Section 45 Arbitration Act: Power of judicial authority to refer parties to arbitration

Section 45 of Arbitration and Conciliation Act, 1996: Power of judicial authority to refer parties to arbitration

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

Notwithstanding anything contained in Part I or in the Code of Civil Procedure , 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void , inoperative or incapable of being performed.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Arbitration Sec 2(1)(a)

Legal Commentary & Landmark Judgments: Section 45

Section 45 mandates judicial authorities to refer parties to arbitration in foreign-seated arbitrations governed by the New York Convention unless the agreement is null and void, inoperative, or incapable of being performed.

Arbitration Framework & Scope: Under Section 45, when an action is brought before a judicial authority in a matter covered by a New York Convention arbitration agreement, the court shall, at the request of one of the parties, refer the parties to arbitration.
Core Legal Standard: The only exceptions are where the court finds that the said agreement is null and void, inoperative, or incapable of being performed.

Key Landmark Precedents:

Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. (2005) 7 SCC 234: The Supreme Court held that the referral under Section 45 requires only a prima facie determination of validity; the final decision on agreement validity vests with the foreign arbitral tribunal.
World Sport Group (Mauritius) Ltd. v. MSM Satellite (Singapore) Pte. Ltd. (2014) 11 SCC 639: Held that allegations of fraud do not render a foreign arbitration agreement inoperative or incapable of being performed under Section 45, upholding the arbitravility of complex cross-border commercial disputes.

Legal Commentary:

Section 45 provides pro-arbitration enforcement for international commercial agreements. The statutory mandate 'shall refer' prevents domestic parties from evading foreign arbitration clauses through domestic civil litigation.

Section 45: Power of judicial authority to refer parties to arbitration

Section 45 of Arbitration and Conciliation Act, 1996: Power of judicial authority to refer parties to arbitration

Legal Commentary & Landmark Judgments: Section 45