ADR Project

ALTERNATE DISPUTE
RESOLUTION
NATIONAL INSURANCE CO. LTD. V. BOGHARA

POLYFAB (P) LTD., AIR 2009 SC 170
Submitted by: Rohan Gupta
I.D No. 2247
III Year, Trimester IX
Date 0f submissi0n: 21th May, 2018
1
National Law School of India University
TABLE OF CONTENTS
______________________________________________________________________________
Table 0f Auth0rities.........................................................................................................................3
a. Legislati0ns...........................................................................................................................3
b. Cases.....................................................................................................................................3
Intr0ducti0n.....................................................................................................................................4
Research Meth0d0l0gy....................................................................................................................6
a. Research questi0ns................................................................................................................6
b. Aims and Objectives.............................................................................................................6
c. Sc0pe and Limitati0ns..........................................................................................................6
d. Hyp0thesis............................................................................................................................6
e. S0urce 0f Data......................................................................................................................6
f. M0de 0f Citati0n...................................................................................................................7
Chapter 1: Nati0nal Insurance C0. v. B0ghara P0lyfab- A Pr0-Arbitrati0n Endeav0ur.................8
a. Facts 0f the case....................................................................................................................8
b. C0urse 0f acti0n by the Resp0ndent.....................................................................................8
c. Quest f0r Arbitrati0n............................................................................................................9
d. Issue bef0re the Apex C0urt...............................................................................................10
e. C0ntenti0ns by the Appellant.............................................................................................10
f. C0ntenti0ns by the Resp0ndent..........................................................................................11
g. Decisi0n and the Rati0nale.................................................................................................11
Chapter 2: Nati0nal Insurance as a step in c0rrect directi0n.........................................................14
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a. Categ0rizati0n under secti0n 11- checking the unbridled discreti0n.................................14
b. N0rmative Analysis- Judicial 0r Administrative................................................................15
Chapter 3: A Pr0-Arbitrati0n Era- The Arbitrati0n and C0nciliati0n (Amendment) Act, 2015...18
a. A Legislative Triumph 0ver Patel Engineering..................................................................18
C0nclusi0n.....................................................................................................................................21
Bibli0graphy..................................................................................................................................22
a. B00ks..................................................................................................................................22
b. Articles................................................................................................................................22
c. Rep0rts................................................................................................................................22
TABLE OF AUTHORITIES
______________________________________________________________________________
a. Legislati0ns
1. M0del Law 0n Internati0nal C0mmercial Arbitrati0n 0f the United Nati0ns C0mmissi0n
0n Internati0nal Trade Law, G.A. Res. 40/72, U.N. D0c. A/RES/40/72, (December 11,
1985).
2. The Arbitrati0n and C0nciliati0n (Amendment) Act, 2015.
3. The Arbitrati0n and C0nciliati0n Act, 1996.
b. Cases
1. Ad0r Samia Pvt. Ltd. Peekay H0ldings Ltd., 1999 (8) 572.
2. Ambica C0nstructi0n v. Uni0n 0f India, 2006 (12) SCALE 149.
3. Arasmeta Captive C0. v. Lafarge India Ltd., AIR 2014 SC 525.
4. Bharat Heavy Electricals Ltd., Ranipur v. Amar Nath Bhan Prakash, (1982) 1 SCC 625.
5. Chairman & Managing Direct0r, NTPC Ltd. v. Reshmi C0nstructi0ns, builders &
C0ntract0rs, AIR 2004 SC 1330.
6. Chl0r0 C0ntr0l India Ltd. v. Seven Trent Water Purificati0n Inc., (2013) 1 SCC 641.
7. Dam0dar Valley C0rp0rati0n v. K.K. Kar [1974] 2 SCR 240.
8. Jayesh Engineering W0rks v. New India Assurance C0. Ltd., (2000) 10 SCC 178.
9. K0nkan Railway C0rp. Ltd. v. Mehul C0nstructi0ns, (2000) 7 SCC 201.
3
10. K0nkan Railway C0rp. Ltd. v. Rani C0nstructi0n, (2000) 8 SCC 159.
11. K0nkan Railway C0rp0rati0n v. Rani C0nstructi0n C0., (2002) 2 SCC 388.
12. Nathani Steels Ltd. v. Ass0ciated C0nstructi0ns, 1995 (Supp) 3 SCC 324.
13. Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267.
14. P.K. Ramaiah & C0. v. Chairman & Managing Direct0r, Nati0nal Thermal P0wer
C0rp0rati0n, 1994 (1) SCALE 1.
15. SBP & C0. v. Patel Engineering, (2005) 8 SCC 618.
16. State 0f Maharashtra v. Nav Bharat Builders AIR 1991 SC 11.
17. Uni0n 0f India v. L.K. Ahuja & C0., [1988] 3 SCR 402.
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INTRODUCTION
______________________________________________________________________________
In the first decade 0f the Arbitrati0n and C0nciliati0n Act, 1996 [A&C Act] an issue that
r0utinely engaged the attenti0n 0f the Apex C0urt was regarding the nature 0f p0wer exercised
by the Chief Justice 0r his designate in app0inting arbitrat0r under secti0n 11 0f the A&C Act.
Initially, the matter was settled by a C 0nstituti0n Bench in K0nkan Railway C0rp0rati0n v. Rani
C0nstructi0ns C0.,1 h0lding that the p0wer is purely an administrative functi 0n, that it is neither
judicial n0r quasi-judicial and the Chief Justice 0r his n0minee perf0rming the functi0n under
secti0n 11(6) 0f the A&C Act, cann0t decide any c0ntenti0us issue between the parties.
H0wever, this was 0verruled by a seven judge bench in SBP & C0. Patel Engineering2 where it
was held that it the p0wer is judicial in nature. In d 0ing s0, the C0urt als0 laid d0wn the
parameters f0r the exercise 0f the said p0wer, by directing that the Chief Justice 0r his designate
has t0 c0nsider the f0ll0wing. First, whether the party making the m0ti0n has appr0ach the right
High C0urt. Sec0ndly, whether the claim was a dead 0ne; 0r a l0ng barred claim that was s0ught
t0 be resurrected and whether the parties have c0ncluded the transacti0n by rec0rding
satisfacti0n 0f their mutual rights and 0bligati0ns 0r by receiving the final payment with0ut
0bjecti0n.
In arriving at its c0nclusi0ns, the maj0rity, in Patel Engineering, 0verturned a l0ng list 0f
precedents set by l0wer benches 0f the Supreme C0urt in Ad0r Samia Pvt. Ltd. v. Peekay
H0ldings Ltd.,3 K0nkan Railways C0rp. Ltd. v. Mehul C0nstructi0ns,4 and K0nkan Railways
C0rp. Ltd. v. Rani C0nstructi0ns Pvt. Ltd.,5 wherein secti0n 11 0f the A&C Act was agreed t0 be
administrative in nature. The Patel Engineering decisi 0n virtually reduced secti0n 16 0f the A&C
Act t0 a dead letter by making it applicable 0nly t0 th0se arbitrati0ns, where the arbitrat 0r was
n0t app0inted by the c0urt. The decisi0n is widely regarded as “regressive”, “anti-arbitrati0n”
and has been criticized by many c0mmentat0rs.6
1
K0nkan Railway C0rp0rati0n v. Rani C0nstructi0n C0., (2002) 2 SCC 388.
2
SBP & C0. v. Patel Engineering, (2005) 8 SCC 618.
3
Ad0r Samia Pvt. Ltd. Peekay H0ldings Ltd., 1999 (8) 572.
4
K0nkan Railway C0rp. Ltd. v. Mehul C0nstructi0ns, (2000) 7 SCC 201.
5
K0nkan Railway C0rp. Ltd. v. Rani C0nstructi0n, (2000) 8 SCC 159.
6
O.P. Malh0tra, Operating the Pand0ra’s B0x: An analysis 0f the Supreme C0urt’s decisi0n in SBP v. Patel
Engineering 19(2) STUDENT BAR REVIEW 69, 76 (2007) available at
http://d0cs.manupatra.in/newsline/articles/Upl0ad/30693C83-676B-4CD5-9D46-73C1810E46BC.pdf (Last visited
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In this backgr0und, Nati0nal Insurance v. B0ghara P0lyfab assumes significance as it clarifies
the functi0ns 0f the Chief Justice 0r his designate by categ0rizing the issues int0 three categ0ries
which clearly delineates the jurisdicti0n between the C0urt and the Tribunal. Pri0r t0 delving
int0 the analysis 0f the categ0rizati0n made by the c0urt in Nati0nal Insurance the researcher
puts f0rth the factual matrix 0f the case, the issue delved int 0 by the c0urt, arguments fr0m b0th
parties and the decisi0n 0f the c0urt.
0n May 14, 2018).
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RESEARCH METHODOLOGY
______________________________________________________________________________
A descriptive, analytical and critical m0de 0f writing is empl0yed in the research paper.
a. Research questi0ns
1. What are the maj0r pr0p0siti0ns laid d0wn in the case 0f Nati0nal Insurance?
2. H0w d0 these pr0p0siti0ns deviate fr0m the p0siti0n 0f law pri0r t0 Nati0nal Insurance?
3. What is the devel0pment in law p0st the decisi0n in Nati0nal Insurance?
4. What sh0uld be the p0siti0n 0f law, n0rmatively, in light 0f the legislative hist0ry?
5. Whether the appr0ach 0f c0urts t0wards arbitrati0n in India is persistent judicial
interventi0n i.e., anti-arbitrati0n 0r pr0-arbitrati0n?
b. Aims and Objectives

The primary aim 0f this research paper is t0 analyze the maj0r pr0p0siti0ns put f0rth by the Apex
C0urt in Nati0nal Insurance in light 0f precedential laws and subsequent devel0pments. This
study inv0lves a n0rmative study int0 the p0siti0n 0f law.
c. Sc0pe and Limitati0ns

The sc0pe 0f this paper is restricted t0 analysis t0 secti0n 11 0f the A&C Act and d0es n0t delve
int0 the details 0f principles 0f k0mpetenz-k0mpetenz enshrined under secti0n 16 0f the A&C
Act, especially the negative effects 0f the principle. The analysis 0f the paper res0lves ar0und the
categ0rizati0n 0f secti0n 11 made under Nati0nal Insurance.
d. Hyp0thesis
The categ0rizati0n in Nati0nal Insurance th0ugh d0es n0t deviate fr0m the Patel Engineering
judgment, reduces a p0tential misuse 0f the wide p0wer envisaged f0r the Chief Justice 0r his
designate under secti0n 11 0f the A&C Act.
e. S0urce 0f Data
Primary s0urce 0f data such as case laws c0nstitute the maj0r s0urce 0f data. Reference has been
made t0 the rep0rts 0f the Law C0mmissi0n 0f India. Sec0ndary s0urces 0f data such as b00ks
and articles are als0 used.
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f. M0de 0f Citati0n
The citati0n are based 0n the Nati0nal Law Sch00l Guide t0 Unif0rm Legal Citati0n thr0ugh0ut
the research paper.
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CHAPTER 1: NATIONAL INSURANCE C 0. V. BOGHARA POLYFAB- A PRO-
ARBITRATION ENDEAVOUR
______________________________________________________________________________
a. Facts 0f the case
The resp0ndent insured, B0ghara P0lyfab Pvt. Ltd. had 0btained a standard fire and special
perils (with a fl0ater) p0licy fr0m the appellant insurer. Nati0nal Insurance C0. Ltd. t0 c0ver its
g00ds in its g0-d0wns. On the risk against which the insurance had been taken materializing, the
resp0ndent raised claims under the p0licy. After the survey0r had made his final rep0rt, and n0
payment having f0ll0wed under the claim f0r a c0nsiderable peri0d 0f time, payment was made
under disputed circumstances.7
The resp0ndent alleged that the appellant f0rced the resp0ndent t0 accept a l0wer settlement that
was all0wable under the p0licy. It was c0ntended that the appellant inf0rmed the resp0ndent that
unless and until the resp0ndent issued an undated discharge v0ucher-in-advance (in the
prescribed f0rm) ackn0wledging receipt 0f ab0ut Rs. 2.3. Cr0re in full and final settlement
(while the resp0ndent was claiming ab0ut Rs. 3.2. Cr0re), n0 am0unt w0uld be released t0wards
the claim.8 Acc0rdingly, the appellant sent the f0rmat 0f the v0ucher t0 be signed by the
resp0ndent 0n 21.03.2006. In light 0f the n0n-release 0f the claim, the resp0ndent was in dire
financial c0nditi0n and had n0 alternative but t0 yield t0 the c0erci0n and pressure applied by the
appellant. C0nsequently, the resp0ndent signed and gave the said discharge v0ucher, undated as
required by the insurer during the last week 0f March 2006.9 The payment was released by the
appellant 0nly after receiving the said discharge v0ucher.
b. C0urse 0f acti0n by the Resp0ndent

Simultane0usly, while signing and handing 0ver the discharge 0ver the discharge v0ucher, the
resp0ndent l0dged a c0mplaint dated 24.03.2006 with the Insurance Regulat0ry and
Devel0pment Auth0rity [IRDA].10 The resp0ndent als0 issued a legal n0tice dated 27.05.2006
wherein it was alleged that the am0unt due by the insurer was ab 0ut Rs. 3.2 Cr0re and that under
duress and implicit c0erci0n, it had accepted that payment 0f ab0ut Rs. 2.3 Cr0re by signing and
7
Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267, ¶¶ 1-4.
8
Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267, ¶ 5.
9
10
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handling 0ver a full and final discharge v0ucher. By the said n0tice, the resp0ndent demanded
the difference am0unt with interest at the rate 0f 12 per cent per annum fr0m 06.12.2004 (the
date 0f final survey rep0rt) till the date 0f payment.11 The resp0ndent als0 inf0rmed the appellant
that if payment was n0t s0 made within 15 days, the n0tice sh0uld be treated as n0tice inv0king
arbitrati0n.12
The appellant by its reply dated 02.08.2006 rejected the said demand. The appellant c 0ntended
that the resp0ndent has unc0nditi0nally accepted the claim settlement am0unt fully and finally. It
was further c0ntended that the resp0ndent had n0t registered any pr0test while accepting the
claim cheque and the am0unt payable was arrived at amicably after discussing all aspects 0f the
claim with the insured. Since, at n 0 juncture was pr0test expressed the questi0n 0f inv0king the
pr0visi0n the pr0visi0n f0r arbitrati0n did n0t arise.
c. Quest f0r Arbitrati0n

In light 0f the appellant’s refusal t0 agree f0r arbitrati0n, the resp0ndent filed an applicati0n
under secti0n 11 0f the A&C Act in the High C0urt. The said petiti0n was resisted by the
appellant by reiterating that the resp0ndent had accepted the payment 0f ab0ut Rs. 2.3 Cr0re in
full and final settlement and theref0re, the resp0ndent c0uld n0t inv0ke the arbitrati0n clause.13
The H0n’ble Chief Justice 0f the High C0urt all0wed the petiti0n. After c0nsidering the facts, he
was 0f the 0pini0n that there was a seri0us dispute between the parties as t0 whether the full and
final discharge v0ucher was given v0luntarily 0r under pressure 0f c0erci0n which was required
t0 be settled by arbitrati0n. Acc0rdingly, he app0inted Justice S.N. Variava as a s0le arbitrat0r.
The chief justice left 0pen the questi0n whether there was any c0erci0n/undue influence in
regard t0 issue 0f said full and final settlement discharge v0ucher by the resp0ndent and
permitted the parties t0 lead evidence bef0re the arbitrat0r 0n that questi0n. The said 0rder had
been challenged by the insurer bef0re the Apex C0urt by special leave under Article 136 0f the
C0nstituti0n 0f India.14
d. Issue bef0re the Apex C0urt

The issue bef0re the H0n’ble Apex C0urt was as f0ll0ws:15
11
12
13
14
15
10
“In what circumstances, a c0urt will refuse t0 refer a dispute relating t0 quantum t0 arbitrati0n,
when the c0ntract specifically pr0vide f0r reference 0f disputes and differences relating t0 the
quantum t0 arbitrati0n? In particular, what is the p0siti0n when a resp0ndent in an applicati0n
under secti0n 11 0f the Act, resists reference t0 arbitrati0n 0n the gr0unds that petiti0ner has
issued a full and final settlement discharge v 0ucher and the petiti0ner c0ntends that he was
c0nstrained t0 issue it due t0 c0erci0n, undue influence and ec0n0mic c0mpulsi0n?”
e. C0ntenti0ns by the Appellant

There were three c0ntenti0ns put f0rth by the appellants. They are elucidated in the f 0ll0wing
paragraph.
First, 0nce the insurance claim was settled and the insured received payment and issued a full
and final discharge v0ucher, there was discharge 0f the c0ntract by acc0rd and satisfacti0n.
C0nsequently, neither the c0ntract n0r any claim survived.16
Sec0ndly, having received the payment under the said discharge v0ucher, the resp0ndent cann0t,
while retaining and enj0ying the benefit 0f the full and final payment, challenge the validity 0r
c0rrectness 0f the discharge v0ucher.17
Thirdly, the appellant submitted that the decisi 0ns relied 0n by the resp0ndent were all rendered
by tw0- Judge Bench 0f the Supreme C0urt, whereas the decisi0n in Nathani Steels relied 0n by
the appellant, was rendered by a three judge bench. Theref 0re, the principle laid d0wn in
Nathani Steels that there can be n0 reference t0 arbitrati0n wherever there is a full and final
settlement, resulting in the discharge 0f the c0ntract, h0lds the field and will have t 0 be f0ll0wed
in preference t0 the 0ther decisi0ns.18
f. C0ntenti0ns by the Resp0ndent

There were tw0 c0ntenti0ns raised by the appellants. They are elucidated in the f 0ll0wing
paragraph.
First, it was submitted that the sc0pe 0f pr0ceeding under secti0n 11 0f the A&C Act was
limited. Theref0re, 0nce the petiti0ner established that the c0ntract between the parties c0ntains
an arbitrati0n agreement, and that the dispute raised is in respect 0f a claim arising 0ut 0f such a
16
17
18
11
c0ntract, the dispute has t0 be referred t0 arbitrati0n. Any c0ntenti0n by the appellant that there
is discharge 0f the c0ntract by issue 0f full and final v0ucher is a matter f0r the arbitral tribunal
t0 examine as well as decide, and it cann0t be held 0ut as a thresh0ld bar t0 arbitrati0n. It was
v0cifer0usly argued that the questi0n whether there was acc0rd and satisfacti0n, 0r whether there
was discharge 0f a c0ntract by perf0rmance, is itself a questi0n that is clearly arbitrable.19
Sec0ndly, where the pers0n 0n wh0m the claim is made, withh0lds the admitted am0unt t0
c0erce and c0mpel the claimant t0 accept a smaller payment in full and final settlement and give
a discharge v0ucher, there is n0 acc0rd and satisfacti0n in the eye 0f law. Such discharge
v0ucher will n0t c0me in the way 0f a genuine and b0na fide dispute being raised regarding the
balance 0f the claim and seeking reference 0f such claim t0 arbitrati0n.20
g. Decisi0n and the Rati0nale

The Supreme C0urt while delving int0 the c0ntenti0ns 0f the parties categ0rically stated that
auth0rities cited t0 reinf0rce the arguments clearly diverge int0 tw0 categ0ries such that the
pr0p0siti0ns highlighted in them are n0t c0nflicting.21 It was stated that 0ne categ0ry is where the
c0urt after c0nsidering the facts, f0und that there was a full and final settlement resulting in
acc0rd and satisfacti0n, and there c0uld be n0 substance in the allegati0ns 0f c0erci0n/undue
influence. C0nsequently, it was held that there c0uld be n0 reference 0f any dispute t0
arbitrati0n.22 The 0ther categ0ry was where the c0urt f0und s0me substance in the c0ntenti0n 0f
the claimants that n0 due/claim certificates, 0r full and final settlement discharge v0uchers
where insisted and taken (either in a printed f0rmat 0r 0therwise) as a c0nditi0n precedent f0r
release 0f the admitted dues. Alternatively, there were cases where full and final discharge was
alleged, but there were n0 d0cuments c0nfirming such discharge. C0nsequently, the Apex C0urt
held that the disputes were arbitrable.23 It was clarified that n0ne 0f the cases relied 0n by the
19
20
21
22
Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267, ¶ 42. Reliance placed 0n State 0f
Maharashtra v. Nav Bharat Builders AIR 1991 SC 11; P.K. Ramaiah & C0. v. Chairman & Managing Direct0r,
Nati0nal Thermal P0wer C0rp0rati0n, 1994 (1) SCALE 1; Nathani Steels Ltd. v. Ass0ciated C0nstructi0ns, 1995
(Supp) 3 SCC 324.
23
Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267, ¶ 43. Reliance placed 0n Dam0dar
Valley C0rp0rati0n v. K.K. Kar [1974] 2 SCR 240; Bharat Heavy Electricals Ltd., Ranipur v. Amar Nath Bhan
Prakash, (1982) 1 SCC 625; Uni0n 0f India v. L.K. Ahuja & C0., [1988] 3 SCR 402; Jayesh Engineering W0rks v.
New India Assurance C0. Ltd., (2000) 10 SCC 178; Chairman & Managing Direct0r, NTPC Ltd. v. Reshmi
C0nstructi0ns, builders & C0ntract0rs, AIR 2004 SC 1330; Ambica C0nstructi0n v. Uni0n 0f India, 2006 (12)
SCALE 149.
12
appellant lay d0wn a pr0p0siti0n that mere executi0n 0f a full and final settlement receipt 0r a
discharge v0ucher is a bar t0 arbitrati0n, even when the validity there 0f is challenged by the
claimant 0n the gr0und 0f fraud, c0erci0n 0r undue influence. These cases d0 n0t lay d0wn a
pr0p0siti0n that even if the discharge 0f c0ntract is n0t genuine 0r legal, the claims cann0t be
referred t0 arbitrati0n.24
Hence, the Apex C0urt while dismissing the appeal and affirming the app0intment 0f the
arbitrat0r held that 0btaining 0f undated receipts-in-advance in regard t0 regular/r0utine
payments by g0vernment departments and c0rp0rate sect0r in an accepted practice which has
c0me t0 stay due t0 administrative exigencies and acc0unting necessities. The fact which is 0f
s0me relevance is the r0utine insistence by s0me g0vernment departments, statut0ry c0rp0rati0ns
and g0vernment c0mpanies f0r issue 0f undated n0-dues certificates 0r full and final settlement
v0uchers ackn0wledging receipt 0f a sum which is smaller than the claim in full and final
settlement 0f all claims, as a c0nditi0n precedent f0r releasing even the admitted dues. Such a
pr0cedure was stated t0 be unfair, irregular, and illegal and required t0 be deprecated.25
The receipt that had been taken in this case by the appellant insurer was undated and was in pr 0
f0rma furnished by the appellant c0ntaining irrelevant and inappr0priate statements. There was a
menti0n 0f assignment 0f certain rights in respect 0f theft 0f pr0perty by the insured t0 the
insurer. The claim was neither in regard 0f theft 0f any pr0perty n0r was the claim being settled
in respect 0f a theft claim. This sh0wed h0w claimants were required t0 sign 0n the d0tted line,
and h0w such v0uchers were insisted up0n and taken mechanically with0ut applicati0n 0f mind.
Admittedly, 0n the date when the ab0ve-said discharge v0ucher was signed and given by the
resp0ndent, the payment 0f ab0ut Rs. 2.3 cr0re had n0t been made. It was made after receiving
the v0ucher. Theref0re, at the time 0f signing the v0ucher by the resp0ndent and at the time 0f
delivery 0f v0ucher by the resp0ndent t0 the appellant, the c0ntents 0f the v0ucher that the said
am0unt had been received, that such am0unt had been received in full and final settlement 0f the
claims, and that in c0nsiderati0n 0f such payment, the C0mpany was abs0lved 0f any further
liabilities, were held t0 be false and n0t supp0rted by c0nsiderati0n.26 It was held that the High
c0urt rightly examined the issue and f0und that prima facie there was n0 acc0rd and satisfacti0n
24
25
26
Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267, ¶¶ 42, 43, 53, 54.
13
0r discharge 0f the c0ntract. It appr0priately held that the appellant is still entitled t0 raise this
issue bef0re an arbitrat0r and the arbitrat0r has t0 decide it. But it is still 0pen t0 the appellant t0
lead evidence bef0re the arbitrat0r, t0 establish that there is a valid and binding discharge 0f the
c0ntract by way 0f acc0rd and satisfacti0n.27
CHAPTER 2: NATIONAL INSURANCE AS A STEP IN CORRECT DIRECTION

______________________________________________________________________________
a. Categ0rizati0n under secti0n 11- checking the unbridled discreti0n
A piv0tal pr0p0siti0n that changed the manner 0f appr0aching secti0n 11 0f the A&C Act was
laid d0wn in Nati0nal Insurance v. B0ghara P0lyfab. This pr0p0siti0n is categ0rizati0n 0f issues
t0 be decided under secti0n 11 0f the A&C Act. As stated while laying d 0wn the c0ntext 0f the
research paper the Patel Engineering case was criticized f0r reducing the p0wers 0f the arbitral
27
14
tribunal. In this backgr0und, Nati0nal Insurance v. B0ghara P0lyfab assumes significance as it
clarifies the functi0ns 0f the Chief Justice 0r his designate by categ0rizing the issues int0 three
categ0ries i.e. the Chief Justice 0r his designate will have t0 decide viz., whether the party
making the applicati0n has appr0ached the right High C0urt, whether there is an arbitrati 0n
agreement in existence and the party making the applicati0n is a party t0 the arbitrati0n
agreement, may ch00se t0 decide viz., whether the claim is a dead claim 0r live claim, whether
the parties have c0ncluded the c0ntract/transacti0n by rec0rding satisfacti0n 0f their mutual
rights and 0bligati0n 0r by receiving the final payment with0ut 0bjecti0n and sh0uld leave
exclusively t0 the arbitral tribunal viz., whether the claim falls within the arbitrati0n clause,
merits 0f the claim inv0lved in the arbitrati0n.28 This categ0rizati0n clearly delineates the
jurisdicti0n between the C0urt and the Tribunal. The categ0rizati0n, alth0ugh d0es n0t deviate
fr0m the Patel Engineering judgment, reduces a p0tential misuse 0f the wide p0wer envisaged
f0r the Chief Justice 0r his designate under secti0n 11. This categ0rizati0n was later appr0ved by
a three judge bench in Chl0r0 C0ntr0ls P. Ltd. v. Severn Trent Water Purificati 0n Inc.,29 and was
strictly adhered in Arasmeta Captive C0. v. Lafarge India Ltd.,30 refusing t0 further enhance the
p0wers 0f the C0urt at the secti0n 11 stage.
28
Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267, ¶22.
“22. Where the interventi0n 0f the c0urt is s0ught f0r the app0intment 0f an Arbitral Tribunal under secti0n 11,
the duty 0f the Chief Justice 0r his designate is defined in SBP & C0. This c0urt identified and segregated the
preliminary issues that may arise f0r c0nsiderati0n in an applicati0n under secti0n 11 0f the Act int0 three
categ0ries, that is (i) issues which the Chief Justice 0r his Designate is b0und t0 decide; (ii) issues which he can
als0 decide, that is issues which he may ch00se t0 decide; and (iii) issues which sh0uld be left t0 the Arbitral
Tribunal t0 decide.
22.1 The issues (first categ0ry) which Chief Justice/his designate will have t0 decide are:
(a) Whether the party making the applicati0n has appr0ached the appr0priate High C0urt.
(b) Whether there is an arbitrati0n agreement and whether the party whi has applied under secti0n 11 0f the Act, is
a party t0 such an agreement.
22.2 The issues (sec0nd categ0ry) which the Chief Justice /his designate may ch00se t0 decide (0r leave them t0
the decisi0n 0f the arbitral tribunal) are:
(a) Whether the claim is a dead (l0ng barred) claim 0r a live claim.
(b) Whether the parties have c0ncluded the c0ntract/ transacti0n by rec0rding satisfacti0n 0f their mutual rights
and 0bligati0n 0r by receiving the final payment with0ut 0bjecti0n.
22.3 The issues (third categ0ry) which the Chief Justice/his designate sh0uld leave exclusively t0 the arbitral
tribunal are:
(i) Whether a claim made falls within the arbitrati0n clause (f0r example, a matter which is reserved f0r final
decisi0n 0f a departmental auth0rity and expected 0r excluded fr0m arbitrati0n).
(ii) Merits 0r any claim inv0lved in the arbitrati0n.”
29
Nati0nal Insurance C0. Ltd. v. B0ghara P0lyfab (P) Ltd., (2009) 1 SCC 267, ¶¶ 120-127 and 130.
30
Arasmeta Captive C0. v. Lafarge India Ltd., AIR 2014 SC 525.
15
b. N0rmative Analysis- Judicial 0r Administrative
Secti0n 11 0f the A&C Act caters t0 a range 0f circumstances where the parties are unable 0r
unwilling t0 c0nstitute an arbitral tribunal, n0twithstanding the reas0ns behind the same. The
0stensible purp0se t0 ensure that any difficulty in c0nstituting the arbitral tribunal d0es n0t delay
the c0mmencement 0f the intended arbitral pr0ceedings. The questi0n whether the same
c0nstitutes a judicial 0r an administrative functi0n, h0wever, is n0 l0nger res integra being dealt
with in K0nkan Railway C0rp0rati0n v. Rani C0nstructi0n C0.,31 and subsequently in SBP &
C0. v. Patel Engineering.32
Secti0n 11 0f the Arbitrati0n Act c0nfers up0n the Chief Justice the p0wer t0 app0int arbitrat0r
in certain select circumstances. The said pr0visi0n c0rresp0nds t0 Article 11 0f the UNICTRAL
M0del Law [MLA].33 In fact, as stated in the Preamble t 0 the Arbitrati0n Act, the said legislati 0n
had been enacted taking int0 acc0unt the af0resaid M0del Law.34 H0wever, interestingly, Article
11, MLA, c0nfers the p0wer t0 app0int an arbitrat0r 0n a c0urt, 0r any 0ther auth0rity specified
in Article 6 0f the MLA, and n0t particularly the Chief Justice.35 Further, Article 6, MLA permits
each c0untry enacting the M0del Law t0 specify the c0urt(s), 0r an0ther c0mpetent auth0rity t0
app0int an arbitrat0r under Article 11.36 The 0bjective behind vesting such discreti0n with a State
is discernable f0rm the Analytical C0mmentary t0 the MLA, which states that,
“The functi0ns referred t0 in this article relate t0 the app0intment 0f an arbitrat0r… T0

c0ncentrate these arbitrati0n-related functi0ns in a specific C0urt is expected t0 result in the
f0ll0wing advantages. It w0uld help parties, in particular f0reign 0nes, m0re easily t0 l0cate the
c0mpetent c0urt and 0btain inf0rmati0n 0n any relevant features 0f that C0urt, including its
p0licies ad0pted in previ0us decisi0ns. Even m0re beneficial t0 the functi0ning 0f internati0nal
c0mmercial arbitrati0n w0uld be the expected specializati0n 0f that C0urt…”37
31
K0nkan Railway C0rp0rati0n v. Rani C0nstructi0n C0., (2002) 2 SCC 388.
32
SBP & C0. v. Patel Engineering, (2005) 8 SCC 618.
33
P.C. Markanda et. al., LAW RELATING T0 ARBITRATI0N AND C0NCILIATI0N, 11 (8th edn., 2013).
34
Preamble, THE ARBITRATI0N AND C0NCILIATI0N ACT, 1996.
35
Article 11(3) & (4), M0DEL LAW 0N INTERNATI0NAL C0MMERCIAL ARBITRATI0N 0F THE UNITED NATI 0NS
C0MMISSI0N 0N INTERNATI0NAL TRADE LAW, G.A. Res. 40/72, U.N. D0c. A/RES/40/72, (December 11, 1985).
36
Article 6, M0DEL LAW 0N INTERNATI0NAL C0MMERCIAL ARBITRATI0N 0F THE UNITED NATI 0NS C0MMISSI0N
0N INTERNATI0NAL TRADE LAW, G.A. Res. 40/72, U.N. D0c. A/RES/40/72, (December 11, 1985).
37
United Nati0ns C0mmissi0n 0n Internati0nal Trade Law, ANALYTICAL C0MMENTARY 0N DRAFT TEXT 0F A
M0DEL LAW 0N INTERNATI0NAL C0MMERCIAL ARBITRATI0N, U.N. D0c. A/CN9/264, 20 (1985).
16
Mindful 0f the af0rementi0ned 0bjective, the Analytical C0mmentary pr0ceeds t0 clarify that the
C0urt designated under Article 6 need n0t necessarily be a full c0urt at all.38 Theref0re, the MLA
clearly envisages the functi0n 0f app0intment 0f arbitrat0rs under Article 11 t0 be a mere
administrative functi0n, with abs0lutely n0 judicial 0vert0nes.
In India, the seeds 0f a departure fr0m the p0siti0n under the MLA were initially s 0wn by the
176th Rep0rt 0f the Law C0mmissi0n 0f India 0n The Arbitrati0n and C0nciliati0n (Amendment)
Bill, 2001. The Law C0mmissi0n began by n0ting that it had been cauti 0ned, by several
resp0nses t0 the C0nsultati0n Paper, that it sh0uld n0t g0 by the 1940 Act mind-set but has t0
keep the UNICTRAL M0del Law in mind. H0wever, the C0mmissi0n went 0n t0 0pine that
while we sh0uld n0t have the 1940 Act mindset, that d0es n0t mean we sh0uld have cl0sed mind
and n0t try t0 impr0ve 0n the M0del Law. Thus, f0r an 0bjective c0nsiderati0n 0f what is best
f0r the parties wh0 seek arbitrati0n, neither an undue adherence t0 the 1940 Act mind-set n0r an
unnecessary anxiety t0 maintain UNICTRAL mind-set in its t0tality is desirable.39 After
discussing the perceived benefits 0f classifying the functi0n perf0rmed under secti0n 11 as a
judicial functi0n, the Law C0mmissi0n “pr0p0sed that secti0n 11 be appr0priately amended by
submitting the w0rds Supreme C0urt f0r the w0rds Chief Justice 0f India and the w0rds High
C0urt f0r the w0rds Chief Justice 0f the High C0urt”;40 a pr0p0sal eventually given effect t0 by
the Amendment Act in 2015.
A perusal 0f the march precedential law p0st Patel Engineering41 establishes that unlike the
MLA, Secti0n 11 0f the A&C Act in India inv0lves the exercise 0f a judicial functi0n. M0re0ver,
as already iterated ab0ve, pri0r t0 app0inting an arbitrat0r under secti0n 11, the Chief Justice
38
Id.
“It may well be, f0r example, the president 0f a c0urt 0r the presiding judge 0f a chamber f0r th0se secti0ns,
which are 0f a m0re administrative nature, and where speed and finality are particularly desirable.”
It c0ntinues “that a state may entrust these administrative functi0ns even t0 a b0dy 0utside its c0urt system”, such
as an arbitrati0n c0mmissi0n 0r a specialized instituti0n created t0 handle internati0nal disputes.
39
176th Rep0rt 0f the Law C0mmissi0n 0f India, THE ARBITRATI0N AND C0NCILIATI0N (AMENDMENT) BILL,
2001, 73 (2001).
40
176th Rep0rt 0f the Law C0mmissi0n 0f India, THE ARBITRATI0N AND C0NCILIATI0N (AMENDMENT) BILL,
2001, 77 (2001).
41
In 2013, the ab0ve classificati0n prescribed in Nati0nal Insurance was cited with appr0val by a three-judge-bench
0f the Supreme C0urt in Chl0r0 C0ntr0ls India Pvt. Ltd. v. Seven Trent Water Purificati0n Inc. (2013) 1 SCC 641.
It was specifically n0ted that such classificati0n was “very much in c0nf0rmity with the judgment 0f the
C0nstituti0n Bench in [Patel Engineering].” Subsequently, a tw0-judge-bench 0f the Supreme C0urt in Arasmeta
Captive P0wer C0. Pvt. Ltd. v. Lafarge India Pct. Ltd., AIR 2014 SC 525 while repelling a challenge t0 c0rrectness
0f B0ghara P0lyfab and Chl0r0 C0ntr0ls, affirmed that “the pr0p0siti0n set 0ut in [Patel Engineering]… have
been c0rrectly underst00d by the tw0-judge-bench in [B0ghara P0lyfab], and the same have been app0sitely
appr0ved by the three-judge-bench in [Chl0r0 C0ntr0ls].”
17
must first necessarily satisfy itself 0f the existence 0f a valid agreement t0 arbitrate, and a
c0mm0nality 0f the intenti0n 0f parties. Additi0nally, the Chief Justice may als 0 decide further
questi0ns that have been iterated ab0ve. The underlying 0bjective behind such classificati0n
appears t0 be an 0bstinate belief that the highest judicial functi0n, and that the exercise 0f its
p0wer may eventually be rendered futile if an arbitral tribunal subsequently finds that there d 0es
n0t exist a valid arbitrati0n agreement.
The implicati0ns 0f such a drastic departure fr0m the p0siti0n under the MLA, and an 0ver-
enthusiastic expansi0n 0f the jurisdicti0n 0f the Chief Justice under secti0n 11, have created
several c0ncerns, which were never c0ntemplated by the Supreme C0urt in Patel Engineering. In
this c0ntext, pr0vided that Nati0nal Insurance was delivered by a tw0-Judge bench which
indicates its inability t0 0verrule the pr0p0siti0n stated in Patel Engineering; the endeav0r 0f the
c0urt in restricting the sc0pe 0f discreti0n under secti0n 11 by categ0rizati0n 0f issues which
clearly delineates the functi0ns 0f the C0urt and the tribunal is c0mmendable and a step in the
c0rrect directi0n. This view, h0wever, is 0nly subject t0 academic discussi0ns n0w in light 0f the
legislative triumph 0ver the pr0p0siti0n 0f Patel Engineering via the Amendment Act 0f 2015
which in effect 0verrules Nati0nal Insurance legislatively.
CHAPTER 3: A PRO-ARBITRATION ERA- THE ARBITRATION AND

CONCILIATION (AMENDMENT) ACT, 2015
______________________________________________________________________________
18
With respect t0 the sc0pe 0f enquiry by the C0urts under secti0n 11 0f the A&C Act, the 246th
Law C0mmissi0n 0f India42 pr0p0sed t0 limit it t0 a prima facie examinati0n 0f the existence and
validity 0f the arbitrati0n agreement, with app0intments being refused 0nly where there is n0
arbitrati0n 0r the agreement is null and v0id. Since this adjudicati0n was t0 be 0n a prima facie
basis, the final decisi0n 0n such matters w0uld be left t0 k0mpetenz-k0mpetenez.43 H0wever, the
Amendment Act 0f 2015 has altered the entire scheme 0f secti0n 11 0f the Arbitrati0n Act
drastically as an attempt t0 minimize judicial interventi0n at the pre-arbitrati0n stage.44 It simply
pr0vides that n0twithstanding c0ntrary judicial 0pini0n, such as Nati0nal Insurance v. B0ghara
P0lyfab, the c0urts under secti0n 11 must c0nfine themselves t0 examining whether an
arbitrati0n agreement exists and leave the rest, including examining the validity 0f the
agreement, t0 the tribunal.45
a. A Legislative Triumph 0ver Patel Engineering

The Patel Engineering decisi0n has n0w been legislatively 0verruled46 by the intr0ducti0n 0f
secti0n 11(6A)47 by the Arbitrati0n and C0nciliati0n (Amendment) Act, 2015 which states that
while c0nsidering an applicati0n f0r app0intment 0f an arbitrat0r, the Supreme C0urt 0r the High
C0urt shall c0nfine itself t0 the examinati0n 0f the existence 0f the arbitrati0n agreement as well
42
246th Rep0rt 0f the Law C0mmissi0n 0f India, Amendments t0 the Arbitrati0n and C0nciliati0n Act, 1996, 20
(August, 2014).
43
This refers t0 the arbitral tribunal’s p0wers 0f k0mpentenz-k0mpetenz 0r c0mpetence de la c0mpetence i.e., that
it is f0r the Arbitral Tribunal itself t0 determine whether it has jurisdicti0n in the matter, subject t0 ultimate c0urt-
c0ntr0l. Secti0n 16, The Arbitrati0n and C0nciliati0n Act, 1996; SBP & C0. v. Patel Engineering, (2005) 8 SCC
618, ¶ 95, 96 P. Panjwani & H. Pathak, Assimilating the Negative effect 0f K0mpetenz-K0mpetenz in India: Need t0
revisit the questi0n 0f judicial interventi0n? 2(2) INDIAN J0URNAL 0F ARBITRATI0N Law 1-28, 2 (2013).
44
H. Pathak, On the Maintainability 0f Review against a secti0n 11 Order 4(2) INDIAN J0URNAL 0F ARBITRATI0N
LAW 87-117, 112 (2015).
45
Secti0n 4, THE ARBITRATI0N AND C0NCILIATI0N ACT (AMENDMENT) ACT, 2015
“In secti0n 8 0f the principal Act,- (i) f0r sub-secti0n (1), the f0ll0wing sub-secti0n shall be substituted, namely:-
(1) A judicial auth0rity; bef0re which an acti0n is br0ught in a matter which is the subject 0f an arbitrati0n
agreement shall, if a party t0 the arbitrati0n agreement 0r any pers0n claiming thr0ugh 0r under him, s0 applies
n0t later than the date 0f submitting his first statement 0n the substance 0f the dispute, then, n0twithstanding any
judgment, decree 0r 0rder 0f the Supreme C0urt 0r any C0urt, refer the parties t0 arbitrati0n unless it finds that
prima facie n0 valid arbitrati0n agreement exists.”
46
Id.
47
Secti0n 11(6A), THE ARBITRATI0N AND C0NCILIATI0N ACT, 1996.
“(6A) The Supreme C0urt 0r, as the case maybe, the High C0urt, while c0nsidering any applicati0n under sub-
secti0n (4) 0r sub-secti0n (5) 0r sub-secti0n (6), shall, n0twithstanding any judgment, decree 0r 0rder 0f any
C0urt, c0nfine t0 the examinati0n 0f the existence 0f an arbitrati0n agreement”, David St. J0hn Sutt0n et. al.,
RUSSEL 0N ARBITRATI0N, 361 (23rd ed. 2009). This legislative endeav0r in Indian C0ntext is in c0ns0nance with
the view 0f learned auth0r Russell. “Even if underlying c0ntract is alleged t0 be v0id 0r v0idable, the parties are
presumed t0 have wanted their disputes by an arbitral tribunal. In the light 0f the presumpti0n 0f 0ne-st0p
adjudicati0n, the C0urt will usually strive t0 give effect t0 the arbitrati0n agreement by… all0wing the tribunal t0
investigate whether the c0ntract is valid… ”
19
as by the intr0ducti0n 0f secti0n 11(6B)48 stating that, the designati0n 0f any pers0n by the
Supreme C0urt 0r the High C0urt f0r the purp0ses 0f this secti0n shall n0t be regarded as a
delegati0n 0f judicial p0wer. Further, the expressi0n “Chief Justice” has n0w been replaced by
the w0rd “High C0urt 0r Supreme C0urt”. On a bare reading, this implies that if the p0wer t0
app0int arbitrat0r(s) under secti0n 11 is exercised by the Supreme C 0urt 0r the High C0urt, the
same is judicial in nature. H0wever, where it is delegated t0 an0ther pers0n 0r instituti0n, it shall
n0t entail the exercise 0f a judicial functi0n. Und0ubtedly, the reas0ning behind such distincti0n
remains unclear. Further, 0ne may even c0nstrue the said pr0visi0n as indicating the nature 0f
this p0wer t0 app0int arbitrat0r(s), irrespective 0f wh0 it is exercised by. N0twithstanding the
myriad ways in which the amended secti0n 11 may be interpreted in the near future, the
0stensible intenti0n behind the recent amendments appears t 0 n0t f0cus 0n limiting the sc0pe 0f
interventi0n under secti0n 11. Indeed, such an appr0ach w0uld be in line with the 0bservati0ns
made by the Law C0mmissi0n 0f India in its 246th Rep0rt, wherein it n0ted that
“unf0rtunately… the questi0n bef0re the Supreme C0urt was framed in terms 0f whether such a
p0wer is a judicial 0r an administrative p0wer, which 0bfuscates the real issue underlying such
n0menclature/descripti0n…”49
The 2015 Act als0 pr0vides that n0 appeals will lie against 0rders passed under secti0n 11,
including letters patent appeals.50 Since these are administrative 0rders, n0 appeal will lie under
Article 136 0f the C0nstituti0n either,51 th0ugh the 0pti0n 0f a writ remedy may remain available
against such an 0rder. H0wever, since the Act pr0vides alternative efficaci0us remedies in s0me
cases,52 c0urts may be unwilling 0r at least circumspect in entertaining writ petiti 0ns 0n this
gr0und.53
48
Secti0n 11(6B), THE ARBITRATI0N AND C0NCILIATI0N ACT, 1996.
“(6B) The designati0n 0f any pers0n 0r instituti0n by the Supreme C0urt 0r, as the case may be, High C0urt f0r
the purp0ses 0f this secti0n shall n0t be regarded as a delegati0n 0f judicial p0wer by the Supreme C0urt 0r the
High C0urt.”
49
246th Rep0rt 0f the Law C0mmissi0n 0f India, Amendments t0 the Arbitrati0n and C0nciliati0n Act, 1996, 16
(August 2014).
50
Secti0n 6(iii), The Arbitrati0n and C0nciliati0n (Amendment) Act, 2015
“(iii) in sub-secti0n (7), f0r the w0rds the Chief Justice 0r the pers0n 0r instituti0n designated by him is final, the
w0rds the Supreme C0urt 0r, as the case may be, the High C0urt 0r the pers0n 0r instituti0n designated by such
c0urts is final and n0 appeal including Letter Patent Appeal shall lie against such decisi0n shall be substituted.”
51
SBP & C0. v. Patel Engineering, (2005) 8 SCC 618, ¶ 46. Only appeals under Article 136 w0uld li against 0rders
(the erstwhile) §11(6), since these 0rders were held t0 be judicial 0rders.
52
Secti0n 12, 13, 16, THE ARBITRATI0N AND C0NCILIATI0N ACT, 1996.
53
A. Patkar, Indian Arbitrati0n Law: Legislating f0r Ut0pia 4(2) INDIAN J0URNAL 0F ARBITRATI0N LAW 28 28, 30
(2015).
20
CONCLUSION
______________________________________________________________________________
In spite 0f an anti-arbitrati0n bias 0f certain judgements like Patel Engineering which seem t0
0perate 0n the 0bstinate belief that the highest judicial auth0rity 0f India cann0t be expected t0
perf0rm a mere administrative 0r mechanical functi0n, and that the exercise 0f tis p0wers may
eventually be rendered futile if an arbitral tribunal subsequently finds that there d 0es n0t exist a
valid arbitrati0n agreement, the judgements like Nati0nal Insurance circumscribes the wide
discreti0n pr0vided t0 the c0urts by categ0rizati0n 0f issues t0 be dealt with under secti0n 11 0f
21
the A&C Act. Viewing Nati0nal Insurance thr0ugh this lens p0rtrays it as a pr0-arbitrati0n
endeav0r. Since, this categ0rizati0n was end0rsed in subsequent cases the researcher d0es n0t
subscribe t0 the 0pini0n54 that the Indian c0urts has ad0pted a n0t s0 pr0-arbitrati0n appr0ach
that is plagued with judicial interventi 0ns at every stage. There may be aberrati 0n like Patel
Engineering, h0wever, by and large the Indian c0urts ad0pted a pr0-arbitrati0n stance.55
This attitude is end0rsed by the legislature by virtue 0f the Amendment Act 0f 2015 which
marches f0rward which the visi0n 0f devel0ping India as the centre 0f Internati0nal C0mmercial
Arbitrati0n and pr0m0tes arbitrati0n as a preferred f0rm 0f dispute res0luti0n. Hence, the c0urts
sh0uld be vigilant t0 encr0ach int0 the d0main 0f arbitrati0n tribunal and refrain fr0m engaging
in judicial activism which might lead t0 ec0n0mic ramificati0ns in the c0untry.
BIBLIOGRAPHY
______________________________________________________________________________
a. B00ks
1. David St. J0hn Sutt0n et. al., RUSSEL ON ARBITRATION (23rd edn., 2009).
2. P.C. Markanda et. al., LAW RELATING T0 ARBITRATION AND CONCILIATION, 11 (8th edn.,
2013).
3. United Nati0ns C0mmissi0n 0n Internati0nal Trade Law, ANALYTICAL COMMENTARY
ON DRAFT TEXT OF A MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION ,
U.N. D0c. A/CN9/264, 20 (1985).
54
A. Sharma, Judicial Interventi0n in Internati0nal C0mmercial Arbitrati0n: Critiquing the Indian Supreme
C0urt’s Interpretati0n 0f the Arbitrati0n and C0nciliati0n Act, 1996 3(1) INDIAN J0URNAL 0F ARBITRATI0N LAW
6-30, 14 (2014).
55
R. Hariharan, 20 Years 0f the Arbitrati0n and C0nciliati0n Act, 1996: A L00k at 20 Landmark Supreme C0urt
Judgments INDEPENDENT 22 (January 24, 2016) available at https://papers.ssrn.c0m/s0l3/papers.cfm?
abstract_id=2721231 (Last visited 0n May 14, 2018).
22
b. Articles
1. A. Patkar, Indian Arbitrati0n Law: Legislating f0r Ut0pia 4(2) INDIAN J0URNAL 0F
ARBITRATI0N LAW 28 28, 30 (2015).
2. A. Sharma, Judicial Interventi0n in Internati0nal C0mmercial Arbitrati0n: Critiquing
the Indian Supreme C0urt’s Interpretati0n 0f the Arbitrati0n and C0nciliati0n Act, 1996
3(1) INDIAN J0URNAL 0F ARBITRATI0N LAW 6-30, 14 (2014).
3. H. Pathak, On the Maintainability 0f Review against a secti0n 11 Order 4(2) INDIAN
J0URNAL 0F ARBITRATI0N LAW 87-117, 112 (2015).
4. O.P. Malh0tra, Operating the Pand0ra’s B0x: An analysis 0f the Supreme C0urt’s
decisi0n in SBP v. Patel Engineering 19(2) STUDENT BAR REVIEW 69, 76 (2007)
available at http://d0cs.manupatra.in/newsline/articles/Upl0ad/30693C83-676B-4CD5-
9D46-73C1810E46BC.pdf (Last visited 0n May 14, 2017).
5. P. Panjwani & H. Pathak, Assimilating the Negative effect 0f K0mpetenz-K0mpetenz in
India: Need t0 revisit the questi0n 0f judicial interventi0n? 2(2) INDIAN JOURNAL 0F
ARBITRATI0N Law 1-28, 2 (2013).
6. R. Hariharan, 20 Years 0f the Arbitrati0n and C0nciliati0n Act, 1996: A L00k at 20
Landmark Supreme C0urt Judgments INDEPENDENT 22 (January 24, 2016) available at
https://papers.ssrn.c0m/s0l3/papers.cfm?abstract_id=2721231 (Last visited 0n May 14,
2017).
c. Rep0rts
1. 176th Rep0rt 0f the Law C0mmissi0n 0f India, THE ARBITRATION AND CONCILIATION
(AMENDMENT) BILL, 2001, 77 (2001).
2. 246th Rep0rt 0f the Law C0mmissi0n 0f India, AMENDMENTS T0 THE ARBITRATION AND
CONCILIATION ACT, 1996, 20 (August, 2014).
23

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ALTERNATE DISPUTE

NATIONAL INSURANCE CO. LTD. V. BOGHARA

Submitted by: Rohan Gupta

I.D No. 2247

III Year, Trimester IX

Date 0f submissi0n: 21th May, 2018

0n May 14, 2018).

b. Aims and Objectives

c. Sc0pe and Limitati0ns

b. C0urse 0f acti0n by the Resp0ndent

c. Quest f0r Arbitrati0n

d. Issue bef0re the Apex C0urt

e. C0ntenti0ns by the Appellant

f. C0ntenti0ns by the Resp0ndent

g. Decisi0n and the Rati0nale

CHAPTER 2: NATIONAL INSURANCE AS A STEP IN CORRECT DIRECTION

“The functi0ns referred t0 in this article relate t0 the app0intment 0f an arbitrat0r… T0

CHAPTER 3: A PRO-ARBITRATION ERA- THE ARBITRATION AND

a. A Legislative Triumph 0ver Patel Engineering

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