Section 37: Which Orders Can Be Appealed, and Which Cannot

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.