7. Arbitration agreement.—(1) In this Part, “arbitration agreement” means an agreement by the
parties to submit to arbitration all or certain disputes which have arisen or which may arise between them
in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of
a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication 1
[including
communication through electronic means] which provide a record of the agreement; or
1. Ins. by Act 3 of 2016, s. 3 (w. e. f. 23-10-2015).
8
(c) an exchange of statements of claim and defence in which the existence of the agreement is
alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing and the reference is such as to make that arbitration
clause part of the contract.
8. Power to refer parties to arbitration where there is an arbitration agreement.—1
[(1)A judicial
authority, before which an action is brought in a matter which is the subject of an arbitration agreement
shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not
later than the date of submitting his first statement on the substance of the dispute, then, 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.]
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by
the original arbitration agreement or a duly certified copy thereof:
2
[Provided that where the original arbitration agreement or a certified copy thereof is not available
with the party applying for reference to arbitration under sub-section (1), and the said agreement or
certified copy is retained by the other party to that agreement, then, the party so applying shall file such
application along with a copy of the arbitration agreement and a petition praying the Court to call upon
the other party to produce the original arbitration agreement or its duly certified copy before that Court.]
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is
pending before the judicial authority, an arbitration may be commenced or continued and an arbitral
award made.
STATE AMENDMENT
Jammu and Kashmir and Ladakh (UTs).—
Insertion of section 8A and section 8B.—After section 8, insert the following sections, namely:–
“8A. Power of the court, seized of petitions under sections 9 or 11 of the Act, to refer the
dispute to Mediation or Conciliation.—(1) If during the pendency of petitions under sections 9 or
11 of the Act, it appears to the court, that there exists elements of a settlement which may be
acceptable to the parties, the court may, with the consent of parties, refer the parties, for resolution of
their disputes, to,-
(a) mediation; or
(b) conciliation.
(2) The procedure for reference of a dispute to mediation is as under–
(a) where a dispute has been referred for resolution by recourse to mediation, the procedure
framed under that Act shall apply;
(b) in case of a successful resolution of the dispute, the Mediator shall immediately forward
the mediated settlement to the referral court;
(c) on receipt of the mediated settlement, the referral court shall independently apply its
judicial mind and record a satisfaction that the mediated settlement is genuine, lawful, voluntary,
entered into without coercion, undue influence, fraud or misrepresentation and that there is no
other legal impediment in accepting the same;
(d) the court shall record a statement on oath of the parties, or their authorised
representatives, affirming the mediated settlement as well as a clear undertaking of the parties to
abide by the terms of the settlement;
1. Subs. by Act 3 of 2016, s. 4, for sub-section (1) (w. e. f. 23-10-2015).
2. Ins. by s. 4, ibid. (w.e.f. 23-10-2015).
9
(e) if satisfied, the court shall pass an order in terms of the settlement;
(f) if the main petition, in which the reference was made is pending, it shall be disposed of by
the referral court in terms thereof;
(g) if the main petition, in which the reference was made stands disposed of, the mediated
settlement and the matter shall be listed before the referral court, which shall pass orders in
accordance with clauses (iii), (iv) and (v);
(h) such a mediated settlement, shall have the same status and effect as an arbitral award and
may be enforced in the manner specified under section 36 of the Act.
(3) With respect to reference of a dispute to conciliation, the provisions of Part II of this Act shall
apply as if the conciliation proceedings were initiated by the parties under the relevant provision of
this Act.
8B. Power of the court, seized of matters under sections 34 or 37 of the Act, to refer the
dispute to Mediation or Conciliation.—(1) If during the pendency of a petition under section 34 or
an appeal under section 37 of the Act, it appears to the court, that there exists elements of a settlement
which may be acceptable to the parties, the court may, with the consent of parties, refer the parties,
for resolution of their disputes, to:–
(a) mediation; or
(b) conciliation.
(2) The procedure for reference of a dispute to mediation is as under:-
(a) where a dispute has been referred for resolution by recourse to mediation, the procedure
framed under the Act shall apply;
(b) in case of a successful resolution of the dispute, the Mediator shall immediately forward
the mediated settlement to the referral court;
(c) on receipt of the mediated settlement, the referral court shall independently apply its
judicial mind and record a satisfaction that the mediated settlement is genuine, lawful,
voluntary, entered into without coercion, undue influence, fraud or misrepresentation and that
there is no other legal impediment in accepting the same;
(d) the court shall record a statement on oath of the parties, or their authorized
representatives, affirming the mediated settlement, a clear undertaking of the parties to abide by
the terms of the settlement as well as statement to the above effect;
(e) if satisfied, the court shall pass an order in terms of the settlement;
(f) if the main petition, in which the reference was made is pending, it shall be disposed of
by the referral court in terms thereof;
(g) if the main petition, in which the reference was made stands disposed of, the mediated
settlement and the matter shall be listed before the referral court, which shall pass orders in
accordance with clauses (iii), (iv) and (v);
(h) such a mediated settlement, shall have the status of a modified arbitral award and may
be enforced in the manner specified under section 36 of the Act.
(3) With respect to reference of a dispute to conciliation, the provisions of Part III of the Act,
shall apply as if the conciliation proceedings were initiated by the parties under the relevant provision
of this Act.”
10
[Vide the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, notification
No. S.O. 1123(E) dated (18-3-2020) and Vide Union Territory of Ladakh Reorganisation (Adaptation of
Central Laws) Order, 2020, notification No. S.O.3774(E), dated (23-10-2020).]
9. Interim measures, etc., by Court.—1
[(1)]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—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of
arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the
arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subjectmatter of the dispute in arbitration, or as to which any question may arise therein and authorising
for any of the aforesaid purposes any person to enter upon any land or building in the possession
of any party, or authorising any samples to be taken or any observation to be made, or experiment
to be tried, which may be necessary or expedient for the purpose of obtaining full information or
evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and
convenient,
and 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.
2
[(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any
interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a
period of ninety days from the date of such order or within such further time as the Court may determine.
(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under
sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided
under section 17 efficacious.]