Parallel Proceedings in Indian Arbitration Law : Invoking Lis Pendens

The power to appoint arbitrators under Section 11 of the Arbitration and Conciliation Act of 1996 was originally vested with the Chief Justice of India, or a High Court. In 2005, the Supreme Court of India re-characterized it as a judicial function. While the recent amendments have altered the machinery for the appointment of arbitrators, their retrospective application is dubious. As such, the re-characterization of the appointment proceedings as a judicial function still continues to raise concerns, one of which pertains to the jurisdictional overlap between the proceedings for appointment of arbitrators, and those for seeking a reference to arbitration. The paper critique the Indian courts’ failure to identify and address this jurisdictional overlap, and the risks it poses. The authors rely on the principle of lis pendens to suggest that where an application seeking reference to arbitration, and involving a question as to the existence of a valid arbitration agreement is pending before a judicial authority, a parallel petition for appointment of arbitrators, raising identical concerns, must not be decided