Resolving The "Existential" Crisis Of Section 11 Of The Arbitration & Conciliation Act

Abstract

The seemingly innocuous use of the term 'existence' in Section 11(6A) of the Indian Arbitration Act has been the subject of intense interpretative debates. This essay seeks to analyze the jurisprudence that has developed in relation to this 'existence test', by relying on the principles of Kompetenz Kompetenz and party autonomy in arbitration. To do so, it examines the various provisions of Indian Commercial Laws and International Practices to determine the most appropriate application of Section 11. In conclusion, it advocates for having party autonomy as the boundary line for the application of the doctrine of Kompetenz-Kompetenz in the Indian arbitration framework, and how this principle should figure into the framework after the 2019 amendment.