Section 16 and Section 34 Compared

The same objection may be taken twice, at two different stages and before two different forums. Section 16 permits the arbitral tribunal to rule on its own jurisdiction, including on the existence and validity of the arbitration agreement. Section 34 permits the court, after the award, to set it aside on grounds which include the very same matters. The relationship is one of sequence rather than of competition: the tribunal decides first and the court decides last, and the scheme is arranged so that an unsuccessful objection cannot interrupt the reference.

The route a jurisdictional objection takes, and why the two outcomes are treated differently

1. The Overlap

Three of the grounds in Section 34(2)(a) are jurisdictional and correspond directly to pleas that must first be taken under Section 16: that a party was under some incapacity, that the arbitration agreement is not valid, and that the award deals with a dispute beyond the terms of the submission. A party raising any of these after the award will be asked what it did before the tribunal, because Section 16(2) requires a plea that the tribunal has no jurisdiction to be raised not later than the submission of the statement of defence, and Section 16(3) requires a plea of excess of scope to be raised as soon as the matter arises.

2. The Comparison

Basis	Section 16	Section 34
Forum	The arbitral tribunal	The court defined in Section 2(1)(e)
Stage	Before the award; the plea must be taken within the time the section fixes	After the award, within three months and a further thirty days
What is examined	The tribunal's own jurisdiction, including the existence and validity of the agreement	The stated grounds, which include the jurisdictional ones and others such as public policy
Depth of examination	Full; the tribunal hears the plea and decides it	Full on the grounds pleaded, but with no review of the merits
If the plea succeeds	The reference ends; an appeal lies at once under Section 37(2)(a)	The award is set aside; the claim may be re-arbitrated, with time excluded under Section 43(4)
If the plea fails	The tribunal continues and makes an award, Section 16(5); no appeal and no writ at that stage	The award stands and is enforced under Section 36; an appeal lies under Section 37(1)(c)
Effect of not raising it in time	The plea is lost unless the tribunal admits a later plea under Section 16(4)	A point not taken before the tribunal will usually be met with waiver under Section 4

3. The Asymmetry, and Why It Exists

The Act treats the two possible outcomes of a jurisdictional plea very differently, and the difference is deliberate. Where the plea is rejected, the tribunal continues and makes an award under Section 16(5), and Section 16(6) directs the aggrieved party to Section 34. There is no appeal against the rejection, because an appeal would allow every respondent to suspend the reference by taking a jurisdictional point. Where the plea is accepted, the reference ends and there will be no award to challenge, so Section 37(2)(a) gives an immediate appeal; without it the claimant would be left without a remedy.

⚠ A drafting point that is often misread

Section 16(6) speaks of an application under Section 34 against the award, not of an appeal against the order rejecting the plea. Section 37(2)(a) speaks of an appeal against an order accepting a plea referred to in Section 16(2) or (3), not against its rejection. Reading either the other way round is a common error and produces the wrong answer on both the remedy and the forum.

📖 Bhaven Construction v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd., (2022) 1 SCC 75

Held: Where a plea that the tribunal lacks jurisdiction has been rejected under Section 16, the party must ordinarily await the award and take the point under Section 34. The Act is a self-contained code and Section 5 embodies the intention to minimise judicial interference, so a petition under Article 226 or 227 against such an order is maintainable only in exceptional circumstances.

Significance: This closes the third route a disappointed objector might attempt, and it is the practical counterpart of Section 16(5).

4. What Section 16 Cannot Decide Finally

The tribunal is not the final judge of its own jurisdiction. Its ruling is examined by the court under Section 34, and for a foreign award under Section 48.
Non-arbitrability is not cured by a ruling. Section 34(2)(b)(i) permits the court to set aside an award where the subject matter is not capable of settlement by arbitration, and the court may take the point of its own motion; participation does not waive it.
Ineligibility under Section 12(5) is not a Section 16 question. Where the arbitrator falls within the Seventh Schedule his mandate ends de jure, and the remedy is an application to the court under Section 14 rather than a plea to the tribunal.

5. Practical Sequence

Take the jurisdictional plea before the statement of defence, and take a plea of excess of scope as soon as the matter alleged to be outside the reference is raised.
Plead it fully, with the facts, since the same material will be relied on later under Section 34 and the record of the arbitration is what the court will read.
If the plea is rejected, continue to participate under protest; withdrawal risks an ex parte award under Section 25(c) without improving the objection.
After the award, raise the point under the appropriate sub-clause of Section 34(2)(a), and show that it was taken in time before the tribunal.
If the plea is accepted, appeal at once under Section 37(2)(a); there is no award to wait for.

6. Related Topics and Provisions

Topic or provision	Connection
Jurisdiction of the Arbitral Tribunal: Section 16	Competence-competence and the two pleas in detail
Setting Aside a Domestic Award: Nature, Scope and Grounds	The grounds under Section 34(2)(a)
Arbitrability of Disputes	The one jurisdictional question no conduct can waive
Sections 4, 5, 14 and 37, A&C Act, 1996	Waiver, minimal intervention, termination of mandate and appeals
Section 43(4), A&C Act, 1996	Exclusion of time where an award is set aside