In Swadesh Kumar Agarwal case
 decided on 5th May 2022, Supreme
Court of India ruled that there is no requirement of a written arbitration
agreement between the parties, if the arbitrator is appointed under Section
11(5) of the 1996 Act but the existence of a written an arbitration clause is
mandatory if an application for appointment of arbitrator is filed in the court
under Section 11(6) of the Act.
The general mis-understanding about the requirement of a written arbitration
agreement is clarified by the Bench of the Supreme Court of India bench
consisting of Hon'ble Judges Mr MR Shah & Mrs B.V.Nagrathna.
The fact of the case is that both the parties appointed a sole arbitrator to
resolve certain family related issues, by consent. The arbitration got delayed
and one of the parties filed an application under Section 14(1)(a) seeking to
remove the arbitrator on the ground of the inability of the arbitrator to
conclude the proceedings within time.
The district court dismissed the case. Hence the aggrieved party appealed to the
High Court and also filed an application under Section 11(6) seeking appointment
of new arbitrator. The High Court allowed the appeal and also appointed an
arbitrator exercising its powers under Section 11(6), which came to be
challenged in the Supreme Court of India.
Hon'ble Supreme Court while deciding the said case, settled law that High Court
can exercise Jurisdiction under 11(6) only if there is a written arbitration
clause and not otherwise. But for the parties to appoint an arbitrator by
consent there is no requirement of a written arbitration clause.
- Swadesh Kumar Agarwal v/s Dinesh Kumar Agarwal & others Civil appeal
Numbers 2935-38 of 2022
- Arbitration and Conciliation Act, 1996