The decision on the existence of an arbitration agreement is a minor but important power exercised by the courts. Section 11 (6A) has been inserted to facilitate the application of a system of real costs, as applied in the United Kingdom and other jurisdictions, against misunderstood measures. The decision of the Supreme Court of United India Insurance also made it clear that in order to avoid any damage to a party, it is important not only to determine the existence of an arbitration agreement, but it is also imperative that the compromise clause and the dispute raised be considered. Repeal of Section 11 (6A) would result in the automatic designation of the courts, including claims that are not legally admitted with respect to leases, guardianship, insolvency, corporate liquidation and various real rights. Finally, the appointment can be rendered in vain if the Court of Arbitration ultimately concludes that there is no valid arbitration agreement, resulting in further delays. This law applies to arbitration proceedings under an agreement or law, whether the parties are Norwegian or foreign. It only applies to arbitration proceedings in Norway, unless subsections 2 to 4 provide for something else. Regardless of the location of arbitration, unless the parties are agreed to, the arbitral tribunal may meet where appropriate to advise its members, to examine witnesses, experts or parties, or to consider evidence. In the case of Duro Felguera, S.A. v. Gangavaram Port Limited (2017) 9 CSC 729, one of the first cases in Section 11 (6A), the SC briefly analyzed its magnitude and effect. While the factual matrix of the case was quite complex and emphasized the litigation arising from six agreements, the Court found that the designation of the courts was simplistic and limited to adjudicating the existence of a valid arbitration agreement, strictly within the meaning of Section 11 (6A).
Because there were six arbitration agreements, each of which contained a compromise clause, the SC appointed six separate tribunals. Who decides on the existence of an arbitration agreement? However, the Board ignored the provisions of section 18 of the Arbitration Act in 1996 (which complies with Section 11 of the Indian Act) which requires that the party requesting the appointment of the arbitrator to the Tribunal be required to find a « good litigation » that a court would be competent to decide the case and stresses that all judicial arguments remain in question under the principle of jurisdiction. (Silver Dry Bulk Company Limited v Homer Hulbert Maritime Company Limited [2017] EWHC 44 (Comm). There is therefore a first threshold test that must be completed for a notification to be successful in accordance with section 18, paragraph 3. In the Indian context, the proposed removal of Section 11 (6A) removed the requirement to meet the original threshold for a valid arbitration agreement. The consequences could be precarious. The Committee`s recommendations, which (a) fully outline the power to appoint arbitrators to arbitration institutions and (b) the omission of Article 6 (A), which requires a court to delve into the existence of an arbitration agreement before progressing in an application submitted pursuant to Section 11, are accompanied by an element of uncertainty and ambiguity. The most common problem that will likely arise will be a party challenging the validity of the arbitration agreement as a pole opposed to a party that will file an application pursuant to Section 11. Explicit rules and guidelines must be developed and implemented if the above task is to be assigned to the arbitration institutions.