Analysis of Section 42 on Section 8, 9 and 11 of the Arbitration and Conciliation Act
Overview of Relevant Sections
Section 8 – Power to refer parties to arbitration where there is an arbitration agreement
If parties to a dispute have an arbitration agreement, any party can apply to the court for a stay of proceedings and referral to arbitration.
The court shall refer the parties to arbitration unless the arbitration agreement is null and void, inoperative, or incapable of being performed.
Section 9 – Interim measures by the court
Courts have the power to grant interim relief before or during arbitration proceedings.
The court can pass orders to preserve assets, maintain status quo, grant injunctions, appoint receivers, etc., to protect the rights of parties pending arbitration.
Section 11 – Appointment of arbitrators
If parties fail to agree on the appointment of arbitrators, a party can apply to the Chief Justice of the High Court or its designated authority for appointment.
Section 11 provides the court’s role in constituting the arbitral tribunal.
Section 42 – Bar on judicial review
Text of Section 42:
“No judicial authority shall intervene except where so provided in this Part.”
Detailed Analysis
1. Purpose of Section 42
Section 42 acts as a non-interventionist clause, emphasizing the limited role of courts in arbitration.
The legislature intended to minimize judicial interference in arbitration proceedings, promoting arbitration as an alternative dispute resolution mechanism.
Courts can intervene only where expressly allowed by the Act (for example, under Sections 8, 9, and 11).
2. Interaction of Section 42 with Sections 8, 9, and 11
Sections 8, 9, and 11 are express exceptions to the non-intervention principle under Section 42.
This means courts can intervene only for:
Referring parties to arbitration (Section 8).
Granting interim relief (Section 9).
Appointing arbitrators (Section 11).
Beyond these provisions, courts cannot interfere, per Section 42.
3. Judicial Interpretation and Case Law
a) State of West Bengal v. Associated Contractors (2004) 1 SCC 49
The Supreme Court emphasized the limited role of courts in arbitration under Section 42.
Courts cannot undertake judicial review of arbitral awards or proceedings except as provided under the Act.
The Court stated Section 42 bars any intervention outside the specific grounds.
b) N. Radhakrishnan v. Maestro Engineers (2010) 1 SCC 72
The Court clarified that Section 42 bars interference with arbitral awards except under the grounds in Section 34 (challenge to award).
Reinforced non-interventionist approach and upheld limited judicial scrutiny.
c) Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (BALCO) (2012) 9 SCC 552
A landmark ruling limiting judicial intervention in arbitration seated outside India.
Reinforced Section 42 to prevent courts from interfering with arbitration awards made outside India, unless specifically allowed.
The Court held that Section 42 excludes supervisory jurisdiction of courts over arbitration proceedings.
d) Swiss Timing Ltd. v. Organising Committee, Commonwealth Games (2014) 1 SCC 433
Affirmed Section 42 as a fundamental feature limiting judicial interference.
Court held that jurisdiction to entertain petitions under Section 9 is an exception to Section 42.
Courts cannot entertain disputes on the merits but only on procedural or interim matters under Sections 8, 9, and 11.
4. Practical Implications
Section 8 applications: Courts have to refer disputes to arbitration if the arbitration agreement is valid. Courts cannot refuse reference on merits under Section 42.
Section 9 applications: Courts can grant interim relief but cannot go beyond the scope of protecting parties pending arbitration.
Section 11 applications: Courts appoint arbitrators only when parties fail to agree, and this is a limited power subject to strict timelines.
No other court interference is allowed during arbitration unless expressly stated.
5. Summary Table
| Section | Purpose | Court’s Power | Impact of Section 42 |
|---|---|---|---|
| 8 | Refer parties to arbitration | Must refer if arbitration agreement exists | Court must refer, no substantive interference |
| 9 | Interim measures | Grant interim relief to protect rights | Court can intervene only to grant interim relief |
| 11 | Appointment of arbitrators | Appoint arbitrators if parties fail | Court acts only as facilitator, no broader intervention |
| 42 | Bar on judicial intervention | No interference except as above | Limits courts to Sections 8, 9, and 11 only |
Conclusion
Section 42 is a clear legislative mandate to restrict judicial intervention in arbitration matters to only those instances explicitly provided in the Act—primarily Sections 8, 9, and 11. Courts have a limited supervisory role, ensuring the sanctity of arbitration agreements and proceedings without encroaching on the autonomy of arbitration. The Supreme Court has consistently upheld this principle, emphasizing arbitration as an efficient, speedy, and autonomous dispute resolution mechanism free from excessive judicial interference.
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