General Provisions of Part I: Sections 3 to 6

Four short sections at the opening of Part I do work out of all proportion to their length. Section 5 confines the court to the occasions the Part itself names, and is the provision on which the autonomy of the arbitral process rests. Section 4 deems a party to have waived an objection he could have taken but did not. Section 3 fixes when a written communication is received, which decides when an arbitration commences and when the period for challenging an award begins to run. Section 6 permits administrative assistance by an institution or person without converting an ad hoc reference into an institutional one.

1. Section 5: Extent of Judicial Intervention

The provision corresponds to Article 5 of the UNCITRAL Model Law and gives effect to one of the objects stated in the Statement of Objects and Reasons, namely to minimise the supervisory role of courts in the arbitral process. Three features of the drafting matter. The non obstante clause displaces any other law that might otherwise supply a power of intervention. The expression judicial authority is wider than the expression court defined in Section 2(1)(e), and covers tribunals and other authorities before which a matter covered by an arbitration agreement may be brought, which is why Section 8 also speaks of a judicial authority. And the prohibition is confined to matters governed by Part I, so it does not affect the enforcement of foreign awards under Part II, which has its own scheme.

The occasions on which Part I permits the court to act, and what remains excluded

1.1 The permitted occasions

Part I names the points at which the court may act: reference of the parties to arbitration under Section 8, interim measures under Section 9, appointment of arbitrators under Section 11, decision on a challenge to the continuance of a mandate under Section 14(2), assistance in taking evidence under Section 27, setting aside an award under Section 34, enforcement under Section 36, appeals under Section 37, and the incidental provisions in Sections 39(2) on the lien of the tribunal over the award and 43(3) on extension of the period of limitation. Outside these, the court has no role, and an application which does not fall within one of them is not maintainable.

1.2 Section 5 and the writ jurisdiction

An ordinary statute cannot take away the jurisdiction conferred on the High Courts by Articles 226 and 227 of the Constitution, and Section 5 does not purport to. What the courts have done is to hold that the existence of a self-contained code, which supplies a remedy for every grievance capable of being raised, makes the exercise of that jurisdiction inappropriate save in exceptional cases.

2. Section 4: Waiver of the Right to Object

The section corresponds to Article 4 of the Model Law and rests on an obvious proposition: a party may not keep an objection in reserve, take his chance on the outcome, and produce the objection only if he loses. Three elements must be present. There must be non-compliance with a derogable provision of Part I or with a requirement of the arbitration agreement. The party must know of the non-compliance. And he must proceed with the arbitration without stating his objection, either without undue delay or within any period the Act prescribes.

The line between provisions that conduct can waive and those it cannot

The limiting words are the key to the section. It applies only to provisions from which the parties may derogate, which excludes the mandatory provisions of the Part. The duty of equal treatment and the obligation to give each party a full opportunity to present his case under Section 18 are not derogable, and no course of conduct waives them. The ineligibility created by Section 12(5) read with the Seventh Schedule is waivable, but only by an express agreement in writing made after the dispute has arisen, which the proviso requires in terms; participation without protest is not enough. Arbitrability and the public policy of India are not within the parties' disposition at all.

Section 16 supplies the time limits for the most important objections. A plea that the tribunal has no jurisdiction must be raised not later than the submission of the statement of defence, and a party is not precluded from raising it merely because he participated in the appointment of an arbitrator. A plea that the tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope is raised. The tribunal may admit a later plea if it considers the delay justified. A plea not taken in time, and not admitted, is lost, and the point cannot be resurrected under Section 34.

3. Section 3: Receipt of Written Communications

The section is subject to the agreement of the parties, so a clause providing for service by electronic mail at a named address displaces it. Where it applies, it creates a deeming provision in two stages: actual delivery at one of the three places named, failing which delivery at the last known address by registered post or by another means that records the attempt. The reasonable inquiry required by clause (b) is a condition of resorting to the second stage, and a party who has made no inquiry cannot rely on the deeming provision.

Two dates in the life of an arbitration are fixed by this section. Under Section 21, unless otherwise agreed, arbitral proceedings commence on the date on which a request that the dispute be referred to arbitration is received by the respondent, which governs limitation under Section 43 and the application of amendments to the Act. Under Section 31(5) a signed copy of the award is to be delivered to each party, and the period of three months for an application under Section 34(3) runs from the date on which the party making the application received the award.

4. Section 6: Administrative Assistance

The provision allows the machinery of an institution to be used without the reference becoming an institutional arbitration. Administrative assistance in this sense covers the maintenance of a record, the receipt and circulation of pleadings, the provision of hearing rooms, transcription, translation, the collection and disbursement of fees, and the services of a secretary or registrar to the tribunal. It is to be read with Section 2(6), under which a freedom the parties have to determine a matter includes the right to authorise a third person, including an institution, to determine it.

Two limits follow from the language. First, where the tribunal takes the initiative, the consent of the parties is required; the tribunal cannot impose an administrator or the cost of one. Second, what may be delegated is assistance and not adjudication. The tribunal must itself hear the parties, deliberate and decide, and the award must be the product of its own mind. A secretary may organise the file, prepare chronologies and summaries of the record, and attend to correspondence; the drafting of the reasoning is not administrative assistance, and an award shown to be the work of another hand would be open to challenge on the ground that the tribunal did not decide the dispute referred to it.

5. How the Four Sections Work Together

Read together they describe the posture the Act takes towards the arbitral process. The process is to run on the agreement of the parties, with the machinery it needs supplied privately under Section 6 and the formalities of communication settled by Section 3. A party who has a complaint about the way the process is running must make it at the time, or lose it under Section 4. And the court stands outside until the Act calls it in, which is the rule Section 5 states.

6. Related Topics and Provisions