Arbitration Cases Monthly Round-up: July 2022

Supreme Court: Court Under Section 34,37 Arbitration Act Cannot Modify An Award ; It Can Only Remand: Supreme Court Case Title: National Highways Authority of India versus P. Nagaraju @ Cheluvaiah Citation: 2022 LiveLaw (SC) 584 The Supreme Court observed that, under Section 34 or 37 of Arbitration and Conciliation Act, a Court cannot modify the award passed by the Arbitrator. The option would be to set aside the award and remand the matter, the bench comprising Justices Indira Banerjee and AS Bopanna said. Counter-Claim Cannot Be Rejected Merely Because The Claims Thereunder Were Not Notified At The Pre-Arbitral Stage: Supreme Court Case Title: NHAI versus Transstroy (India) Limited Citation: 2022 LiveLaw (SC) 586 The Supreme Court has held that the counter-claim of a party cannot be dismissed merely because the claims were not notified before invoking the arbitration. The Division Bench of Justice M.R. Shah and Justice Sanjiv Khanna held that there is a difference between the word "Claim" and "Dispute", where the former may be a one-sided thing while the latter by its definition has two sides. It observed that once the conciliation failed, the entire gamut including the counter-claim/set off would form the subject matter of arbitration. There Cannot Be Two Arbitration Proceedings With Respect To Same Contract/Transaction: Supreme Court Case Title: M/S Tantia Constructions Limited v. Union Of India Citation: 2022 LiveLaw (SC) 624 Observing that it is of the "firm opinion that there cannot be two arbitration proceedings with respect to the same contract/transaction", the Supreme Court stated that when a dispute has earlier been referred to arbitration and an award was passed on the claims made, then it is "rightful" to refuse to refer to arbitration- in exercise of Section 11(6) of the 1996 Arbitration Act- a fresh arbitration proceeding sought to be initiated with respect to some further claims. Section11(6A) Arbitration Act Does Not Prevent Courts From Considering Issue Of Arbitrability: Supreme Court Case Title: Indian Oil Corporation Limited vs NCC Limited Citation: 2022 LiveLaw (SC) 616 Despite the insertion of Section 11(6A) in the Arbitration and Conciliation Act 1996, the Courts are not denuded of the power to examine the issue of non-arbitrability and jurisdiction at the stage of considering application of appointment of arbitrators under Section 11, held the Supreme Court recently. Court While Deciding 'Section 11' Application Seeking Appointment Of Arbitrator Can Consider Whether Dispute Falls Within 'Excepted Clause' : Supreme Court Case Title: Indian Oil Corporation Limited vs NCC Limited Citation: 2022 LiveLaw (SC) 616 The Supreme Court held that, at the stage of deciding application for appointment of arbitrator, a Court can consider whether the dispute falls within the excepted clause. The Court observed that the question of jurisdiction and non-arbitrability can be considered by a Court at the stage of deciding an application under Section 11 of Arbitration and Conciliation Act if the facts are very clear and glaring. High Courts: Andhra Pradesh High Court: The Arbitration Clause Contained In A Manual Issued By The Government As A Generic Guideline Is Not Binding: Andhra Pradesh High Court Case Title: TBS India Telematic and Biomedical Services Pvt. Ltd. versus Commissioner of Health and Family Welfare The Andhra Pradesh High Court Bench of Chief Justice Prashant Kumar Mishra has held that arbitration clause contained in a government manual as generic guidelines cannot be invoked by the parties. The Court also observed that there cannot be an arbitration clause in a sub-contract, or in a separate document when there is no binding agreement between the parties in the first place. Bombay High Court: Invocation Of Arbitration Has To Be In Clear Terms;Merely Stating Claims Would Not Suffice: Bombay High Court Case Title: M/s. D.P. Construction versus M/s. Vishvaraj Environment Pvt. Ltd. The Bombay High Court has ruled that invocation of arbitration has to be in clear terms, as specified in Section 21 of the Arbitration and Conciliation Act, 1996 (A&C Act), and that a mere reference to the claims and disputes sought to be raised by a party, and the existence of an arbitration clause, would not itself mean that arbitration has been invoked by such a party. The Single Bench of Justice Manish Pitale observed that Section 21 of the A&C Act specifically refers to a request for the dispute to be referred to arbitration as regards the commencement of the arbitral proceedings. Hence, the Court ruled that unless there is a request by a party that the dispute is to be referred to arbitration, merely stating the claims and disputes in a notice would not suffice.Place Designated As The "Venue" Of Arbitration In Its Entirety, Is The "Seat"...

Arbitration Cases Monthly Round-up: July 2022

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