Summary
The Court appointed the same sole arbitrator for disputes under two construction-management agreements providing for New Delhi arbitration. A prima facie reading distinguished those disputes from the share-purchase agreements’ Singapore arbitration clauses. Referral required limited judicial scrutiny, rather than mechanical acceptance or a merits trial. The arbitrator retained authority to determine the true source of the dispute and, if appropriate, leave the parties to SIAC proceedings. Whether to consolidate the two proceedings and issue a composite award was also left to the arbitrator.
Issues
- Whether the construction-management or share-purchase arbitration clauses governed the disputes for purposes of appointment.
- What scrutiny was permissible under Section 11 and whether the two arbitrations should be consolidated.
Provisions considered
- Section 11(6), (6-A) and (12), Arbitration and Conciliation Act, 1996The Court conducted limited prima facie scrutiny of the arbitration agreements and their relation to the dispute, then appointed the same sole arbitrator in both petitions. (¶¶ 11, 17, 18, 19, 20, 25, 26, 27, 28, 29, 30, 31, 32, 35, 36)
- Section 16, Arbitration and Conciliation Act, 1996Referral preserved the tribunal’s authority to examine the dispute’s true contractual source and jurisdiction, including leaving the parties to the alternative agreed forum if warranted. (¶¶ 13, 18, 33)
Held
- The Section 11 inquiry is limited but remains judicial. It examines the written arbitration agreement and a prima facie arbitrable case, permitting exclusion of manifestly non-arbitrable or unrelated claims without a mini-trial. Arguable jurisdictional questions ordinarily belong before the tribunal. (¶¶ 17, 18, 19)
- The two sets of subsisting agreements required harmonious reading. The share-purchase agreements primarily transferred ownership, while the construction-management agreements operationalised construction obligations and the claimed fee. The former clauses had no overriding breadth that displaced the later construction-management clauses. The present payment dispute prima facie fell under the latter agreements. (¶¶ 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32)
- The claimant’s compliance with conditions precedent and entitlement to the fee were factual matters for the tribunal. If the arbitrator ultimately found that the real dispute arose under the share-purchase agreements, the proceedings could be wound up with liberty to seek the SIAC remedy; referral did not finally determine the merits or that jurisdictional issue. (¶¶ 27, 33)
- Although connected, the construction-management agreements remained separate. Their shared fee computation made appointment of the same sole arbitrator appropriate to avoid conflicting outcomes and wasted resources. Consolidation, a composite award and procedural modalities were left to the arbitrator. Both petitions were allowed and former Supreme Court Justice R.V. Raveendran appointed, with fees as directed under the Fourth Schedule. (¶¶ 34, 35, 36, 37)
Result
Both petitions allowed; Justice (Retd.) R.V. Raveendran appointed sole arbitrator in both matters. Consolidation and procedural arrangements left to him, with jurisdictional and merits questions preserved as specified.