Power to refer parties to arbitration where there is an arbitration agreement
Section 8 of the Arbitration and Conciliation Act, 1996 deals with power to refer parties to arbitration where there is an arbitration agreement. A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of th The Act came into force on 22 Aug 1996.
1[(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.]
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof:
2[Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.]
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
STATE AMENDMENTS
Jammu and Kashmir and Ladakh (UTs).--
Insertion of section 8A and section 8B.--After section 8, insert the following sections, namely:--
"8A. Power of the court, seized of petitions under sections 9 or 11 of the Act, to refer the dispute to Mediation or Conciliation.--(1) If during the pendency of petitions under sections 9 or 11 of the Act, it appears to the court, that there exists elements of a settlement which may be acceptable to the parties, the court may, with the consent of parties, refer the parties, for resolution of their disputes, to,--
(a) mediation; or
(b) conciliation.
(2) The procedure for reference of a dispute to mediation is as under--
(a) where a dispute has been referred for resolution by recourse to mediation, the procedure framed under that Act shall apply;
(b) in case of a successful resolution of the dispute, the Mediator shall immediately forward the mediated settlement to the referral court;
(c) on receipt of the mediated settlement, the referral court shall independently apply its judicial mind and record a satisfaction that the mediated settlement is genuine, lawful, voluntary, entered into without coercion, undue influence, fraud or misrepresentation and that there is no other legal impediment in accepting the same;
(d) the court shall record a statement on oath of the parties, or their authorised representatives, affirming the mediated settlement as well as a clear undertaking of the parties to abide by the terms of the settlement;
(e) if satisfied, the court shall pass an order in terms of the settlement;
(f) if the main petition, in which the reference was made is pending, it shall be disposed of by the referral court in terms thereof;
(g) if the main petition, in which the reference was made stands disposed of, the mediated settlement and the matter shall be listed before the referral court, which shall pass orders in accordance with clauses (iii), (iv) and (v);
(h) such a mediated settlement, shall have the same status and effect as an arbitral award and may be enforced in the manner specified under section 36 of the Act.
(3) With respect to reference of a dispute to conciliation, the provisions of Part II of this Act shall apply as if the conciliation proceedings were initiated by the parties under the relevant provision of this Act.
8B. Power of the court, seized of matters under sections 34 or 37 of the Act, to refer the dispute to Mediation or Conciliation.--(1) If during the pendency of a petition under section 34 or an appeal under section 37 of the Act, it appears to the court, that there exists elements of a settlement which may be acceptable to the parties, the court may, with the consent of parties, refer the parties, for resolution of their disputes, to:--
(a) mediation; or
(b) conciliation.
(2) The procedure for reference of a dispute to mediation is as under:--
(a) where a dispute has been referred for resolution by recourse to mediation, the procedure framed under the Act shall apply;
(b) in case of a successful resolution of the dispute, the Mediator shall immediately forward the mediated settlement to the referral court;
(c) on receipt of the mediated settlement, the referral court shall independently apply its judicial mind and record a satisfaction that the mediated settlement is genuine, lawful, voluntary, entered into without coercion, undue influence, fraud or misrepresentation and that there is no other legal impediment in accepting the same;
(d) the court shall record a statement on oath of the parties, or their authorized representatives, affirming the mediated settlement, a clear undertaking of the parties to abide by the terms of the settlement as well as statement to the above effect;
(e) if satisfied, the court shall pass an order in terms of the settlement;
(f) if the main petition, in which the reference was made is pending, it shall be disposed of by the referral court in terms thereof;
(g) if the main petition, in which the reference was made stands disposed of, the mediated settlement and the matter shall be listed before the referral court, which shall pass orders in accordance with clauses (iii), (iv) and (v);
(h) such a mediated settlement, shall have the status of a modified arbitral award and may be enforced in the manner specified under section 36 of the Act.
(3) With respect to reference of a dispute to conciliation, the provisions of Part III of the Act, shall apply as if the conciliation proceedings were initiated by the parties under the relevant provision of this Act."
[Vide the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated (18-3-2020) and Vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O. 3774(E), dated (23-10-2020).]
Section 8, 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 2
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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Cox and Kings Ltd. v. SAP India Pvt. Ltd.
Court's Decision & Legal Precedent
Constitution Bench: the group-of-companies doctrine is part of Indian arbitration law. A non-signatory may be bound by an arbitration agreement if there is a clear intention, deduced from the composite transaction, common subject-matter and conduct of the parties. Referral courts under ss.8/11 make only a prima facie enquiry; the tribunal decides joinder. Chloro Controls is retained but restated.
On this section: Group-of-companies: a non-signatory may be referred under s.8 where a composite transaction shows intent to bind the group.
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Vidya Drolia v. Durga Trading Corporation
Court's Decision & Legal Precedent
Four-fold test of non-arbitrability. Referral courts under ss.8/11 do a limited prima facie review; the arbitral tribunal is the default forum for the full enquiry (kompetenz-kompetenz), subject to rare cases of deadwood claims.
On this section: Judicial authority under s.8 refers unless the arbitration agreement is non-existent or the dispute is demonstrably non-arbitrable.
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A. Ayyasamy vs A. Paramasivam
Court's Decision & Legal Precedent
Mere allegations of fraud, simpliciter, are insufficient to exclude a dispute from arbitration. A court may refuse to refer a dispute to arbitration on the ground of fraud only where it finds that there are very serious allegations of fraud which: (1) make a virtual case of criminal offence, or (2) are so complicated that they can be decided only by a civil court on appreciation of voluminous evidence, or (3) involve serious allegations of forgery/fabrication of documents in support of the fraud plea, or (4) the fraud is alleged against the arbitration provision itself, or (5) the fraud is of such nature that it permeates the entire contract including the arbitration clause, meaning the fraud goes to the validity of the entire contract or the arbitration clause itself. Where fraud allegations concern simple matters of accounts touching upon internal affairs of the party inter se with no public domain implication, arbitration clause need not be avoided and parties shall be relegated to arbitration. The focus of the court under Section 8 must be on whether the nature of the dispute is such that it cannot be referred to arbitration, not on whether the court has jurisdiction.
On this section: Mandatory obligation of judicial authority to refer parties to arbitration where an action is brought in a matter subject to arbitration agreement, unless agreement is null and void, inoperative or incapable of performance. Court interpreted this as mandatory, leaving no discretion when arbitration agreement exists
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Booz-allen & Hamilton INC vs Sbi Home Finance Ltd.
Court's Decision & Legal Precedent
Disputes relating to enforcement of mortgages by sale of mortgaged immovable property constitute actions in rem that are inherently non-arbitrable and must be adjudicated exclusively by courts of law. Where a suit is filed for enforcement of a mortgage with a request for sale of the mortgaged property, the matter cannot be referred to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996, even if an arbitration agreement exists covering the dispute, because: (1) the nature and scheme of mortgage suits under Order 34 of the Code of Civil Procedure and the Transfer of Property Act reserve such adjudication exclusively for public fora (courts), (2) arbitral tribunals cannot perform the comprehensive functions required including joining all interested parties, protecting rights of third parties, taking accounts, declaring amounts due, and directing sale procedures, and (3) bifurcation of the suit into arbitrable and non-arbitrable components is not permissible under Section 8 of the Act.
On this section: Central provision requiring judicial authority to refer parties to arbitration if application is made before first statement on substance of dispute; Court analyzed scope and mandatory nature of this provision
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Lindsay International Pvt. LTD vs Ifgl Refractories Limited
Court's Decision & Legal Precedent
When a party raises a prima facie objection to the existence or validity of an arbitration agreement, the court must apply a narrow examination limited to: (1) whether the agreement is in writing or contained in exchange of letters/telecommunication; (2) whether the core contractual ingredients of the arbitration agreement are fulfilled; and (3) only in rare cases, whether the subject matter is arbitrable. If the court cannot determine on a prima facie basis that no valid arbitration agreement exists, it must refer the matter to arbitration, applying the principle 'when in doubt, refer to arbitration.' The arbitral tribunal itself is empowered to decide questions of its own jurisdiction and arbitrability, subject to parties' right to challenge such decisions under Section 34.
On this section: Court's obligation to refer parties to arbitration when a valid arbitration agreement exists; analysis of scope of judicial interference at this stage; prima facie examination standard
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Srei Infrastructure Finance Limited vs Tuff Drilling Private Limited
Court's Decision & Legal Precedent
An arbitral tribunal which has terminated proceedings under Section 25(a) of the Arbitration and Conciliation Act, 1996 due to non-filing of claim by the claimant retains jurisdiction to consider an application for recall of the order terminating the proceedings if the claimant shows sufficient cause. The tribunal does not become functus officio after passing an order under Section 25(a). The phrase 'where without showing sufficient cause' in Section 25(a) contemplates that sufficient cause can be shown either before or after the termination order is passed. If sufficient cause is shown, the arbitral tribunal can accept the statement of claim and permit the claimant to file the claim even after the time fixed under Section 23(1) has expired. The principles underlying Order 9 Rule 13 of the Civil Procedure Code, 1908 can be invoked by the arbitral tribunal to recall orders passed under Section 25(a) on sufficient cause being shown. The non-use of the phrase 'the mandate of the arbitral tribunal shall terminate' in Section 25(a), as opposed to its use in Section 32(3), indicates that the legislature intended that if the claimant shows sufficient cause, the proceedings can be re-commenced.
On this section: Obligation of judicial authority to refer parties to arbitration when subject matter is covered by arbitration agreement
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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: Contrasted with Section 45 to show different legislative intent - Section 8 uses narrower language while Section 45 intentionally uses 'any person claiming through or under' to permit broader reference of parties
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Afcons Infra. Ltd. vs Cherian Varkey Constn Co. P. LTD
Court's Decision & Legal Precedent
A civil court cannot refer a suit to arbitration under Section 89 of the Code of Civil Procedure unless all parties to the suit agree to such reference. Even though Section 89 mandates courts to refer pending suits to alternative dispute resolution processes, reference to arbitration specifically requires mutual consent of all parties, as arbitration is governed by the Arbitration and Conciliation Act, 1996 which contemplates the existence of an arbitration agreement. While non-adjudicatory ADR processes (Lok Adalat, mediation, judicial settlement) can be imposed by court discretion after identifying suitable cases, adjudicatory arbitration process cannot be imposed without party consent. The proper procedure requires courts to invoke Section 89 suo moto after completion of pleadings and before framing issues, consider whether the case falls under excluded categories, and only for suitable cases, explain the five ADR options to parties and ascertain their preferences, with arbitration and conciliation requiring mutual consent.
On this section: Establishes power to refer parties to arbitration where arbitration agreement exists; court cannot refer without agreement
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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: Compared with Section 45; Court noted Section 8 has no provision for examining validity of arbitration agreement at reference stage, indicating legislative intent differs between domestic (Section 8) and international (Section 45) arbitration. Section 8 provides mandatory reference without validity examination; Section 45 requires validity examination.
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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: Contrasted with Section 45 to show that Section 8 leaves no discretion to the court in referring parties to arbitration, whereas Section 45 empowers the court to refuse reference if it finds the agreement null and void, inoperative or incapable of being performed
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 8
What have the courts held on Section 8 of the Arbitration and Conciliation Act?
Cox and Kings Ltd. v. SAP India Pvt. Ltd. (06 Dec 2023) is the leading judgment on this section among those set out below: Group-of-companies: a non-signatory may be referred under s.8 where a composite transaction shows intent to bind the group. Another 9 judgments on this section are set out below, all of them from the Supreme Court. They run from 2005 to 2023.
How do I find court cases under Section 8 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 8, section 8 Arbitration Act, section 8 of the Arbitration and Conciliation Act. People searching for it also type arbitration act section 8 application maintainability and arbitration act 1940 section 8. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 10 reported judgments on this section are set out on this page, beginning with Cox and Kings Ltd. v. SAP India Pvt. Ltd. (06 Dec 2023).
What should I read with Section 8 of the Arbitration and Conciliation Act, and has it changed?
Its own text turns on section 34 (Application for setting aside arbitral awards), so none of them can safely be read on its own. 2 other provisions in this corpus refer back to it.
When did Section 8 of the Arbitration and Conciliation Act come into force?
Section 8 of the Arbitration and Conciliation Act, cited as Arbitration Act 8, 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
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.