Jurisdiction(s):
United Kingdom

India: Delhi High Court upholds ICA award despite High Court appointment, prioritising arbitration agreement; Section 11(6) derogable, waiver applies; non-compliance not a Section 34 ground

Published on: 15 October 2024

Published by a LexisNexis Arbitration expert

Legal News

Article summary

Hala Kamel Zabal v Arya Trading Ltd and others, O.M.P. (COMM) 252/2016

What are the practical implications of this case?

When a set-aside petition questions the constitution of the arbitral tribunal, the court gives primacy to the parties’ arbitration agreement over the provisions of the A&C Act. So long as the arbitrator’s appointment conforms to that agreement, any departure from the A&C Act is treated as immaterial. Contracting parties should be mindful that an award can be impugned only where both of the following conditions are satisfied:

the appointment of the arbitrator was not made in accordance with the arbitration agreement; and
the arbitration agreement itself is at odds with a non-derogable provision of the A&C Act.

Accordingly, parties ought to ensure their arbitration agreement does not clash with any non-derogable provisions of the A&C Act, thereby pre-empting a later challenge under Section 34(2)(a)(v) in set-aside proceedings.

What was the background?

The dispute arose out of a Shareholders Agreement dated 23 November 2006 (SHA)...

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