Arbitration and Conciliation Act, 1996:

Section 11 - Order passed by Chief Justice or his designate nominating an Arbitrator - Held not adjudicatory in nature - Such an order held not amenable to jurisdiction of Supreme Court under Article 136 - UNCITRAL Model Law held not a guide to interpretation of Act.

The appointment of Arbitrators by the Chief Justice of India Scheme, 1996:

Clause 7 - Requirement of giving notice upon other party to arbitration to show cause why nomination of arbitrator should not be made - Held bad - Amendment suggested.

Constitution of India, 1950: Article 136.

Special Leave Petition - Order amenable to - Must be an adjudicatory order - Order passed by Chief Justice under Section 11 of Arbitration and Conciliation Act, 1996 nominating and Arbitrator held not adjudicatory.

The decision by a Bench of two Judges in Ador Samia case namely, that the order of the Chief Justice or his designate in exercise of the power under Section 11 of the Arbitration and Conciliation Act, 1996 nominating an Arbitrator is an Administrative order and thus not amenable to jurisdiction of the Supreme Court under Article 136 was affirmed by a Bench of three Judges in Konkan Railway case. Therefore, a Bench of two Judges referred to a larger Bench the decision of three Judges for reconsideration. Hence these appeals.

On behalf of the appellants it was contended that (i) provisions contained in Section 11 indicated that Chief Justice or his designate had to perform adjudicatory function (ii) section 16 of the Act enabled the arbitral tribunal to decide on the width of its jurisdiction but it could not decide whether or not an arbitrator had no jurisdiction because he had been appointed by the Chief Justice or his designate even though the period of thirty days of the receipt of the request to do so had not elapsed; this was an issue which had to be decided by the Chief Justice or his designate and (iii) under Clause (7) of the appointment of Arbitrators by the Chief Justice of India Scheme, 1996 the affected parties had to be given show cause notice which implied that, on their showing cause, the issues they raised would be decided by the Chief Justice or his designate.

The Attorney-General submitted that (i) The Chief Justice or his designate under Section 11 performed neither an adjudicatory function nor they were exercising the power of the State; (ii) Sections 12 and 13 applied even to an arbitrator who had been nominated by the Chief Justice or his designate under Section 11; (iii) The competence of the arbitral tribunal to rule on its own jurisdiction under Section 16 was not confined to the width of its jurisdiction but extended to deciding whether it had any jurisdiction at all.