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VIKASH GOEL
SEMESTER VI
ROLL NO. 172
SUBMITTED ON
18TH FEBRUARY, 2015
Vikash Goel
Semester VI TH
Roll no. 172
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Acknowledgement2
Introduction.........4
Objective6
Research methodology6
Law applicable to question of arbitrability7
Substantive rules on objective arbitrability8
Duty t deal with lack of arbitrability ex-officio9
The Non- Arbitrability doctrine.10
Case law relating to Arbitrability.13
Conclusion ...15
Bibliography.....15
arbitrability
determines the point at which the exercise of contractual freedom ends and the public mission of
adjudication begins. It involves the simple question of what types of issues can and cannot be
submitted to arbitration. Party autonomy espouses the right of parties to submit any dispute to
arbitration. It is the parties right to opt out of the normal national court jurisdiction. National
laws often impose restrictions or limitations on what matters can be referred to and resolved by
arbitration. For example, states or state entities may not be allowed to enter into arbitration
agreements at all or may require a special authorization to do so. This is called SUBJECTIVE
ARBITRABILITY. More important than the restrictions relating to the parties are limitations
based on the subject matter in issue. This is OBJECTIVE ARBITRABILITY. Certain disputes
may involve such sensitive public policy issues that it is felt that they should only be dealt with
by the judicial authority of state courts. An obvious example is criminal law which is generally
the domain of the national courts. These disputes are not capable of settlement by arbitration.
This restriction on party autonomy is justified to the extent that arbitrability is a manifestation of
national or international, public policy. Consequently, arbitration agreements covering those
matters will, in general, not be considered valid, will not establish the jurisdiction of the
arbitrators and subsequent award may not be enforced. In the U.S. the term arbitrability is
often used in a wider sense covering the whole issue of the tribunals jurisdiction.
To understand the prevailing international situation with regard to arbitrability, three important
aspects are to be studied. They are-
ii) The limitations imposed in different countries, or Substantive Rules on Objective arbitrability;
and
ARBITRABILITY DEFINED
Outside the United States, the term arbitrability has a reasonably precise and limited meaning:
i.e., whether specific classes of disputes are barred from arbitration because of national
legislation or judicial authority. Courts often refer to public policy as the basis of the bar.
Thus, the subject matter of the claim is the key to arbitrability in international arbitration, and
the question to be asked is, under the law of the place of arbitration or the state where award
enforcement is being sought, are the specific claims capable of settlement by arbitration or must
they be resolved in a national court?
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To know the basic concepts refund under income Tax Act, 1961,
To study the persons entitled to claim refund
To study the procedure for claiming refund,
To study the concept of interest on refund.
Research methodology
This work being a Doctrinal work is descriptive in nature. Secondary and Electronic resources have been
largely used to gather information and data on the topic.
Books and other reference materials as suggested by Faculty of Taxation have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been referred to.
Disputes relating to rights and liabilities which give rise to or arise out of criminal
offences;
Guardianship matters;
Testamentary matters;
Eviction or tenancy matters governed by special statutes where the tenant enjoys statutory
protection against eviction and only the specified courts are conferred jurisdiction to
grant eviction or decide on the disputes. 5
ARBITRABLE ISSUES
Where a judicial proceeding is commenced in a matter which is subject matter of an arbitration
agreement, the judicial forum is bound to refer the matter for arbitration by the arbitral tribunal.
This provision implies that if the matter is an arbitrable matter, and is covered by the arbitration
agreement, the matter must be decided by arbitration rather than by adjudication. The underlying
crucial issue for this provision is what exactly is an arbitrable matter, or what are the limits to
arbitrability?
Courts in several jurisdictions have rendered rulings on arbitrability. Matters that can be settled
by arbitration include:
In Haryana Telecom Limited V. Sterlite Industries India Limited 6the Supreme Court
held that Section 8(1) of Arbitration and Conciliation Act, 1996 provides that the judicial
authority before whom an action is brought in a matter, will refer the parties to arbitration
the same matter in accordance with the arbitration agreement. This, however, postulates,
in the opinion of the court, that what can be referred to the arbitrator is only that dispute
or matter which the arbitrator is competent or empowered to decide; The claim in a
petition for winding up is not for money. The petition for winding up is to be filed under
the Companies Act. The company has become commercially insolvent and therefore,
should be wound up. The power to order winding up of a company is contained under
the Companies Act and is conferred on the court. An arbitrator, notwithstanding any
agreement between the parties, would have no jurisdiction to order winding up of a
company. The matter which is pending before the High Court in which the application
In Olympus Superstructures (P) Limited V. Meena Vijay Khetan 7the Supreme Court
considered whether an arbitrator has the power and jurisdiction to grant specific
performance of contracts relating to immoveable property. In this regard the Supreme
Court held that there is no prohibition in the Specific Relief Act, 1963 that issues relating
to specific performance of contract relating to immoveable property cannot be referred to
arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation
Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or Section
48(5)(b) of the English Arbitration Act, 1996 which contained a prohibition relating to
specific performance of contracts concerning immoveable property.
In Keventer Agro Limited V. Seegram Co. Limited Apo 498 of 1997 the Supreme Court
held that disputes arising out of illegal agreements and disputes relating to status, such as
divorce, which cannot be referred to arbitration. However if in respect of the facts
relating to a criminal matter, say, physical injury, if there is a right of damages for
personal injury, then such a dispute can be referred to arbitration. Similarly a husband
and wife may, refer to arbitration the terms on which they shall separate, because they
can make a valid agreement between themselves on that matter.
In Chiranjilal Shrilal Goenka V. Jasjit Singh 8the Supreme Court held that grant of
probate is a judgment in rem and is conclusive and binding not only the parties but also
the entire world; and therefore, courts alone will have exclusive jurisdiction to grant
probate and an arbitral tribunal will not have jurisdiction even if consented concluded to
by the parties to adjudicate up on the proof or validity of the will.
CONCLUSION
Thus we can conclude that arbitrability is an evolving topic with each country adopting different
stand on different matters but a constant behavior can be seen due to compliance with New York
Convention on arbitration. The Indian Law itself does not specify the exhaustive list on matters
arbitrable but leave the issue to the arbitrator to decide under Section 8 of Arbitration and
Conciliation Act, 1996. Generally matters of public police or criminal nature are non- arbitrable
whereas all other matters are considered arbitrable for enabling speedy disposal of cases in the
country. There is need to further the scope of arbitrable subject- matter to include commercial
transaction including securities matter where both parties agree to it to enable speedy disposal.
An amendment to the act to specify clearly matters which may be arbitrable can be a step in the
right direction and clear all the doubts in the mind of parties. Generally it is observed that the
parties are unaware of the fact whether their disputes are arbitrableor not and go ahead with
arbitration after which the decision is annulled later on which lead to a wasteof time and money.
Therefore there is need for a proper source from where it can be determined whether matters are
arbitrable or not.
BIBLIOGRAPHY
Redfern and Hunter, Law and Practice of International Commercial Arbitration (4th
Edition Sweet
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