Navigating the Maze: Understanding Arbitrator's Jurisdiction in Dispute Resolution

When disputes arise in business or personal matters, arbitration is often chosen as an alternative to court litigation. It's a process where an arbitrator, a neutral third party, makes a decision on the dispute. But what happens when there are questions about the arbitrator's authority to make that decision? This article breaks down the legal aspects of an arbitrator's jurisdiction in a way that’s easy to grasp.

What Exactly is Jurisdiction when it comes to Arbitration?

The following three aspects are crucial in determining if arbitration can proceed properly and if the arbitrator has the authority to make decisions in the dispute. The Arbitrator's Call on Jurisdiction

Imagine you're involved in an arbitration, and a question pops up - does the arbitrator have the authority to resolve this dispute? This is where Section 16 of the Arbitration and Conciliation Act comes into play. It allows the arbitrator to decide on his or her own jurisdiction.

1. Existence of a Valid Arbitration Agreement: 

Before any arbitration can take place, it is essential that there is an agreement between the parties to resolve disputes through arbitration. This agreement is usually a clause in a contract or a separate agreement. It must be clear and indicate the parties' intention to arbitrate disputes rather than going through the traditional court system.

2. Proper Constitution of the Arbitral Tribunal: 

The arbitral tribunal usually consists of one or three arbitrators. The way these arbitrators are selected is usually outlined in the arbitration agreement. It is crucial that this process is followed to the letter. Any deviation can raise questions about the legitimacy of the arbitral tribunal. For example, if an arbitrator is supposed to be selected by a third party and isn’t, a party could challenge the jurisdiction of the tribunal.

3. Matters Submitted in Accordance with the Agreement: 

Not all disputes may be arbitrable. The arbitration agreement may specify the types of disputes that can be arbitrated. If a dispute falls outside of this scope, the arbitral tribunal may not have the jurisdiction to make a decision on it. For example, if the arbitration agreement specifies that only disputes relating to the contract can be arbitrated, and a party brings a tort claim, the tribunal likely won’t have the jurisdiction to decide on it.

In summary, the jurisdiction of an arbitral tribunal is not automatic. It is contingent on a valid arbitration agreement, the proper constitution of the tribunal, and the subject matter of the dispute being in line with the arbitration agreement. Parties should be mindful of these aspects when entering into arbitration agreements and when initiating arbitration proceedings. Understanding these elements can help in ensuring that the arbitration process runs smoothly and that the final award is enforceable and free from challenges.

Section 16 of the Arbitration and Conciliation Act is a critical provision that empowers the arbitrator to address questions concerning their jurisdiction. This is known as the 'Kompetenz-Kompetenz' principle, which essentially means that the arbitrator has the competence to decide on their own competence.

The Two-Step Process

When a party raises an objection regarding the arbitrator’s jurisdiction, the arbitrator can decide on this as a preliminary issue. This means that before diving into the actual dispute, the arbitrator first determines whether they have the authority to do so.

Step One: The arbitrator examines the validity of the arbitration agreement, the constitution of the arbitral tribunal, and whether the matters submitted are in accordance with the arbitration agreement. If the arbitrator concludes that they don’t have jurisdiction, they will dismiss the case, and the parties can appeal this decision in court.

Step Two: If the arbitrator decides that they do have jurisdiction, they will proceed with the arbitration. The parties must wait until a final award is made before they can challenge the arbitrator's jurisdiction in court along with any other issues they have with the award.

The Significance for Parties Involved

This provision is significant for parties involved in arbitration as it ensures that only disputes that fall within the scope of the arbitration agreement are arbitrated. It prevents the wastage of time and resources on proceedings that are not within the arbitrator’s authority. Moreover, it provides a safeguard for parties to challenge the arbitrator’s decision on jurisdiction if they believe it is erroneous.

Balancing Efficiency and Fairness

Section 16 strikes a balance between efficiency and fairness in arbitration proceedings. By allowing the arbitrator to decide on their jurisdiction at the outset, it promotes the speedy resolution of disputes. At the same time, by allowing parties to challenge this decision at the end of the proceedings, it ensures that parties have recourse to justice if the arbitrator's decision on jurisdiction is flawed.

What if the Arbitrator decides he/she no jurisdiction to decide the matter?

When an arbitrator concludes that they lack the jurisdiction to adjudicate a dispute, it might seem like a dead end. However, the law has provisions to ensure that your case doesn't get lost in a jurisdictional maze. Section 37(2)(a) of the Arbitration and Conciliation Act comes to the rescue.

The Appeal Process

Under Section 37(2)(a), if an arbitrator dismisses a claim on the grounds of lacking jurisdiction, the aggrieved party has the right to appeal this decision in a court of law. This means that you can ask a court to review the arbitrator's decision and potentially overturn it.

When you appeal the arbitrator’s decision under Section 37(2)(a), the court will examine several factors:

• Validity of the Arbitration Agreement: The court will check if there is a valid arbitration agreement between the parties that covers the dispute in question.

• Scope of the Dispute: The court will assess whether the dispute falls within the scope of the arbitration agreement.

• Jurisdiction of the Arbitrator: The court will evaluate whether the arbitrator was correct in determining that they did not have jurisdiction.

Possible Outcomes from the Appeal 

There are generally two possible outcomes when you appeal an arbitrator’s decision on jurisdiction:

• The Court Upholds the Arbitrator’s Decision: If the court agrees with the arbitrator that they did not have jurisdiction, then you will need to seek alternative avenues for resolving your dispute.

• The Court Overturns the Arbitrator’s Decision: If the court finds that the arbitrator did have jurisdiction, it can overturn the arbitrator’s decision and the case may be sent back to arbitration or continue in court.

Section 37(2)(a) acts as a safety net, ensuring that disputes don’t fall through the cracks due to jurisdictional issues. It safeguards the rights of the parties to have their disputes heard and resolved in the appropriate forum. 

M/s IFFCO v. M/s Bhadra Products, AIR 2018 SC 627

In this case, the Supreme Court of India made a significant ruling regarding the jurisdiction of an arbitrator under Section 16 of the Arbitration and Conciliation Act. The court held that if an arbitrator decides that they have jurisdiction to hear a dispute, this decision cannot be immediately challenged. Instead, the dispute must proceed, and any objections to the arbitrator's jurisdiction can only be raised after the final decision has been made.

This ruling is particularly important in cases where one party may wish to challenge the jurisdiction of the arbitrator early in the proceedings. According to the court's decision, such a challenge must wait until the arbitrator has made their final decision on the dispute. This ensures that the arbitration process is not unnecessarily delayed or disrupted by premature challenges to the arbitrator's jurisdiction.

However, the court also clarified that this rule applies specifically to questions of inherent jurisdiction. Other issues that may have a bearing on jurisdiction, such as the issue of limitation, may be dealt with differently.

In another aspect of the case, the court held that if a party does not participate in the arbitration proceedings, they waive their right to object to the jurisdiction and scope of the arbitrator's authority. This underscores the importance of active participation in arbitration proceedings.

In conclusion, the M/s IFFCO v. M/s Bhadra Products case provides valuable insights into how questions of an arbitrator's jurisdiction are handled under the Arbitration and Conciliation Act. It underscores the importance of allowing the arbitration process to proceed without unnecessary interruptions, while also ensuring that parties have the opportunity to challenge the arbitrator's jurisdiction at the appropriate time.

Word of Caution - Do not avoid arbitration notice or take it lightly

Receiving an arbitration notice is a signal that a formal legal process has begun, and it's crucial not to ignore it or take it lightly. Ignoring the notice can lead to the arbitration proceeding without your input, and you may lose the opportunity to present your side of the story. This could result in an unfavorable decision, which might have legal, financial, and reputational consequences. It's essential to promptly consult a legal expert, understand the implications, and actively participate in the arbitration process. Remember, your response and engagement can significantly impact the outcome of the dispute.

Quippo Construction Equipment v. Janardan Nirman, AIR 2020 SC 2038, 

it was held that if a party does not participate in the proceedings before the arbitrator, they waive their right to object to the jurisdiction and scope of authority of the arbitrator. So, it's crucial to actively participate in the arbitration proceedings.

This ruling highlights the importance of being actively involved in the arbitration process. Let's break down what this means and why it's so important:

1. Understanding the Stakes: Arbitration is a formal process where the decisions made can have a significant impact on the parties involved. It's not something to be taken lightly. By not participating, you might be giving up your rights without even realizing it.

2. Preserving Your Rights to Object: If you have concerns about the arbitrator’s authority or the scope of the arbitration, it is essential to voice these concerns during the proceedings. By not participating, the court may interpret it as an acceptance of the arbitrator's jurisdiction and authority. This means you lose the chance to raise any objections later on.

3. Presenting Your Case: Arbitration is often the final say in a dispute. If you don’t participate, you are essentially not presenting your side of the story. This could result in a decision that is unfavorable to you. Active participation allows you to present evidence, argue your case, and try to secure a more favorable outcome.

4. Legal Consequences: The decision in Quippo Construction Equipment v. Janardan Nirman makes it clear that non-participation can have legal consequences. It sets a precedent that courts may follow in future cases. This means that your non-participation could not only affect the arbitration but also your legal standing in any subsequent proceedings.

5. Professional and Financial Implications: Depending on the nature of the dispute, the outcome of an arbitration can have long-lasting professional and financial consequences. By not participating, you may inadvertently be agreeing to terms that are detrimental to your business or personal finances.

In conclusion, participation in arbitration proceedings is not just a formality; it's a critical aspect of protecting your interests. Whether you are an individual or a business, it’s important to take arbitration proceedings seriously and be actively involved. 

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How to Apply for Passport - Checklist for Passport Applicants,

Checklist Passport Applications ::

(1) While applying for a fresh passport attach two copies of the following documents:

(a)  Proof of address (attach one of the following):

Applicant’s ration card, certificate from Employer of reputed companies on letter head, water /telephone /electricity bill/statement of running bank account/Income Tax Assessment Order /Election Commission ID card, Gas connection Bill, Spouse’s passport copy, parent’s passport copy in case of minors. (NOTE: If any applicant submits only ration card as proof of address, it should be accompanied by one more proof of address out of the above categories).

(b)  Proof of Date of Birth (attach one of the following):

Birth certificate issued by a Municipal Authority or district office of the Registrar of Births & Deaths;

Date of birth certificate from the school last attended by the applicant or any other recognized educational institution; or an Affidavit sworn before a Magistrate/Notary stating date/place of birth as per the specimen in ANNEXURE ‘A’ by illiterate or semi-illiterate applicants.

N.B.: In the case of applicants born on or after 26.01.89, only Birth Certificate issued by the Municipal Authority or the Office of the Registrar of Births & Deaths is acceptable.

(c)  Citizenship Document if applicant is a citizen of India by Registration or Naturalization.

(d) Government/Public Sector/Statutory body employees should submit “Identity Certificate” in original (ANNEXURE B) along with Standard Affidavit Annexure I.

(e)  If the applicant is eligible for “ECNR” attach attested copy of supporting document (see COLUMN 15 of the INSTRUCTIONS AND GUIDELINES FOR FILLING UP THE APPLICATION FORM).

(f)  If the applicant was repatriated at Government cost, enclose documents to show that the expenditure, if any, incurred by the Government of India on his/her repatriation has been fully refunded to the Government of India, Ministry of External Affairs.

(g) If the applicant was ever deported to India, give details of Emergency Certificate/Passport.

(2) When applying for reissue of a passport after 10 years, attach:

(a)  Old passport in original with self-attested photocopy of its first four and last four pages, including ECR/ECNR page.

(b)  Document mentioned at (1) (d), if applicable.

(c)  Document mentioned at (1) (e), if the old passport did not have ECNR stamp or it was issued when the applicant was a minor.

(d)  If there is any change in address, document mentioned at 1 (a).

(e)  If the old passport does not contain spouse name, copy of marriage certificate issued by the Registrar of Marriage or affidavitas per specimen in Annexure `D’.

(3) When applying for a minor’s passport attach:

(a)  A Declaration affirming the particulars furnished in the application about the minor child as per ‘Annexure-H (signed by both parents), Annexure “C” (Single parents who are separated but not formally divorced/Single parent of the child born out of wedlock),  Annexure “G” (when passport is being applied for by single parent or legal guardian) .  Annexure “I”   (when a minor between 15-18 years of age applies for a full validity 10 year passport OR in case either parents who do not hold valid Indian passport while applying passport for their minor child), as the case may be.

(b) Attested photocopy of passport, if any, of both parents, applicable.

(c) Original passports of parents should be presented for verification of particulars.

(d)  If one parent is resident abroad, a Sworn affidavit by the parent resident abroad attested by the Indian Mission along with affidavit from parent residing in India as  well be submitted.

N.B.: Ordinarily the consent of both parents is required for issue of a passport to a minor (below 18 years of age).   However if it is absolutely not possible due to any reason, the parent applying for a passport for his/her minor child may submit an affidavit (Annexure G) and based on the same passport application will be processed.  In case where the parent(s) is/are resident outside India, such consent from the parent(s), in the form of a sworn affidavit, duly attested by the Indian Mission abroad, is acceptable. In the cases where the minor children who are less than 18 years of age, the details of valid passports held by BOTH OR EITHER parents should be furnished. In such cases, passport to their minor child will be issued without any police verification basis. Further, in the cases where the parents do not hold valid passports, applications for such minors can be made on the basis of three documents of parents details of which are given in para C(B) of Section IV of the Passport Information Booklet along with Standard Affidavit Annexure I. In all such cases, passport to their minor child will be issued on post-police verification basis. Children of all ages including new born must apply for separate passports.  However, those below 15 years will be given 5 years validity passport or passport till 18 years of age. In case the minor child who is between 15 and 18 years of age wishes to obtain a full validity passport for 10 years, the same can be issued only on post-police verification basis on submission of Standard Affidavit as in Annexure “I”and three of the 14 document of parents details as mentioned in para C (B) of Section IV of Passport Information Booklet and on payment of fee equivalent to the normal passport fee i.e. Rs. 1000/- for a 36 pages passport, as applicable for an adult. In the case of single parents or of parents who are separated but not formally divorced, an affidavit at ‘Annexure C is to be submitted.

 For Adopted Children:

In case of Adopted Children the following documents are to be furnished:

i) Valid adoption deed registered as per Indian laws
ii) In the case of Christians, Muslims and Parsis, a court order granting guardianship and allowing the child to be taken out of the Country.
iii) Copy of the guarantee executed before the Court concerned.

(B) CHANGE OF NAME

I.    Following marriage, remarriage or divorce:
(a) A woman applying for change of name/surname in existing passport due to marriage must furnish:
(i)  Photocopy of the Husband’s passport, if any, and
(ii) An attested copy of marriage certificate issued by Registrar of Marriage OR an affidavit from the husband and wife along with a joint photograph, (Specimen at Annexure D).
(b) Divorcees applying for change of name OR for deletion of spouse’s name in existing passport must furnish

 (i) Certified copy of Divorce decree.
(ii) Deed poll/sworn affidavit (ANNEXURE ‘E’)
(c) e-married applicants applying for change of name/spouse’s name must furnish:
 (i) ivorce deed/death certificate as the case may be in respect of first spouse, and
(ii) Document as at (a) above relating to second marriage.

II. In other circumstances for change of name, the applicant (both male and female) should furnish:              

(i)  Deed poll/sworn affidavit (ANNEXURE ‘E’):
(ii) Paper cuttings of two leading daily newspapers in original (one daily newspaper should be of the area of applicant’s permanent and present address or nearby area).

(C) OUT OF TURN ISSUE OF PASSPORT UNDER TATKAAL SCHEME

(A) If an applicant desires to obtain his passport under the Tatkal Scheme, a Verification Certificate as per the specimen at ANNEXURE ‘F’ and Standard Affidavit as Annexure “I” should be submitted along with the TATKAAL fee.  The Passport Issuing Authority shall retain the right to verify in writing the authenticity of the Verification Certificate from the official who has issued it.  All applicants seeking a passport out of turn under the TATKAAL Scheme are advised to submit their application, documentation and fee as specified below. No proof of urgency is required for Out-of-Turn issue of passport. Post Police Verification shall be done in respect of all passports issued under the Tatkaal Scheme.

 (B) The applicant also has the option to obtain a passport under Tatkal Scheme on submission of three documents from the Fourteen documents as mentioned below, provided one of the three documents is a photo identity document and atleast one of the three is amongst the documents indicated at (a) to (i) and a Standard Affidavit (Annexure “I”)  on non-judicial stamp paper duly attested by a Notary:

(a) Electors Photo Identity Card (EPIC);

(b) Service Photo Identity Card issued by State/Central Government, Public Sector Undertakings, local bodies or Public Limited Companies;

(c) SC/ST/ OBC Certificates;
(d) Freedom Fighter Identity Cards;
(e) Arms Licenses;
(f) Property Documents such as Pattas, Registered Deeds etc.;
(g) Rations Cards;
(h) Pension Documents such as ex-servicemen’s Pension Book/Pension Payment order, ex-servicemen’s Widow/Dependent Certificates, Old Age Pension Order, Widow Pension Order;

(i) Railway Identity Cards;
(j) Income Tax Identity (PAN) Cards;
(k) Bank/ Kisan/Post Office Passbooks;
(l) Student Photo Identity Cards issued by Recognized Educational Institutions;
(m) Driving Licenses; and
(n) Birth Certificates issued under the RBD Act
(o) Gas Connection Bill

(All above documents to be produced in original along with self-attested copies)

The TATKAAL fee is in addition to the applicable passport fee and payable either in cash or DD in favor of Passport Officer concerned.  The additional fee for out of turn TATKAAL passport, would be as follows:

Fresh Passport
1. Within 1-7 days of the date of Application Rupees 1,500/- plus the passport fee of Rs.1000/-
2. Within 8-14 days of the date of Application Rupees 1,000/- plus the passport fee of Rs.1000/-
Duplicate Passport (in lieu of Lost/Damaged Passport)
1. Within 1-7 days of the date of Application Rupees 2,500/- plus the duplicate passport fee of Rs.2500/-
2. Within 8-14 days of the date of Application Rupees 1,500/- plus the duplicate passport fee of Rs.2500/-
Re-issue cases after expiry of 10 years validity
1. Within 3 working days of the date of application Rupees 1,500/- plus the passport fee of Rs.1000/-

(D) For issue of passports to owner, partners and directors of Companies which are members of CII, FICCI & ASSOCHAM,the applicants have to submit Verification Certificate as at Annexure “J” along with Standard Affidavit at Annexure “I”.

 (E)  In case an applicant is in possession of a Verification Certificate (VC) and or three (3) documents as mentioned in para C(B) (a) of Section IV, and Standard affidavit as in Annexure-I, but does not wish to pay the additional fees as required under Tatkaal, he/she will be issued passport on post- police verification basis in the normal course.

(F) CASES OF LOST/DAMAGED PASSPORTS:  The applicant has to fill the passport application form and submit the same along with following deeds:

i) FIR in original ii) First and last four pages of old passport. iii) If there is any change in address, proof of address.

Source :: GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS CPV DIVISION, DELHI

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Registration of Partnership Firm… Why? and How?

Registration of Partnership Firm… Why? and How?

      You may want to start a partnership firm with some of your acquaintance. One may wonder whether to register his partnership firm or not when it is not statutorily compelled. Yes, the registration of Partnership in India is not compulsory under Indian Partnership Act 1932. Yet, the unregistered partnership firms lack certain advantages in its future business course. For example, in the unregistered firm the expenses viz., payment of salary, commission, interest on borrowings or drawings are not considered as allowable expenses for determination of total income for payment of tax. Is that it? No… there are more which is detailed below.

1. Procedure of Registration

      Entrepreneurs desirous of setting a partnership firm should apply in the prescribed form (Form No. 1) to be submitted to the Registrar of Firms on their jurisdiction with prescribed fee. The application must be signed by all the partners or their authorised agents.

The application contains the following details:

     • Name of the firm

     • Place of Business.

     • Name and Address details of a Partner

     • Date of formation of business

     • Date of Joining the Firm.

     • Duration of the firm.

     The duly filled Form 1 shall be submitted along with the required proof before the Registrar of Firms. The details will be verified and then the register will issue the certificate of registration.

Consequences of Non-Registration:

An unregistered firm cannot file a suit  against a third party in its name to enforce its legal rights.

Partners of an unregistered firm cannot file any suit to enforce a right against the firm.


The firm might be disabled from participating certain Tenders or contracts which mandates the registration of the partnership firm.

     So, needless to add the registered partnership firms avail vice versa of above limitations. It is further advisable to consult a competent lawyer to proceed with the registration of your firm.

Disclaimer: The above contents are mere information and shall not be considered as legal opinion.

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How to Register Marriage in Tamil Nadu

REGISTRATION OF MARRIAGE IN TAMIL NADU

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REGISTRATION OF MARRIAGE IN TAMIL NADU

The Government of Tamil Nadu by Act No. 21/2009 and G.O.(Ms) No. 987 Home (Courts IV) Department dated 24.11.2009 has made it compulsory the registration  of all marriages of all persons who are citizens of India  belonging to various religions in this State. This has came into effect from 24.11.2009.

The marriages, even though registered under the Hindu Marriages Act, 1955, the Indian Christian Marriage Act 1872, the Special Marriage Act 1954, the Mohammadian Shariat Marriage Act and all other marriages done under any other law, are required to be compulsorily registered under Section 3 of this Act as well. Failure of Registration of marriage within 90 will attract penalty and penal action.

PROCEDURES OF REGISTRATION

I.     Registration of Marriage under Hindu Marriage Act

II.   Registration of Marriage under Tamil Nadu Registration of Marriage Act

III.  Registration of Special Marriage

I. Registration of Marriage under Hindu Marriage Act

Eligibility:

Registration of Hindu Marriages Solemnized and granting of extract of marriages registered

Ø  Marriage solemnized under Hindu Customs/non-customary

Ø  Bridegroom/Bride should have completed 21/18 years respectively

Ø  Both of them should be Hindus, Buddhist or Sikhs

Ø  Proof of Marriage

Jurisdiction:

Anyone of the following place should fall within the jurisdiction of the Registering officer:

Ø  Residence of Bride

Ø  Residence of Bridegroom

Ø  Place of Marriage solemnization

Proof required for registration

The following proofs of marriage, residence and age shall be given at the time of registration

          1.    Proof of Marriage

Ø  Wedding Invitation (or)

Ø  Temple Marriage receipts (or)

Ø  Any proof of marriage solemnization

          2.    Proof of Residence

Ø  Employee ID Card (or)

Ø  Ration Card (or)

Ø  Driving Licence (or)

Ø  Passport

         3.    Age Proof

Ø  Birth Certificate (or)

Ø  School/College Certificate (or)

Ø  Passport

In addition to the above, the memorandum of application to be submitted in duplicate along with 6 passport size photograph for bride and bridegroom.

2. Registration of Marriage under Tamil Nadu Registration of Marriage Act

Eligibility:

Ø  Marriages solemnized under any personal law can be registered.

Ø  Bridegroom/Bride should have completed 21/18 years respectively

Ø  It can be registered within 90 days without fine and within 90-150 days with fine. After that it can't be registered.

JURISDICTION

Ø  Solemnization of Marriage shall fall within the Jurisdiction of the Registering Officer

Proof required for registration

The following proofs of marriage, residence and age shall be given at the time of registration

        1.   Proof of Marriage

Ø  Wedding Invitation (or)

Ø  Temple/Church Marriage receipts (or)

Ø  Any proof of marriage solemnization

      2.   Proof of Residence

Ø  Employee ID Card (or)

Ø  Ration Card (or)

Ø  Driving Licence (or)

Ø  Passport

      3.   Age Proof

Ø  Birth Certificate (or)

Ø  School/College Certificate (or)

Ø  Passport

In addition to the above, the memorandum of application to be submitted in duplicate along with 6 passport size photograph for bride and bridegroom.

III. Registration of Special Marriages

Ø  Marriages solemnized before the Registering officer or in any other form.

Ø  Bridegroom/Bride should have completed 21/18 years respectively.

Ø  Anyone of the following place should fall within the jurisdiction of the Registering officer:

1)   Residence of bride

2)   Residence of bridegroom

Ø  Proof for all the above shall be given.

Ø  Notice of intention of marriages.

Ø  If no objection for the marriage is received within 30 days from the notice, marriage will be registered.

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