JUDICIAL INTERVENTION UNDER ARBITRATION

SECTION 5 OF ARBITRATION AND CONCILLIATION ACT, 1996;

“ Notwithstanding anything contained in any other law for the time being in
force, in matters governed by this Part, no judicial authority shall intervene
except where so provided in this Part.”

COURT INTERVENTION, WHEN AN ARBITRATION AGREEMENT EXISTS;

Generally, Court of other Judicial Authority does not intervene in any
arbitration proceedings or arbitration award. The law of non-intervention is
based on the premise that when parties to any commercial contract by their
own consent have decided to resolve their disputes, by way of mediation and
conciliation through the process of arbitration, then the judiciary would not
have any reason to intervene in this proceeding of arbitration.
SECTION 8
provides that if an Arbitration Agreement exits between the parties , the
judicial courts, shall at first instant , refer any matter brought before them , for
consideration through arbitration. However, the courts are empowered to
consider any matter, where it feels that prima facie no valid arbitration
agreement exists between the parties.
In this case , any one of the parties is to make an application to the court
accompanying with the Original Arbitration Agreement or duly certified copy
of Agreement.
COURT INTERVENTION,WHEN ONE PARTY DOES NOT POSSESS COPY OF
ARBITRATION AGREEMENT;
The act empowers the court to entertain all such application for intervention in
matters of arbitration, where upon making application, the court is satisfied
that, the applying party does not possess the copy of Arbitration Agreement
and it not getting a copy, in its ordinary course , through the process of
arbitration , then it has power to intervene and give appropriate direction, `on
the prayer of one party to the other party, to produce the Original Arbitration
Agreement or its duly certified copy before the court. However, this small
intervention of the court directing other party to produce Original Arbitration
Agreement or certified true copy before court does not bar parties to refer the
case to Arbitration.
OTHER CIRCUMSTANCES OF COURT INTERVENTION IN ARBITRATION
PROCEEDINGS;
SECTION 34 of the Act, provides that the court has power to set aside any
arbitration award , when it is conclusively proved that;
1. Any party to arbitration has suffering some incapacity during the
proceedings; 2. Any arbitration agreement used for securing an arbitral award ,
is not valid under the law, if the agreement fail to the test of any indication
made under that law, to which the parties have made is subject to;
3. The arbitration proceedings or any arbitral award, in which arbitration
proceedings have not followed the fair practices of law and it is proved by any
party that one of the parties , was not given proper notice of the appointment
of Arbitrator;
4. If all parties to the dispute are not given proper intimation about
proceedings of arbitration;
5. If all parties are not given proper and fair opportunity to present their case,
before the arbitrators and when any party has lost its right of justice;
6. If arbitral award deals with any matter, which was not contemplated in the
arbitration agreement;
7. If the terms of reference , made in the arbitration agreement have been
misunderstood, mis-referred or overlooked while delivering an arbitral award;
8. If the composition of the arbitral award tribunal is not in conformity with
the agreement between the parties to the arbitration;
9. If the arbitration award has made decision decisions on such matters, which
is beyond the scope or course of submission to the arbitration. In such
situation , only that part of arbitral award , which is out of the context or
reference , may be set aside.
10. If the procedure followed by the arbitrators , is not matching with the
procedure agreed between the parties;
11. If the procedure followed by the arbitrators are against the policy
framework of the act;
12. The court shall also intervene when it concludes that the subject matter of
any arbitration agreement is such that, it cannot be decided or settled through
proceedings of arbitration.
13. The arbitration award was as delivered, is against or in conflict of the Public
Policy; [Most Important}
14. Any award as delivered , is influenced, or induced by fraud or corruption or
violating any provision of law;
15. If any arbitration award is in contravention of any fundamental policy of
Indian Law;
16. If any award is against the basic policy of morality, justice, or fairness;
17. An arbitral award which is not out of International Commercial Arbitration ,
can also be set aside by the appropriate court if the court finds that , the award
is impaired by the quality under the law or spoil or destroy the principles of
law, as it might appear invalid from the face of award. Thus, while going
through above examples , we know that the Judicial Courts in India have
enough power within the Act , to intervene and correct the arbitration
proceedings or arbitral award, if any wrongdoing is noticed by the competent
court.

LET’S DISCUSS COURT INTERVENTION THROUGH LATEST SUPREME COURT

JUDGEMENT; M/s. Ssangyong Engineering & Construction Co. Ltd. Vs. National
Highway Authority of India Limited ,Civil Appeal No. 4779 of 2019 the Supreme
Court held that “ ———when it comes to the Public Policy of India argument
based upon “ most basic notions of justice”, it is clear that this ground can be
attracted only in very exceptional circumstances when the conscience of the
court is shocked by infraction of fundamental notions or principles of justice.”
“ Further , a circular, unilaterally issued by one party, cannot possible bind the
other party to the agreement without that other party’s consent.——————
This being the case, it is clear that the majority award has created a new
contract for the parties applying the said unilateral Circular and by substituting
a workable formula under the agreement by another formula de hors the
agreement. This being the case, a fundamental principals of justice has been
breached, namely , that a unilateral addition or alteration of a contract can
never be foisted upon an unwilling party, nor can a party to the agreement be
liable to perform a bargain not entered into with the other party. Clearly such a
course of conduct would be contrary to fundamental principles of justice as
followed in this country and shocks the conscience of this court. THE HON’BLE
SUPREME COURT OF INDIA FURTHER SAID THAT; “ However , we repeat that
this ground is available only in very exceptional circumstances, such as the fact
situation in the present case. Under no circumstances can any court interfere
with an arbitral award on the ground that justice has not been done in the
opinion of the Court. That would be an entry into the merits of the dispute
which, as we have seen, is contrary to the ethos of Section 34 of the Act, 1996
as has been noted earlier in this judgement. The judgement of the Single Judge
and of the Division Bench of Delhi High Court are set aside. Consequently , the
majority award is also set aside. Under the Provisions of Section 34 of the Act,
1996 , the disputes that were decided by the majority ward would have to be
referred afresh to another arbitration. This would cause considerable delay and
be contrary to one of the important objectives of Act, 1996, namely speedy
resolution of disputes by the arbitral process under the Act,1996. Therefore , in
order to do complete justice between the parties, invoking our power under
Article 142 of the Constitution of India——–.”

CONCLUSION:
Our Judicial System has been burdened with crores of cases pending for justice.
The Judicial Proceedings in India are a lengthy proceeding , it takes a lot of time
and money. We know that for better business environment and for
development , we requires speedy dispute resolution system. Arbitration is one
of the best Alternate Dispute Resolution Procedure, parties to an Arbitration
Agreement refer all their disputes to arbitration for resolution. For an
arbitration proceeding there should be an Arbitration Agreement or an
Arbitration Clause in the main contract clearly mentioning that all disputes will
be referred to arbitration aroused due to any breach of terms and conditions of
main agreement. The parties to agreement will appoint Arbitrators and award
of arbitrators are binding on both parties and enforceable under court of law.
But in some case ,when there is apparent injustice to one party, award is
against public policy, arbitration agreement not followed properly , one any
suffers more than other due to award a competent court may intervene and set
aside Arbitration Award