Section 37: Which Orders Can Be Appealed, and Which Cannot
Chapter Forty-One
Syllabus topic 2.1, "The Arbitration and Conciliation Act, 1996"
Pages 207 to 210 of 377
In one line
Only five kinds of order can be appealed under this Act, there is no second appeal, and the right to go to the Supreme Court under the Constitution survives.
In exam wording: section 37 of the Arbitration and Conciliation Act 1996 provides an exhaustive list of appealable orders, appeals lying to the Court authorised by law to hear appeals from original decrees of the Court passing the order, and bars any second appeal while preserving the right of appeal to the Supreme Court.
A section that exists to stop appeals
Most appeal provisions are written to give a right. This one is written to confine it, and the drafting shows it: "an appeal shall lie from the following orders (and from no others)."
Read section 37 together with section 5, chapter 220. Section 5 says a judicial authority shall not intervene except where Part I provides. Section 37 is one of those provisions, and its parenthesis makes clear that it provides for these orders and nothing else.
Section 37(1): appeals from orders of a Court
Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:
- (a) refusing to refer the parties to arbitration under section 8;
- (b) granting or refusing to grant any measure under section 9;
- (c) setting aside or refusing to set aside an arbitral award under section 34.
Take each in turn, because the asymmetries are examinable.
Clause (a) is one-way. An appeal lies from an order refusing to refer. There is no appeal from an order referring the parties to arbitration. The logic is the same as section 16's: an order referring the parties sends the dispute to the forum they chose and the objection can be revisited later, while a refusal keeps them in court in defiance of their agreement.
Note also that the non obstante clause at the start, "notwithstanding anything contained in any other law", was inserted by the 2019 amendment. It closes off attempts to find a right of appeal in some other statute, such as a Letters Patent.
Clause (b) is two-way. Both the grant and the refusal of a section 9 interim measure are appealable, which is right, since a wrongly granted injunction and a wrongly refused one are equally damaging.
Clause (c) is two-way. Setting aside and refusing to set aside are both appealable. This is the ordinary route by which a section 34 decision is reviewed, and it is worth being precise: the appeal is against the court's order on the section 34 application, not against the award.
Section 37: Which Orders Can Be Appealed, and Which Cannot
Section 37(2): appeals from orders of the arbitral tribunal
An appeal shall also lie to a court from an order of the arbitral tribunal:
- (a) accepting the plea referred to in section 16(2) or 16(3); or
- (b) granting or refusing to grant an interim measure under section 17.
Clause (a) is the other half of the section 16 asymmetry, and this is where chapter 300 pointed.
- The tribunal accepts the plea and holds it has no jurisdiction, or that it is exceeding its authority. The arbitration stops, there will never be an award, and so there would never be a section 34 application. An immediate appeal is the only remedy, and clause (a) gives it.
- The tribunal rejects the plea. No appeal. Under section 16(5) it continues and makes an award, and under section 16(6) the objector applies under section 34.
Clause (b) is two-way, matching clause (1)(b) for the court's own interim orders, which is why section 17(2)'s deeming provision is expressed to be subject to any orders passed in an appeal under section 37.
Section 37(3): no second appeal, and what survives
No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
Two halves, and both matter.
No second appeal. So the chain stops after one appeal. A party cannot take a section 37 appellate order onwards through the ordinary hierarchy.
The Supreme Court is preserved. The saving refers to the right of appeal to the Supreme Court, which in practice means a special leave petition under article 136 of the Constitution. That is consistent with what chapter 220 says about section 5: a statute cannot cut down the constitutional jurisdiction of the Supreme Court, and section 37(3) does not attempt to.
Note what section 37(3) does not mention: the High Court's jurisdiction under articles 226 and 227. Those powers exist independently of this Act, but the policy of sections 5 and 37 is why courts exercise them sparingly in arbitration matters.
The complete picture of what is and is not appealable
| Order | Appealable? | Provision |
|---|---|---|
| Refusing to refer under section 8 | Yes | 37(1)(a) |
| Referring the parties under section 8 | No | not listed |
| Granting or refusing a section 9 interim measure | Yes, both | 37(1)(b) |
| Setting aside or refusing to set aside under section 34 | Yes, both | 37(1)(c) |
| Appointing an arbitrator under section 11 | No, and section 11(7) makes it final, excluding even a Letters Patent Appeal | 11(7) |
| Tribunal accepting a section 16(2) or 16(3) plea | Yes | 37(2)(a) |
| Tribunal rejecting a section 16 plea | No; wait for the award and use section 34 | 16(5) and (6) |
| Granting or refusing a section 17 interim measure | Yes, both | 37(2)(b) |
| An unsuccessful challenge to an arbitrator under section 13 | No; wait for the award and use section 34 | 13(4) and (5) |
| A second appeal from a section 37 order | No | 37(3) |
| An appeal to the Supreme Court | Preserved | 37(3) |
Section 37: Which Orders Can Be Appealed, and Which Cannot
Learn that table. It answers most section 37 questions directly, and it also shows the Act's consistent policy: an order that stops an arbitration is appealable at once; an order that lets it continue is not.
A worked example
A dispute produces a series of orders. Work out which can be appealed.
The City Civil Court refuses a section 8 application and keeps the suit. Appealable, under section 37(1)(a).
Had it granted the application and referred the parties, there would have been no appeal, because clause (a) covers only refusal.
The High Court refuses an interim injunction under section 9. Appealable, under section 37(1)(b), which covers both granting and refusing.
The tribunal rejects the respondent's plea that there is no arbitration agreement. Not appealable. Under section 16(5) the tribunal continues to an award, and under section 16(6) the remedy is a section 34 application.
The tribunal accepts a plea that a particular counterclaim is beyond the scope of its authority. Appealable at once, under section 37(2)(a), because that is a plea under section 16(3) and the counterclaim is otherwise simply lost.
The tribunal grants an injunction under section 17. Appealable, under section 37(2)(b).
The Court refuses to set aside the award under section 34. Appealable, under section 37(1)(c).
The appellate court dismisses that appeal. Can the losing party appeal again? No second appeal lies, under section 37(3). What survives is the right to move the Supreme Court, in practice by special leave under article 136.
What beginners get wrong
An order referring parties to arbitration under section 8 is not appealable. Only a refusal is.
A rejection of a section 16 plea is not appealable, only an acceptance. Getting this the wrong way round is the commonest error on the section.
An appointment under section 11 is not appealable at all. Section 11(7) makes it final and excludes a Letters Patent Appeal.
Section 37(1)(c) is an appeal against the court's order, not against the award.
"No second appeal" does not close the Supreme Court. Section 37(3) expressly preserves the right to appeal there.
Quick revision
- 37(1), notwithstanding any other law, appeal from (a) refusing to refer under section 8; (b) granting or refusing a measure under section 9; (c) setting aside or refusing to set aside under section 34, "and from no others", to the court that hears appeals from original decrees of the court passing the order.
- 37(2), appeal from an order of the tribunal (a) accepting a plea under section 16(2) or 16(3); (b) granting or refusing an interim measure under section 17.
- 37(3): no second appeal; the right of appeal to the Supreme Court is preserved.
- The policy: an order that stops an arbitration is appealable at once; one that lets it continue is not.
Section 37: Which Orders Can Be Appealed, and Which Cannot
Test yourself
1. A court refers the parties to arbitration under section 8. Can the plaintiff appeal? No. Section 37(1)(a) allows an appeal only from an order refusing to refer the parties to arbitration. An order referring them is not in the list, and the section says an appeal lies from the listed orders and from no others.
2. The tribunal holds that it has jurisdiction, over the respondent's objection. What can the respondent do? Nothing immediately. Under section 16(5) the tribunal continues and makes an award, and under section 16(6) the respondent may then apply to set it aside under section 34. Only the acceptance of such a plea is appealable, under section 37(2)(a).
3. Is an order appointing an arbitrator under section 11 appealable? No. Section 11(7) makes a decision on a matter entrusted by sections 11(4), (5) or (6) final and provides that no appeal, including a Letters Patent Appeal, shall lie against it. Section 37 does not list it either.
4. What does section 37(3) permit and prohibit? It prohibits a second appeal from an order passed in appeal under section 37, and it preserves any right to appeal to the Supreme Court, which in practice means special leave under article 136 of the Constitution.
5. Which orders of the arbitral tribunal itself are appealable? Only two, under section 37(2): an order accepting a plea referred to in section 16(2) or 16(3), and an order granting or refusing to grant an interim measure under section 17.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself for the same subject.