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Section 11(6A) Arbitration Act Does Not Prevent Courts from Considering Issue of Arbitrability: Supreme Court

[22 July 2022] Despite the insertion of Section 11(6A) in the Arbitration and Conciliation Act 1996, the Courts are not denuded of the power to examine the issue of non-arbitrability and jurisdiction at the stage of considering application of appointment of arbitrators under Section 11, held the Supreme Court recently.

In this case Indian Oil Corporation Limited v. NCC Limited, the Supreme Court expressed disagreement with the view of the High Court that after the insertion of Sub­Section (6­A) in Section 11 of the Arbitration Act, scope of inquiry by the Court in Section 11 petition is confined only to ascertain as to whether or not a binding arbitration agreement exists qua the parties before it.

The Court held that although the issues of non-arbitrability and jurisdiction of the tribunal are to be ordinarily decided by the arbitral tribunal, however, if the facts are very clear and glaring and in view of the specific clauses, those issues can also be decided by the Court at the stage of appointing an arbitrator.

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