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Searching Case Laws & Precedent on Legal Query!
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Judicial decisions, including those in India and England, emphasize that entering on the reference is marked by the arbitrator's initial application of mind to the dispute, often evidenced by calling parties, receiving claims, or issuing notices ["Ramanath Agarwalla v. Messrs. Goenka and Co - Calcutta"], ["Agawam P. C. v. K. N. Kola and Others - Delhi"].
Analysis and Conclusion:
References:- ["George and Others v. Mathai - Kerala"]- ["Ramanath Agarwalla v. Messrs. Goenka and Co - Calcutta"]- ["AITKEN SPENCE AMP CO v. FERNANDO"]- ["Agawam P. C. v. K. N. Kola and Others - Delhi"]- ["NATIONAL THERMAL POWER CORPORATION VS TECHNO ELECTRIC & ENGINEERING - Delhi"]- ["National Thermal Power Corporation VS Techno Electric & Engineering Co. Ltd. - Delhi"]- ["M/S NATIONAL THERMAL POWER CORPORATION vs M/S TECHNO ELECTRIC & ENGINEERING CO.LTD - Delhi"]- ["M/S NATIONAL THERMAL POWER CORPORATION vs M/S TECHNO ELECTRIC & ENGINEERING CO.LTD - Delhi"]- ["George and Others v. Mathai - Kerala"]
In the realm of dispute resolution, arbitration offers a swift alternative to court litigation. But what exactly does it mean when we talk about an arbitrator entering reference or entering upon the reference? This phrase often puzzles parties involved in arbitration, especially under Indian laws like the Arbitration Act, 1940, and the Arbitration and Conciliation Act, 1996. Understanding this concept is crucial for ensuring the validity of arbitration proceedings and awards.
This blog post breaks down the meaning, procedural requirements, judicial interpretations, and practical implications of an arbitrator entering upon the reference. We'll draw from statutory provisions and case law to provide clarity. Note: This is general information and not specific legal advice. Consult a qualified lawyer for your situation.
The term entering upon the reference (often phrased as entering reference by arbitrator) refers to the formal moment when an arbitrator begins the arbitration process after accepting the dispute for adjudication. It marks the commencement of proceedings, where the arbitrator takes charge and starts exercising jurisdiction derived from the arbitration agreement. Dharma Prathishthanam VS Madhok Construction Pvt. LTD. - 2004 8 Supreme 668
Simply put, it's not just acceptance of appointment—it's when the arbitrator actively proceeds with the matter. As one judicial observation notes: An arbitrator enters on a reference when, after having accepted it, he proceeds to do something in furtherance of and towards the execution of the work of arbitration. Soneylal Thakur VS Lachhminarain Thakur - 1957 Supreme(Pat) 105
This act is pivotal because it triggers the arbitrator's authority to hear the case, issue notices, hold hearings, and deliver an award. Without a proper entry, proceedings may be deemed invalid. Engineering Mazdoor Sabha: Anglo American Direct Tea Trading Company LTD. VS Hind Cycles LTD. : Ir Workmen - 1962 0 Supreme(SC) 328
Arbitration in India is governed primarily by the Arbitration and Conciliation Act, 1996, which replaced the Arbitration Act, 1940, but retains similar principles on this point. The arbitrator's role stems from the parties' consent via an arbitration agreement. Dharma Prathishthanam VS Madhok Construction Pvt. LTD. - 2004 8 Supreme 668
Under the 1940 Act's Schedule I, Rule 3, awards must generally be made within four months from entering on the reference. This underscores its importance for time limits. The 1996 Act modernizes this but emphasizes timely commencement. Engineering Mazdoor Sabha: Anglo American Direct Tea Trading Company LTD. VS Hind Cycles LTD. : Ir Workmen - 1962 0 Supreme(SC) 328
Key elements include:- Consent-based foundation: Authority arises from the agreement or statutory appointment.- Formal commencement: Beyond mere acceptance, it involves applying the mind to the dispute. NATIONAL RESEARCH DEVELOPMENT CORPORATION OF INDIA VS SYNTHITE INDUSTRIAL CHEMICALS PRIVATE LIMITED - 1997 Supreme(Del) 920
The dictionary sense, as cited in cases, aligns with to take the first step upon or in or to begin to deal with a subject. Thus, ministerial acts alone (like filing notices without adjudication intent) don't qualify. C. C. SUBBARAYA SETTY VS C. V. ANANTHANARAYANA SETTY - 1995 Supreme(Kar) 342
The process typically unfolds as follows:
For instance, merely issuing a notice may not suffice if it doesn't show application of mind to the merits. In one case, the arbitrator entered reference on the first hearing date (20.11.2004), not the notice date (15.11.2004), validating the award made within four months. Meerut Development Authority Meerut VS Civil Engineering Construction Corporation - 2020 Supreme(All) 147
Participation by parties post-entry may waive objections, affirming jurisdiction. Engineering Mazdoor Sabha: Anglo American Direct Tea Trading Company LTD. VS Hind Cycles LTD. : Ir Workmen - 1962 0 Supreme(SC) 328
Indian courts have clarified this through precedents:
The Supreme Court held that jurisdiction roots in the agreement, and entering upon the reference marks proceedings' start. Invalid entry voids everything. Dharma Prathishthanam VS Madhok Construction Pvt. LTD. - 2004 8 Supreme 668
In a dispute over a survey plot, the court ruled: Arbitrator enters on reference when, after having accepted it, he proceeds to do something in furtherance... Mere acceptance isn't enough; inaction means no entry, affecting award timelines. Soneylal Thakur VS Lachhminarain Thakur - 1957 Supreme(Pat) 105
Another ruling emphasized: The expression 'entering on the reference' in Rule 3... means that the arbitrator has already accepted the reference and has proceeded to do something in furtherance... The exact date... will have to be determined on the facts. Soneylal Thakur VS Lachhminarain Thakur - 1957 Supreme(Pat) 105
If a named arbitrator refuses (e.g., by returning a claim petition), courts may appoint another, as returning... tantamounts to the named arbitrator refusing to enter upon the reference. CHIEF ENGINEER, HYDERABAD URBAN DEVELOPMENT AUTHORITY VS GLOBAL CONSTRUCTIONS - 1993 Supreme(AP) 107
Acting as an Arbitrator is wider, encompassing entry, proceedings, and award. Entry is the initial judicial step. C. C. SUBBARAYA SETTY VS C. V. ANANTHANARAYANA SETTY - 1995 Supreme(Kar) 346NATIONAL RESEARCH DEVELOPMENT CORPORATION OF INDIA VS SYNTHITE INDUSTRIAL CHEMICALS PRIVATE LIMITED - 1997 Supreme(Del) 920
These cases highlight that facts determine the date—crucial for limitation and challenges under Section 34 of the 1996 Act.
For validity:- Proper consent: Essential; compulsory references differ but need legal basis. ABANCHI APPU v. FERNANDO- Timely steps: Critical for four-month limit. Engineering Mazdoor Sabha: Anglo American Direct Tea Trading Company LTD. VS Hind Cycles LTD. : Ir Workmen - 1962 0 Supreme(SC) 328- No bias or misconduct: Pre-entry familiarity with accounts might raise issues if biased. CRONING v. THE ATTORNEY GENERAL
Risks include:- Null awards.- Setting aside under misconduct or jurisdiction lack.- Parties challenging via Section 30/34.
Disclosure under Section 12(2) of the 1996 Act may be required post-entry. SWADESHI CIVIL INFRASTRUCTURE PVT LTD VS. RITES LIMITED & ANR. - 2026 Supreme(Online)(Del) 1056
Entering reference by arbitrator is more than a formality—it's the gateway to legitimate arbitration. Parties should ensure valid appointments and monitor commencement to avoid nullity pitfalls. While laws evolve (e.g., 1996 Act efficiencies), core principles endure. For tailored guidance, seek professional legal counsel.
Sources:Dharma Prathishthanam VS Madhok Construction Pvt. LTD. - 2004 8 Supreme 668Engineering Mazdoor Sabha: Anglo American Direct Tea Trading Company LTD. VS Hind Cycles LTD. : Ir Workmen - 1962 0 Supreme(SC) 328Jatinder Nath VS Chopra Land Dev. P. LTD. - 2007 2 Supreme 923State of Goa VS Praveen Enterprises - 2011 0 Supreme(SC) 592Constitution Of India VS Secretary, Works Department, Government Of Orissa - 1997 10 Supreme 565Soneylal Thakur VS Lachhminarain Thakur - 1957 Supreme(Pat) 105Meerut Development Authority Meerut VS Civil Engineering Construction Corporation - 2020 Supreme(All) 147NATIONAL RESEARCH DEVELOPMENT CORPORATION OF INDIA VS SYNTHITE INDUSTRIAL CHEMICALS PRIVATE LIMITED - 1997 Supreme(Del) 920C. C. SUBBARAYA SETTY VS C. V. ANANTHANARAYANA SETTY - 1995 Supreme(Kar) 342CHIEF ENGINEER, HYDERABAD URBAN DEVELOPMENT AUTHORITY VS GLOBAL CONSTRUCTIONS - 1993 Supreme(AP) 107
#ArbitrationLaw, #EnteringReference, #LegalInsights
If after the expiry of the four months from the date of entering on the reference an arbitrator can no longer act, a notice given thereafter cannot ask him to act. ... We, therefore, answer the questions referred to us as follows: ... (1) An Arbitrator does not enter on the reference as soon as he assumes the office of an Arbitrator. ... ... 4 As to what is meant by an entry on the reference has been the subject matter of judicial decisions both i....
We have been invited to determine what is meant by an Arbitrator entering on a reference as there are conflicting decisions on the subject. In Baker v. ... His acting as arbitrator includes (a) entering on reference, (b) proceeding with the reference, and (c) making an award. It follows that the expression "acting as an Arbitrator" is wider than "entering on the reference". ... Entering#....
-The reference was made by order of. Court, and it was not open to the defendant to ex parte-Setting aside award-Misconduct of arbitrator under 8. 601 (a) of the Code-Cost of successful appellant refused for perverse conduct-Entering decree after appeal filed against previous order. ... Even supposing the passage meant that the bare delivery of the award, and not necessarily the whole arbitration, should take place in the presence of the parties, it is clear that it referred to delivery. by the arbitrator#HL....
Compulsory reference to arbitration-Action relating to matters of account-Appeal from order entering up judgment according to award on a compulsory reference-Court of Requests. ... I am not sure that the word " arbitrator " here was intended to include an arbitrator in the case of a compulsory reference. The provision has been token bodily from the Indian Evidence Act, and I am not sure that there is any law in India providing for a compulsory reference to arb....
Backhouse suggested the addition of a provision on the lines of paragraph 17 of the Schedule to the Code of Civil Procedure, he could have meant it only as a supplementary provision. He could not have meant that in each or every case the reference to arbitration must be through the Court. ... Contract notes such as Exhibits R1 to R4 used to be signed by the appellant while entering into these contracts with the Respondent No. 1. ... ... (2) The party first appointing the arbitrator is given the right t....
Both should be based on consent given either at the time of choosing the Arbitrator and making reference or else at the time of entering into the contract between the parties in anticipation of an occasion for settlement of disputes arising in future. ... Two things are, therefore, of essence in cases like the present one: firstly, the choice of the Tribunal or the arbitrator; and secondly, the reference of the dispute to the arbitrator. ... considered the question of validity of #HL_....
The learned Arbitrator is also requested to file the requisite disclosure under Section 12 (2) of the Act within a week of entering the reference. 10. ... The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be in the discretion of the arbitrator who may direct to any by whom and in what manner, such costs or any part thereof shall be paid and fix or settle the amount of costs to be so paid." ... Such person shall be entitled to proceed with ....
The lower appellate Court took the view that this expression meant the appearance of the parties before the arbitrator and the hearing of the matter under reference by him. ... ... This section, therefore, clearly rules out the possibility of the date on which the agreement of reference is executed or the reference is accepted by the arbitrator to be the date of entering on the reference. ... The expression "entering on the #HL_STA....
As I understand the plaintiff's argument, it was contended that the letter proves that the arbitrator, before entering on the award, had made himself familiar with the accounts, and had come to a more or less definite conclusion on a matter connected with the reference. ... If the arbitrator had displayed such a bias as would incapacitate him from acting, the appellant should have moved the Court to revoke the order of reference. ... -An arbitrator, under such a clause of compulso....
The learned Arbitrator shall be entitled to fees as per the Schedule of Fees maintained by the DIAC. 11. The learned Arbitrator is also requested to file the requisite disclosure under Section 12 (2) of the Act within a week of entering of reference. ... Accordingly, the petitions filed under Section 9 of the Act will be treated as applications under Section 17 of the Act, and the learned Arbitrator shall consider and decide the same after entering reference. 19. ... ....
It follows that the expression “acting as an Arbitrator” is wider than “entering on the reference”. Now, the dictionary meaning of “to enter on”, in the context in which the expression has been used in the Arbitration Act, is “to take the first step upon or in” or “to begin to deal with a subject” : vide Shorter Oxford English Dictionary. The Arbitrator, under the Act, may have to do various ministerial acts but the doing of any of the ministerial acts is not entering on the reference. It is only when he first applies his mind to the dispute referred to him that he enters o....
Doing of the ministerial acts is not entering on the reference. There it has been observed that acting as arbitrator includes (a) entering on reference; (b) proceeding with the reference and (c) making of award. The expression acting as an arbitrator is wider than entering on the reference. Entering on reference, therefore, refers to the first step that the arbitrator takes in the reference, that is to say, when he begins to deal with the reference.
His acting as arbitrator includes (a) entering on reference, (b) proceeding with the reference, and (c) making an award. Now, the dictionary meaning of 'to enter on', in the context in which the expression has been used in the Arbitration Act, is "to take the first step upon or in, 'or' to begin to deal with (subject) : vide Shorter Oxford English Dictionary, Vol. p. 464." If follows that the expression 'acting as an Arbitrator' is wider than 'entering on the reference'. As already pointed out even the Supreme Court has indicated that the expression "to act" is a very compr....
His acting as arbitrator includes (a) entering on reference, (b) proceeding with the reference, and (c) making an award. It follows that the expression 'acting as an Arbitrator' is wider than 'entering on the reference'. Now, the dictionary meaning of 'to enter on', in the context in which the expression has been used in the Arbitration Act, is "to take the first step upon or in' or 'to begin to deal with (subject) : vide Shorter Oxford English Dictionary, Vol. 1. p. 464". As already pointed out even the Supreme Court has indicated that the expression "to act" is a very com....
8. In the present case on hand, the petition filed before the II Additional Judge was returned by the court without assigning any reasons. The returning of the claim petition by the II Additional Judge tantamounts to the named arbitrator refusing to enter upon the reference. This is exactly what is stated by the V Additional Judge in his order. That tantamounts to the named arbitrator not entering upon the reference.
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