Validity of an unstamped arbitration agreement | Judgement SummaryValidity of Unstamped Arbitration Agreement
On 13 December 2023, a seven-judge Constitution Bench unanimously held that an unstamped arbitration agreement was not void ab initio i.e. void from the beginning.
The judgement overruled the five-judge bench decision in N.N. Global Mercantile Private Ltd. v. Indo Unique Flame Ltd.(April 2023) which held that an unstamped arbitration agreement was unenforceable and void ab initio. The seven-judge bench was hearing a challenge against the decision in N.N. Global.
The judgement also overruled SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd.(2011) and partly overruled Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd. (2019) which held that an unstamped arbitration agreement lacks legal existence and is unenforceable.
In upholding the validity of an unstamped arbitration agreement, the judgement detailed the interplay between the Indian Stamp Act (1899), the Arbitration Act (1996) and the Indian Contract Act (1872).
Under the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’), if parties cannot agree on an arbitrator they may approach High Courts or the Supreme Court to appoint one for them. At this stage, the Court can only confirm the ‘existence’ of an arbitration agreement and cannot get involved in the case any further. This restriction was imposed through the 2015 Amendment to the Arbitration Act so that arbitration disputes could be speedily disposed of.
However, the Supreme Court has gone back and forth on what constitutes a valid arbitration agreement to prove its ‘existence’. Specifically, if the parties haven’t paid stamp duty on the contents of the agreement, is it still valid?
In 2011 a Supreme Court Division Bench decided the case of SMS Tea Estate Pvt. Ltd. v Chandmari Tea Company Pvt. Ltd. The Bench held that an unstamped arbitration agreement cannot be enforced. This position was restated in Garware Wall Ropes Ltd. v Coastal Marina Constructions and Engineering. Ltd (2019), where the SC held that contracts (including agreements) are only enforceable if they are duly stamped.
Following a dispute over the invocation of a bank guarantee in a contract for coal transportation between Indo Unique Flame Ltd. and N.N. Global Mercantile Pvt. Ltd., the latter approached the Supreme Court and claimed the agreement was unstamped and unenforceable. In January 2021, a 3-Judge Bench disagreed with the decisions in SMS Tea Estates and Garware. However, despite overruling the two decisions the Bench also referred the case to a 5-Judge Constitution Bench to settle the debate once and for all.
In April 2023 , a bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar in a 3:2 majority,held that an unstamped arbitration agreement was void and unenforceable. Writing the majority opinion, Justice Joseph affirmed the views in SMS Tea Estates and Garware. In the dissent, Justices Rastogi and Roy, cautioned against judicial intervention in arbitration cases. They opined that an unstamped arbitration agreement was valid at the pre-referral stage. The judgment resulted in serious criticism.
In September 2023, a five-judge bench headed by CJI Chandrachud with S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant were hearing a curative petition in the case of Dharmaratnakara Rai v Bhaskar Raju (2020). A three-judge bench of CJI S.A. Bobde and Justices B.R. Gavai and Surya Kant in Dharmaratnakara had held that an unstamped agreement with an arbitration clause could not be acted upon by the Court. The bench hearing the curative petition also took note of the NN Global decision to be reconsidered, and referred the case to a seven-judge bench.
Unstamped arbitration agreement is inadmissible as evidence but not void
The judgement held that an unstamped agreement is valid but inadmissible as evidence in a Court of law. For this, they relied on Section 35 of the Stamp Act which says that an unstamped instrument is inadmissible as evidence. However, Section 42 of the same Act states that an insufficiently stamped instrument may be admissible in evidence once the stamp duty and the penalty, if any, are paid. This means that an unstamped arbitration agreement is a curable defect.
The judgement stressed the difference between the “admissibility of an instrument in evidence” and the validity of an instrument. An agreement is void when it is unenforceable in a court of law. But, admissibility is limited to whether the Court can rely on the said instrument while adjudicating a case. Thus, a void agreement may still be admissible in Court and vice versa.
Therefore, the bench concluded that Section 35 of the Stamp Act, speaks specifically about the admissibility of the instrument as evidence and not about its validity.
This is in stark contrast to the majority judgement in N.N. Global which conflated this distinction between admissibility and validity.
“Arbitral autonomy” prevents judicial interference
The judgement clarified that the principle of “arbitral autonomy” is a globally recognised arbitration standard. They held that this principle is enshrined under Section 5 of the Arbitration Act. The judgement noted that the main purpose of the Indian Arbitration Act was to provide “speedy and efficient resolution[s]” to disputes between parties in connection with their obligations.
“Arbitral autonomy” flows from the mutual intention of parties and the authority of arbitral tribunals to adjudicate on matters. This means that parties can exercise their rights in a contract and clearly state what they want without getting into the complex legal procedure. The principle of judicial non-interference reflects the autonomy of arbitral tribunals.
Every provision of the Act, the judgement said, must be interpreted per this principle. Additionally, it also states that the Arbitration Act is a self-contained code, which means that anything covered by this Act should follow the procedure defined by the Act, and not the general legal process.
Arbitration Act recognises the separability of arbitration agreement
The judgement held that the separability presumption is incorporated under Section 16 of the Arbitration Act. The concept recognises the judicial independence of the arbitration agreement from the underlying contract in which it is contained. Simply put, if an arbitration clause is included in a contract, it can be a separate agreement in itself.
Separability distinguishes the contract, which deals with the substantive rights and contractual obligations of the parties, from the arbitration agreement. The arbitration agreement sets out a procedural framework to resolve disputes that arise out of these contracts.
Most importantly, separability ensures that the arbitration agreement survives despite the termination of underlying contracts. This means that if the contract is terminated, disputes may still be resolved under the contract’s arbitration clause.
The concept of separability is derived from the Doctrine of Competence-Competence, which sets out the authority of the arbitral tribunal to determine its own jurisprudence. This means that the tribunals decide on all substantive matters of a dispute including the validity and existence of the arbitration agreement.
The judgement traced the approach of different jurisdictions in the world, and their application of the concept of separability and competence-competence principles. In the United Kingdom, the judicial approach is to consider the arbitration clause in the contract as a distinct agreement. With respect to the doctrine of competence-competence, the English courts have held that although the arbitral tribunal is empowered to determine its jurisdiction, the determination would be subject to examination by the courts.
Similarly, the US Federal Arbitration Act presumes the doctrine of competence-competence and the separability of arbitration agreements from the underlying contracts.
In Singapore, the law statutorily recognises the doctrine of separability and competence-competence through Section 21 of the Singaporean Arbitration Act, 2001.
In India, the doctrine of presumption is enshrined under Section 16 of the Arbitration Act. This provision states that the arbitral tribunal is authorised to rule on its own jurisdiction and on any disputes related to the existence or validity of an arbitration agreement. The competence-competence principle finds its roots in Section 17 of the Act which states that the arbitral tribunal has the power to issue enforceable orders on its competence and jurisdiction.
Arbitration Act, Stamp Act, and Indian Contract Act must be read harmoniously
The judgement held that the three statutes have to be harmoniously interpreted together in deciding the validity of an unstamped arbitration agreement. It held that the Arbitration Act would have primacy regarding arbitration agreements over the other two statutes namely the Stamp Act and Contract Act.
To elaborate, the Judgement lists down the following reasons:
- The Arbitration Act is a special law whereas the Stamp Act and Contract Act are general laws
- The principle of “arbitral autonomy” under Section 5 of the Arbitration Act overrides other provisions.
- Even though the legislators were aware of the Stamp Act while enacting the Arbitration Act, they did not specify stamping as a pre-condition for a valid arbitration agreement.
The judgement also held that the interpretation of “arbitral autonomy” under Section 5 in N.N. Global would make the principle meaningless. In N.N. Global, the five-judge bench held that the Court had jurisdiction to consider the validity of an arbitration agreement while considering the appointment of arbitrators. The seven-judge bench held that such interpretation is erroneous and amounts to judicial intervention.
Intent of arbitration to minimise judicial intervention
The judgement emphasised that arbitration is supposed to be a “one-stop forum” for dispute resolution with minimal judicial intervention. Applying the competence-competence doctrine, the judgement held that the power and authority to decide the admissibility of an unstamped document lies with the arbitral tribunal, not the courts.
The validity of the underlying contract will be determined by the existence of a valid arbitration agreement. The bench also interpreted the word “shall” in the procedure for the examination and impounding of instruments under the Stamp Act. It held that although the word “shall” is mandatory in nature, it must be interpreted by the Court after determining the intention of the legislature at the time of making the statute.
In the present case, the Court observed that the arbitral tribunal is bound by the Stamp Act. The bench held that the tribunal must ensure that provisions of the Arbitration Act are not accomplished in contravention of the Stamp Act.
SMS Tea Estates and Garware Wall Ropes judgments overruled
The Court in NN Global had referred to its previous rulings in SMS Tea Estates (2011) and Garware Wall Ropes (2019) to decide whether an unstamped arbitration agreement could be enforced.
In SMS Tea Estates, it was held that an arbitration agreement in an unstamped contract cannot be enforced, and therefore, the courts were permitted to impound documents under Section 33 of the Stamp Act during the stage of appointment of arbitrators.
In Garware Wall Ropes Ltd., a two-judge bench determined that an arbitration agreement in an unstamped instrument lacks legal existence. Relying on this, the Court held that Garware Wall Ropes misinterprets the law by deeming unstamped arbitration agreements as non-existent.
Consequently, the Court overruled the judgment in SMS Tea Estates and the Garware Wall Ropes case as they were “wrongly decided”.
Justice Khanna’s concurring opinion
In his concurring opinion, Justice Khanna provided an overview of the Sections of the Stamp Act to support the opinion of the bench. He concluded that Section 33 of the Stamp Act states that an instrument must be produced before a person who is authorised to receive evidence during the performance of their functions. Also, Section 35 allows admission of unstamped or under-stamped instruments, provided they have been duly stamped afterwards, including payment of duty and penalty.