VOLUME I - ISSUE II
Whether A Matter Can be Referred for Arbitration in the Absence of an Arbitration Clause or Agreement?
By: -Mr. Tariq Khan, Principal Associate at Advani & Co
Ruhi Thakkar, final-year student , Adv. Balasaheb Apte College of Law, Mumbai
Received: March 10, 2021; Accepted: 2nd April, 2021; Double Peer Reviewed: May 2021.
Arbitration has a similar structure to that of litigation but the fundamental difference between arbitration and litigation lies in the fact that the former owes its existence to an arbitration clause or an arbitration agreement. An arbitration agreement is the written agreement between the parties, to submit their existing, or future disputes or differences, to arbitration, Mahanagar Telephone Nigam Ltd vs. Canara Bank.
In certain situations, as a result of inartistic drafting, the process of alternative dispute mechanisms becomes time consuming which defeats it’s very objection. The situation becomes worse when there is no arbitration clause or agreement in place as a valid arbitration agreement is the foundation stone on which the entire edifice of the arbitral process is structured and the nature of dispute is such that it could be better resolved through arbitration.
Therefore, in the research paper, the authors examine the approach, wherein there is no written arbitration clause or agreement in place but there still exists a possibility to refer the matter for arbitration.
Khan & Thakkar "Whether A Matter Can be Referred for Arbitration in the Absence of an Arbitration Clause or Agreement?", JULS Vol. 1(II), pp. 131-140 (2021), https://www.uniquelaw.in/whether-a-matter-can-be-referred-fo-rarbitration-in-the-absenceofanarbitrationclauseoragreemen