Appeals under Section 37

In one line

Section 37 lists exhaustively the orders from which an appeal lies, three of a court and two of a tribunal, bars a second appeal, and expressly preserves the right to appeal to the Supreme Court.

Section 37(1): appeals from 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, NAMELY:

(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.

The non obstante words were substituted for the bare "An appeal" by the 2019 amendment with effect from 30 August 2019, and they put beyond argument that a Letters Patent Appeal or any similar general right of appeal cannot be used to widen the list.

Note what clause (a) does NOT include. An order REFUSING to refer is appealable; an order REFERRING the parties is NOT. The asymmetry is the same as in section 16: an order that ends the arbitration is appealable, an order that lets it proceed is not.

Section 37(2): appeals from a 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 SECTION 16(3);

(b) GRANTING OR REFUSING TO GRANT AN INTERIM MEASURE UNDER SECTION 17.

Clause (a) is where the section 16 asymmetry is completed. An order ACCEPTING a jurisdictional plea ends the arbitration, so it is appealable at once; an order REJECTING one is not appealable, and section 16(5) and 16(6) send the objector to section 34 after the award.

Clause (b) is symmetrical, because an interim order under section 17 is now enforceable as an order of the court under section 17(2), so both grant and refusal are appealable.

Section 37(3)

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 propositions. No second appeal, so a first appellate order under section 37 is the end of the road within the High Court. But the constitutional route survives: a special leave petition under Article 136 is unaffected, and so is any appeal to the Supreme Court that lies as of right.

The orders that are NOT appealable

Listing them is the sharpest way to answer this question, and each has its own reason.

An order REFERRING the parties to arbitration under section 8, because the arbitration should go on.