Power of judicial authority to refer parties to arbitration
Section 45 of the Arbitration and Conciliation Act, 1996 deals with power of judicial authority to refer parties to arbitration. Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person cla The Act came into force on 22 Aug 1996.
Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, 1[unless it prima facie finds] that the said agreement is null and void, inoperative or incapable of being performed.
Section 45, The Arbitration and Conciliation Act, 1996 (Act 26 of 1996).
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Referred to by 1
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Chloro Controls(i) P. LTD vs Severn Trent Water Purification INC
Court's Decision & Legal Precedent
In multi-party and composite commercial transactions involving multiple interconnected agreements (principal/mother agreement and ancillary/subsidiary agreements), where the principal agreement contains a comprehensive arbitration clause covering disputes 'under or in connection with' such agreement, and the ancillary agreements are integral to performing the objectives of the principal agreement and are referred to therein, the Court shall refer all disputes arising from such composite transaction to arbitration under Section 45 of the Arbitration and Conciliation Act, 1996. This referral can include disputes of non-signatory parties who are claiming through or under the signatory parties to the principal agreement, provided: (1) there is a defined legal relationship between such parties arising from the composite transaction; (2) the parties' manifest intention demonstrates unified dispute resolution through arbitration; (3) the disputes are intrinsically interlinked and capable of composite resolution without risk of conflicting awards on overlapping issues; and (4) no serious challenge is made to the validity, operability or enforceability of the arbitration agreement at the threshold. The expression 'any person claiming through or under' in Section 45 is to be liberally construed to achieve the legislative intent of according primacy to arbitration in international commercial disputes, subject to the exceptions of agreements being null and void, inoperative or incapable of performance. Bifurcation of parties or causes of action is generally not permissible under the 1996 Act, but this does not prevent composite reference of all disputes arising from interlinked agreements forming a unified commercial transaction.
On this section: Primary section under examination; mandates 'shall' refer parties when agreement valid, operative and not null/void/incapable of performance; applies to international commercial arbitration under New York Convention
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Shin-etsu Chemical Co. LTD vs Aksh Optifibre Ltd.
Court's Decision & Legal Precedent
Under Section 45 of the Arbitration and Conciliation Act, 1996, when a judicial authority is seized of an action in a matter where parties have made an arbitration agreement, and an objection is raised that the agreement is null and void, inoperative, or incapable of being performed, the judicial authority must make a final determination on the merits of such objection - not merely a prima facie finding - before referring the parties to arbitration. The mandatory language 'shall' combined with 'unless' conditions, the distinction between Sections 8 and 45, the legislative scheme protecting parties from wasteful international arbitration proceedings on invalid agreements, the precedent interpretation of the analogous Section 3 of the Foreign Awards Act 1961, and the economic realities of international commercial arbitration, all indicate that full adjudication on merits (not prima facie determination) is constitutionally required at the Section 45 referral stage.
On this section: Central provision interpreted; Court held that judicial authority must make final determination on merits regarding validity of arbitration agreement (not merely prima facie) before mandatory reference to arbitration. The mandatory language 'shall' combined with 'unless' conditions requiring satisfaction about agreement validity necessitates full adjudication.
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Shin-etsu Chemical Co. LTD vs Aksh Optifibre Ltd.
Court's Decision & Legal Precedent
The correct approach to be adopted under Section 45 of the Arbitration and Conciliation Act, 1996 at the pre-reference stage is one of a prima facie finding by the trial court as to the validity or otherwise of the arbitration agreement. The court need only arrive at prima facie satisfaction that there exists an arbitral agreement which is not null and void, inoperative or incapable of being performed, and if the trial court finds thus, the parties shall be referred to arbitration. A final determinative finding is not required at the pre-reference stage; such a finding may be made at the post-award stage under Section 48(1)(a) if the award is challenged.
On this section: Core provision under examination; interpreted to require only prima facie satisfaction that arbitration agreement is not null and void, inoperative or incapable of being performed, rather than final determinative finding
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 45
What have the courts held on Section 45 of the Arbitration and Conciliation Act?
Chloro Controls(i) P. LTD vs Severn Trent Water Purification INC (28 Sep 2012) is the leading judgment on this section among those set out below: Primary section under examination; mandates 'shall' refer parties when agreement valid, operative and not null/void/incapable of performance; applies to international commercial arbitration under New York Convention. Another 2 judgments on this section are set out below, all of them from the Supreme Court. They run from 2005 to 2012.
How do I find court cases under Section 45 of the Arbitration and Conciliation Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: Arbitration Act 45, section 45 Arbitration Act, section 45 of the Arbitration and Conciliation Act. People searching for it also type arbitration act s 45. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 3 reported judgments on this section are set out on this page, beginning with Chloro Controls(i) P. LTD vs Severn Trent Water Purification INC (28 Sep 2012).
What should I read with Section 45 of the Arbitration and Conciliation Act, and has it changed?
Its own text turns on section 44 (Definition), so none of them can safely be read on its own. 1 other provision in this corpus refers back to it.
When did Section 45 of the Arbitration and Conciliation Act come into force?
Section 45 of the Arbitration and Conciliation Act, cited as Arbitration Act 45, came into force on 22 Aug 1996, having been enacted on 16 Aug 1996. It is in force as at the date shown on this page.
Other sections of this Act
- 8. Power to refer parties to arbitration where there is an arbitration agreement1029 words
- 11. Appointment of arbitrators1027 words
- 34. Application for setting aside arbitral awards861 words
- 2. Definitions732 words
- 29A. Time limit for arbitral award635 words
- 57. Conditions for enforcement of foreign awards519 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.