INTRODUCTION

The relationship between national courts and arbitral tribunals swings between forced cohabitation
and true partnership. If a jurisdiction is considered ‘arbitration friendly’, then the national courts
of that jurisdiction play a dominant role in supporting and promoting arbitration by:
• Maintaining a reasonable distance from the whole commercial arbitration procedure.
• Rescuing the process if one of the parties tries to sabotage the process by employing
delaying/disruptive practices.
However, the Indian courts continued to intervene in matters which were to be determined by the
tribunal. In order to discourage this Interventionist approach in India, the Arbitration and
Conciliation Act, 1996 was amended in 2015 thereby adding the phrases in Section 8 such as
“notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the
parties to arbitration unless it finds that prima facie no valid arbitration agreement exists” and
also provides Section 5 stating that no judicial authority shall intervene except where so provided
in Part I.

ROLE OF NATIONAL COURT AT DIFFERENT STAGES OF ARBITRATION

National courts play an important role at every stage of arbitration ensuring the smooth functioning
and success of commercial arbitration. The said stages are as follows:
i. At the beginning of an arbitration, national courts have the task of enforcing the agreement
to arbitrate if one of the parties should seek to avoid it.
ii. During the arbitral process, the arbitrators must take charge of the proceedings, set time
limits, organise meetings and hearings, issue procedural directions, consider the arguments
of fact and law put forward by, or on behalf of, the parties, and make their award.
iii. At the end of the arbitral process, national courts must also enforce the arbitral award if the
losing party is not prepared to comply with it voluntarily.

I. AT THE BEGINNING OF THE ARBITRATION

The intervention of the court may be necessary at the beginning of the arbitral process in at least
three situations:
1. The enforcement of the arbitration agreement {Indirect Control Mechanism];
2. The establishment of the tribunal/appointment of arbitrator(s); and
3. Challenges to jurisdiction of the tribunal {specifically Indirect challenge before the national
courts}

(a) ENFORCING THE ARBITRATION AGREEMENT

A party to an arbitration agreement might decide to issue proceedings in a court of law, rather than
to take the dispute to arbitration. However, most courts are obliged to enforce the agreement to
arbitrate pursuant to Article II of the New York Convention, by refusing to accept such
proceedings in court and by referring the parties instead to arbitration. This is also reflected in
Article 8 of the UNICITRAL Model Law.
Also, the Arbitration and Conciliation Act, 1996, provides Section 8 & 11 where a
determination made by the Court is binding because the tribunal will be within the jurisdiction of
the court i.e. India. On the other hand, Section 45 comes into picture when the arbitration is seated
outside India and one of the parties (usually the Indian party involved in the arbitration) files an
application before Indian courts to pursue litigation. A determination made by Indian courts u/s 45
will not be binding on the tribunal and will only be persuasive because it will be seated beyond the
jurisdiction of the court.
In SBP vs Patel Engineering (2005) the court illustrates the scope of intervention of the court
under S. 8 in two situations -- determining the "existence of [a] valid arbitration agreement" and
"determining whether the dispute raised is covered by the arbitration clause”. Further, comment
on the scope of the arbitral tribunal's power to decide its own jurisdiction and the inter-play
between Ss. 8 and 16. This is the position arising out of S. 11(7) of the Act read with S. 16
thereof." Same was followed in National Insurance Co. Ltd. v. Boghara Polyfabs (P) Ltd.

(b) ESTABLISHING THE ARBITRAL TRIBUNAL

If the parties have failed to make adequate provision for the constitution of an arbitral tribunal and
if there are no applicable institutional or other rules, the intervention of a national court may be
required to appoint the chairperson or the respondent's arbitrator and also intervene to decide any
challenge to the independence or impartiality of an arbitrator.

(c) CHALLENGES TO JURISDICTION OF THE TRIBUNAL

If any issue is raised as to the jurisdiction of the arbitral tribunal, it will generally be made at the
beginning of the arbitration. If the objection is successful, the arbitration will be terminated. Hence,
jurisdiction of the tribunal can be challenged in two ways:
i. Direct Challenge: before the arbitral tribunal itself. (for e.g. u/s 16 of the 1996 Act);
ii. Indirect Challenge: before the national courts (through ‘immediate challenge’)
The jurisdiction of an arbitral tribunal can be challenged on one of the following three ways:
1. On existence of the Arbitration agreement
This includes question i.e. whether there exists any arbitration agreement pursuant to which this
tribunal can rule on the dispute? This usually happens when one of the parties contend that the
agreement under which the dispute has arisen contains no arbitration clause and the other party
tries to show how the arbitration clause is incorporated by reference from another sister agreement
for the same project.
2. On Validity of the arbitration agreement
In order to establish a valid arbitration agreement, both applicable form requirements and
substantive consent requirements must be satisfied i.e: -
(i) Formal Validity: It is more about the form requirement of the arbitration agreement i.e. what
all should be thee in the arbitration clause to consider it a complete arbitration agreement as
provided under Section 7 of A&C, 1996 Act and Article II of the NYC.. The form requirement
is usually determined by reference to the laws of the seat of the arbitration.
(ii) Substantive Validity: The existence of capacity to conclude an arbitration agreement is a
requirement under all international arbitration conventions and national arbitration statutes for the
validity of the resulting agreement. Article V(1)(a) of NYC provides for non-recognition of arbitral
awards based on arbitration agreements concluded by a party that lacked the requisite capacity to
conclude such agreements.
3. On Scope of the arbitration agreement
An arbitration agreement confers a mandate upon an arbitral tribunal to decide any and all of the
disputes that come within the ambit of that agreement. The 1996 Act contains Section 34 and
Section 48 and Article V(1)(c) of NYC provides that recognition and enforcement may be
refused: ‘If the award deals with a difference not contemplated by or not falling within the terms
of the submission to arbitration, or if it contains decisions on matters beyond the scope of the
submission to arbitration’.
 II. DURING THE ARBITRAL PROCEEDINGS
There may be times, at which the involvement of a national court is necessary in order to ensure
the proper conduct of the arbitration, for instance, to ask the competent court to assist in taking
evidence, or to make an order for the preservation of property that is the subject of the dispute, or
to take some other interim measure of protection.
For India, same is given under Section 9 of the 1996 Act which provides that a party may, before
or during arbitral proceedings or at any time after the making of the arbitral award but before it is
enforced in accordance with Section 36, apply to a court— for the appointment of a guardian for
a minor or person of unsound mind for the purposes of arbitral proceedings and for an interim
measure of protection for which the Court shall have the same power for making orders as it has
for the purpose of, and in relation to, any proceedings before it.

III. ROLE OF NATIONAL COURTS AT THE END OF THE ARBITRATION

At the end of the arbitration proceeding, the tribunal comes up the award which is binding on the
parties. Now, the parties have two options -
• Set aside the resulting award which can only be done by the seat of the arbitration.
• Enforcing or refusing to enforce or recognize the arbitral award under NYC or Geneva
Convention which can be done by courts of the jurisdiction where the winning party tries to enforce
the award by using international conventions as provided under Sections 42 and 48.
Section 34 specifies about the application for setting aside an award by the court only if:

 The party was under some incapacity

 When the arbitration agreement is not under the law
 When the party making the application was not given legitimate information or notice of
the appointment of an arbitrator
 It contains choice on issues past the extent of discretion
 The composition of the tribunal or arbitral procedure was not at par with the agreement of
the parties.
 The topic of the contest isn't fit for settlement by assertion under the law
 The arbitral award is in strife with the open arrangement of India
CONCLUSION
The dominant theme in the debate about the evolving role of courts in arbitral process has been
that national courts support for arbitration is equivalent to court non-intervention but that may or
may not be so as support and intervention are not necessarily antagonistic. The support for
arbitration does postulate particularly at the pre-arbitration stage, the fact that court has to
proactively assist in the efficacy of the arbitral process; first, by mandatorily referring parties to
arbitration where prima facie an arbitration agreement exists; second, courts are bound to
intervene effectively and grant interim measures on being sought by parties. In fact, an added
responsibility is cast upon courts to grant interim measures of protection proactively in
jurisdictions where arbitral institutions are yet to incorporate the requirements of an Emergency
Arbitrator or in places where ad hoc arbitrations dominate the arbitral landscape. Another relevant
area of concern is effective management of arbitration litigation caseload before the courts by
designating specialized benches to deal with arbitration matters.