Answer ... Section 7(1) of the Arbitration Act, defines an ‘arbitration agreement’ as an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. As per Section 7(2) of the Arbitration Act, an arbitration agreement may be in the form of an arbitration clause in a contract or a separate agreement.
Further, as per Section 7(3) of the Arbitration Act, an arbitration agreement must be in writing. As per Section 7(4) of the Arbitration Act, an arbitration agreement is in writing if it is contained in:
- a document signed by the parties;
- an exchange of letters, telex, telegrams or other means of telecommunication, including communication through electronic means, which provides a record of the agreement; or
- an exchange of statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
In addition, in order for an arbitration agreement to be valid, it must satisfy the conditions specified in Section 10 of the Indian Contract Act, 1872, which lays down the following requirements, among others:
- It must be made by the free consent of the parties;
- The parties must be competent to contract;
- It must be for a lawful consideration and with a lawful object; and
- It must not be expressly declared void under the Indian Contract Act.
Answer ... The doctrine of separability states that the arbitration clause is an agreement separate and independent from the other terms of the contract in which it appears. The doctrine of separability has varied acceptance. The courts will recognise the doctrine of separability and allow the arbitrator to decide an issue so long as the arbitration clause is valid and the issue is arbitrable.
Section 16 of the Arbitration Act concerns the separability of arbitration agreements. As per Section 16(1)(a), an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. Further, Section 16(1)(b) provides that a decision by the tribunal that the contract is null and void shall not entail, ipso jure, the invalidity of the arbitration clause.
The Supreme Court of India has also recognised the application of the doctrine of separability in its judgments in Enercon (India) ltd v Enercon Gmbh (Civil Appeal 2086 of 2014, arising out of SLP (C) 10924 of 2013)) and Reliance Industries Limited v Union of India ((2014) 7 SCC 603)).
Answer ... As per Section 20(2) of the Arbitration Act, in the absence of an agreement between the parties regarding the place of arbitration, the place of arbitration is determined by the tribunal, having regard to the circumstances of the case, including the convenience of the parties.
Further, as per Section 22(2), in the absence of an agreement between the parties regarding the language of the arbitration, the tribunal shall determine the language or languages to be used in the proceedings.