the enforceability of an arbitration agreement under Section 11 done by the apex court, we observe that the mere existence or scope of an arbitration agreement is not enough if it is found to be unenforceable at the outset. Therefore, it is crucial to determine the enforceability of the arbitration agreement and not leave such a determination to the arbitral tribunal. 3. Exploring the Extent of Court Inquiry under Section 11 Through the above precedents, we deduce that it is important for the courts to look into the existence, scope and enforceability of the arbitration agreement and the same would not be an encroachment into the jurisdictional territory of the arbitration tribunal or a violation of the doctrine of Kompetenz-Kompetenz. As analyzed through the above precedents an examination of the existence of an arbitration agreement under Section 11(6A) would encompass the following three limbs: a. The bare factum of the existence of an arbitration agreement; b. The scope of the arbitration agreement with respect to the dispute which has arisen between the parties and; c. The validity or enforceability of the arbitration agreement. To further substantiate the above delineation, the legislative intent can be looked into. The Law Commission Report which recommended the insertion of sub-section 6A stated that an appointment “shall not be made only if the High Court finds that the arbitration agreement does not exist or is null and void.” Even though the amended section does not contain “null and void”, the intent of the legislation is clear i.e., to empower the court to conduct a preliminary inquiry. This preliminary inquiry is inclusive of the above three ambits as analyzed through the above precedents. The courts cannot function mechanically and appoint an arbitrator on the mere factum of the existence of an arbitration agreement especially when the party refusing to appoint an arbitrator raises a concern regarding the non-arbitrability of a dispute. Hence, it becomes important for the court to deal with such an issue at the primary stage itself so that the procedure under Section 11 is in accordance with the principle of Audi Alteram Partem. Moreover, the appointment of an arbitrator in a case where the arbitration agreement is disputed on its validity would not be legally sound. The courts ought to adhere to the fundamentals of the Law of Contracts i.e., Section 2(g) and 2(h) while passing an order under Section 11 of the Act. In a scenario wherein the arbitration agreement is found to be void, it would not be enforceable, and the appointment of an arbitrator would be unsound. Therefore, to avoid this the courts must conduct a prima facie examination which is not solely limited to the mere existence of an arbitration agreement. Additionally, the report envisioned the same standard for determining the extent and type of judicial intervention for Section 11 of the Act as applies in the context of Sections 8 and 45 of the Act. The scope and nature of judicial intervention should not change when a party approaches the court for the appointment of an arbitrator or moves a proceeding before a judicial authority in the face of such an arbitration agreement. Therefore, confining the inquiry of the court to mere existence would be inconsistent with Sections 8 and 45 of the Act which empowers the court to go beyond the existence of an arbitration agreement and find whether the arbitration agreement is valid or if it is ‘null and void, inoperative or incapable of being performed.’ Thus, pre-arbitrability of a dispute is a condition for passing an order under Section 11 and the existence inquiry under Section 11(6A) should not be limited to a blind confirmation of the factual existence of the agreement but also issues of enforceability i.e., validity, capacity, and the existence of any grounds for setting aside the agreement etc. While the amended section states that an examination of the ‘existence’ of an arbitration agreement is to be done, the courts nonetheless, have looked beyond the mere factum of existence to determine the arbitrability of disputes and the enforceability of arbitration clauses. 4. Building Boundaries: Preserving the Institution of Arbitration in India Section 11(6A) is important as it serves as a gatekeeping mechanism to ensure that only disputes that are covered by a valid arbitration agreement are referred to arbitration. Although a prima facie examination of arbitrability is mandatory while appointing an arbitrator, it is also important to define and limit the boundaries of judicial intervention so that the courts do not intrude on the jurisdiction of arbitral tribunals and violate the doctrine of Kompetenz-Kompetenz. The legislature can analyze the precedents to delineate the aspects which the courts are required to examine before passing an Order under Section 11. Such formalization by defining the ambit of judicial intervention of courts will not only ensure that the courts do not exceed their jurisdiction but also empower the arbitral tribunal to adjudicate on the issues over which it has the rightful jurisdiction. The author proposes that these limitations must be encoded unambiguously in the provision itself so that there is little room for diverse, conflicting interpretations that the court peruses to stampede on the authority of the arbitral tribunals. For the purpose of the same, Section 11(6A) can be amended insofar as to add an explanation to the phrase “examination of the existence of an arbitration agreement”. This explanation should lay down the criteria which are covered within the purview of the existence of an arbitration agreement. This would promote the doctrine of Kometenz-Kompetenz which would lead to the ultimate preservation of the institute of arbitration. It is crucial to create such a balance so that the courts do not transcend back to the pre-2015 amendment era wherein the courts overstepped their judicial limits. With that being said, the author disapproves the prospective revocation of Section 11(6A) by the 2019 Amendment Act and the changes brought about by it to Section 11(6). This introduces a completely different dimension to the already perplexing Section 11. The newly amended provision allows arbitrators to be appointed by an “arbitral institution designated by the Supreme Court...or by the High Court”. This is an extreme legislative step as it outrightly terminates the role of the judiciary thus, creating an imbalance of jurisdictional power. Judicial supervision is very crucial as it ensures that the arbitration process is conducted in accordance with the law. Additionally, the amended Act does not prescribe the scope of inquiry required to be done by arbitral tribunals while appointing an arbitrator. Even though the amendment has not yet been effectuated, concerns have been raised about the intricacies of such an appointment by the tribunals. This is because there are no comprehensive rules laid down in the newly amended act for the procedure of such an appointment. Therefore, there is a need to amend the current provision for more clarity and direction to the court rather than what is proposed by the 2019 Amendment Act. 5. Conclusion The author proposes that instead of eliminating the role of the judiciary altogether, the boundaries of jurisdiction of the courts should be defined and a comprehensive layout must be given to the judiciary so that a consistent and uniform approach towards the interpretation of Section 11(6A) is formed. The same, as suggested above, can be done by adding an explanation to the provision for providing the requisite clarity to the courts. The same will resultantly make the Indian judiciary follow a consistent and pro-arbitration approach. Further, in a scenario where the courts in a prima facie examination are unable to reach a conclusion, the final determination should be left to the arbitral tribunal. By allowing the final determination to be made by the arbitral tribunal in cases where the courts are unable to reach a conclusion, judicial oversight will be counter-balanced. The legislators ought to step in and resolve the interpretational conundrum and succinctly enlist the scope of judicial intervention in order to aid the courts and pave a pro-arbitration path. [1] 2nd Year, B.A. LL.B.(Hons.) Rajiv Gandhi National University of Law, Punjab.