Vous êtes sur la page 1sur 3

CASE NAME CITATION RELEVANT PARA

Vikrant Tyres Limited ILR 2005 27. The judicial remedy Under Section 45
and Anr. KARNATAKA pertains to pre arbitral stage. A party to an
Vs. 4738 international arbitration if legally
Techno Export Foreign aggrieved can approach the Court of his
Trade Company natural
Limited and Ors. jurisdiction to avoid the arbitration on the
grounds that the agreement is null and
void,
inoperative or incapable of being
performed. The grounds mentioned in
Section 34(2)
(a)(i)(ii)(v)(b)(i) and (ii) corresponding
with Article 34(2)(a)(i)(iv)(b)(i) and (ii) of
UNCITRAL and the grounds mentioned in
Article 36 and Section 48 except Article
36(1)
(v) and Section 48(1)(e) perhaps constitute
valid grounds Under Section 45 to declare
the arbitration agreement is null and void
inoperative or incapable of being
performed.
An order passed Under Section 45 against
conducting arbitration is a comprehensive
remedy and such an order binds both the
parties. The party who suffers such order
Under Section 45 is totally debarred from
resorting to arbitration not only in the
country
in which the order is passed but also in any
country which is a member to the
international treaty in that behalf. The
order passed Under Section 45 and 48 are
appealable Under Section 50.
Shin-Etsu Chemical Co. AIR2005SC3766 14. The finding of the court that the
Ltd. arbitration agreement is valid, operative
Vs. and
Aksh Optifibre Ltd. and enforceable, if in favour of the party setting
Anr. up the arbitration agreement, is not
appealable under Section 50 as a matter of
legislative policy. Refusing to refer parties
to arbitration under Section 45, is however,
made appealable under Section 50(1)(a) of
the Act. Even after the court takes a prima
facie view that the arbitration agreement is
not vitiated on account of factors
enumerated in Section 45, and the
arbitrator upon a
full trial holds that there is no vitiating
factor in the arbitration agreement and
makes
an award, such an award can be challenged
under Section 48(1)(a). The award will be
set aside if the party against whom it is
invoked satisfies the court inter alia that
the
agreement was not valid under the law to
which the parties had subjected it or under
the law of the country where the award was
made. The two basic requirements,
namely, expedition at the pre-reference
stage, and a fair opportunity to contest the
award after full trial, would be fully
satisfied by interpreting Section 45 as
enabling the
court to act on prima facie view.

52. Whether such a decision of the judicial


authority or the court of refusal to make a
reference on grounds permissible under
Section 45 of the Act would be subjected
to
further reexamination before the arbitral
tribunal or the court. In which eventually
the
award comes up for enforcement in
accordance with Section 48(1)(a) of the
Act is a
legal question of sufficient complexity and
in my considered opinion since that
question
does not directly arise on the facts of the
present case, it should be left upon for
consideration in an appropriate case where
such a question is directly raised and
decided by the court.
Chloro Controls India 127.5. Dharmadhikari, J., the third
(P) Ltd. v. Severn Trent member of the Bench, while agreeing with
Water Purification Inc. the view of Srikrishna, J. and noticing
(Shin-Etsu Chemical Co. case [(2005) 7
SCC 234] , SCC 278, para 111)
“111. … Where a judicial authority
or the court refuses to make a reference
on the grounds available under Section
45 of the Act, it is necessary for the
judicial authority or the court which is
seized of the matter to pass a reasoned
order as the same is subject to appeal to
the appellate court under Section
50(1)(a) of the Act and further appeal to
this Court under sub-section (2) of the
said section”,
expressed no view on the issue of prima
facie or finality of the finding recorded on
the pre-reference stage, he left the question
open in the following paragraph: (SCC p.
278, para 112)
“112. Whether such a decision of
the judicial authority or the court, of
refusal to make a reference on grounds
permissible under Section 45 of the Act
would be subjected to further re-
examination before the Arbitral
Tribunal or the court in which
eventually the award comes up for
enforcement in accordance with Section
48(1)(a) of the Act, is a legal question of
sufficient complexity and in my
considered opinion since that question
does not directly arise on the facts of the
present case, it should be left open for
consideration in an appropriate case
where such a question is directly raised
and decided by the court.”