Written Communications, Waiver of the Right to Object, and the Limit on Judicial Intervention

Take the elements one at a time, because each is a condition and the section fails without all of them.

"Knows." Actual knowledge. A party who could not have known has not waived.

"From which the parties may derogate." A derogable provision is one the parties are free to contract out of. Much of Part I is default machinery of that kind. The converse is the important half: a mandatory provision cannot be waived under section 4. A party cannot lose, by silence, the right to complain that the tribunal was never properly constituted in a way the Act forbids, or that he was denied the opportunity to present his case under section 18.

"Proceeds with the arbitration." Continuing to take part is the conduct that waives.

"Without undue delay." Not immediately, but promptly. Where the agreement or the rules fix a period, that period governs.

Section 4 works together with section 16(2), which requires a plea that the tribunal lacks jurisdiction to be raised not later than the submission of the statement of defence, and with section 12(5), where the ineligibility of an arbitrator can be waived only by an express agreement in writing after the dispute has arisen. Where the Act prescribes its own timing or its own form of waiver, that provision governs and section 4 does not soften it.

Section 5: the extent of judicial intervention

"Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part."

This is the most quoted sentence in the Act and it deserves to be. Read it in three parts.

"Notwithstanding anything contained in any other law." A non obstante clause: where another statute would give a court a power over these matters, this section displaces it.

"In matters governed by this Part." The limit is real. Section 5 does not oust the courts from everything; it applies to matters Part I governs.

"No judicial authority shall intervene except where so provided in this Part." The Act is a complete code for court involvement in arbitration. A court has the powers Part I gives it and no others.

The correct way to use section 5 in an answer is not to say that courts have no role. They have a substantial one, and the Act is careful about it: referring the parties under section 8, interim measures under section 9, appointment under section 11, terminating a mandate under section 14, assistance in taking evidence under section 27, setting aside under section 34, enforcement under section 36 and appeals under section 37. What section 5 does is make that list exhaustive.

One qualification a good answer makes. Section 5 is a provision of a statute and cannot cut down the constitutional jurisdiction of the High Courts under articles 226 and 227 or of the Supreme Court under article 136. What the courts have done instead is hold that those powers should be exercised only in exceptional cases in arbitration matters, precisely because of the policy in section 5. The judgment usually cited for that restraint is in the queue and is not stated here as a holding.

Section 6: administrative assistance

In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

Short, permissive and easy to overlook, and it does one useful thing: it lets an ad hoc arbitration borrow an institution's machinery, a registry, a hearing room, a secretary, without becoming an institutional arbitration. Note who may arrange it: the parties may do so themselves, and the tribunal may do so only with the parties' consent.

A worked example

Rakesh and a construction company have a contract with an arbitration clause requiring that any arbitrator be a chartered engineer. A dispute arises. The company appoints an arbitrator who is a retired banker. Rakesh receives the notice at his shop, attends four hearings, files a statement of claim and cross-examines a witness. After the award goes against him, he applies under section 34 saying the arbitrator was not a chartered engineer.

Was the notice received? Yes. Section 3(1)(a) deems a written communication received if delivered to the addressee personally or at his place of business, and it was received on the day of delivery under section 3(2).

Is the qualification point still open to him? Almost certainly not. The requirement is one under the arbitration agreement, so it falls squarely within section 4(b). He knew of the breach, he proceeded with the arbitration through four hearings and a statement of claim, and he did not object without undue delay. He is deemed to have waived the right to object.

Would it be different if his complaint were that he was never given a chance to lead evidence? Yes, and this is the distinction the section turns on. Section 18's guarantee that each party shall be given a full opportunity to present his case is not a provision the parties may derogate from, so section 4 does not apply to it, and the complaint survives to be argued under section 34.

Could he have gone to the civil court mid-arbitration for an injunction restraining the arbitrator? Section 5 is the answer: no judicial authority shall intervene in matters governed by Part I except where the Part provides. The Act gives him section 12 and 13 to challenge the arbitrator, and section 34 afterwards. It does not give him a civil suit.

What beginners get wrong

Section 4 does not waive everything. It reaches derogable provisions and requirements of the agreement, not mandatory ones.

Section 5 does not abolish the courts' role. It makes the Act's own list of court powers exhaustive.

Section 3 is not a rule about serving court papers. Sub-section (3) takes judicial proceedings out of it.

Section 6 does not let a tribunal appoint an administrator on its own. The parties' consent is required.

Quick revision

• Section 3: a written communication is deemed received if delivered personally or at the place of business, habitual residence or mailing address; failing those, after reasonable inquiry, at the last known address by registered letter or a means giving a record of the attempt. Received on the day delivered. Does not apply to judicial proceedings. Subject to contrary agreement.
• Section 4: knowing of non-compliance with a derogable provision or a requirement of the agreement, and proceeding without objecting without undue delay or within the time fixed, waives the objection.
• Section 5: notwithstanding any other law, in matters governed by Part I no judicial authority shall intervene except where so provided. The Act is a complete code for court involvement.
• Section 6: the parties, or the tribunal with the parties' consent, may arrange administrative assistance by a suitable institution or person.

Test yourself

1. A respondent has vanished. Can the arbitration proceed? Yes, if section 3(1)(b) is satisfied: after a reasonable inquiry fails to find his place of business, habitual residence or mailing address, a communication sent to his last known such address by registered letter, or by another means providing a record of the attempt to deliver, is deemed received.

2. What exactly does section 4 waive, and what does it not? It waives an objection to non-compliance with a provision of Part I from which the parties may derogate, or with a requirement under the arbitration agreement, where the party knew and proceeded without objecting without undue delay. It does not waive non-compliance with a mandatory provision, and where the Act fixes its own timing or form of waiver, as sections 16(2) and 12(5) do, those govern.

3. State section 5 and explain its limit. Notwithstanding anything in any other law, in matters governed by Part I no judicial authority shall intervene except where so provided in the Part. Its limit is in its own words: it applies to matters governed by Part I, and it is a statutory provision, so it cannot by itself cut down the constitutional jurisdiction of the High Courts or the Supreme Court, although courts exercise those powers sparingly in arbitration matters because of it.

4. May an arbitral tribunal engage an institution to administer the reference? Only with the parties' consent. Section 6 permits the parties to arrange administrative assistance, or the tribunal to do so with the consent of the parties.

5. Does section 3 govern the service of a section 34 petition? No. Section 3(3) provides that the section does not apply to written communications in respect of proceedings of any judicial authority, so service in court is governed by the ordinary procedural law.