Section 8 of the Arbitration and Conciliation Act, 1996
(Act) embodies a key facet of the arbitration
framework in India – minimum judicial interference. This
provision mandates that civil courts should refer parties to
arbitration where the dispute is a subject matter of a valid
arbitration agreement. While the language of Section 8 suggests a
legislative command on the civil courts to refer the parties to
arbitration, a recent ruling of the Delhi High Court emphasizes and
reaffirms that the right to seek reference via Section 8 lies
solely with the defendant, who can choose to waive off this right
and submit to the jurisdiction of the civil court.
It is well recognized that Section 8 is peremptory in nature,
and the use of the work 'shall' leaves no scope for doubt
that the legislative intent underlying this provision was to ensure
that judicial discretion could not supersede the intent/right of
the parties to seek resolution of dispute through arbitration.
