A jurisdiction or governing-law clause does not constitute an arbitration agreement.

The petitioner challenged the Commercial Court’s order referring Com.O.S. No. 1/2022 to arbitration, directing return of the plaint and refund of the court fee.

It contended that the parties’ contracts dated 17 and 24 January 2017 contained no arbitration agreement and that the respondents had not produced the original agreement or a duly certified copy when seeking reference under Section 8 of the Arbitration and Conciliation Act, 1996 (“A&C Act”).

The respondents relied on clauses in both contracts as arbitration clauses, while acknowledging that the originals had not been filed.

1. Whether the clauses in the contracts dated 17 and 24 January 2017 constituted an arbitration agreement between the parties.

2. Whether the Commercial Court could entertain the Section 8 application without the original arbitration agreement or a duly certified copy.

Section 7 of the A&C Act defines an arbitration agreement as an agreement to submit disputes arising from a defined legal relationship to arbitration; it may be a clause in a contract or a separate agreement, must be in writing, and may be evidenced in the ways set out in subsections (3)–(5).

Under Section 8(1), a judicial authority must refer the parties to arbitration where a timely application is made in a matter covered by an arbitration agreement, unless it finds prima facie that no valid arbitration agreement exists.

Section 8(2) requires the application to be accompanied by the original arbitration agreement or a duly certified copy, subject to the statutory proviso where the agreement is retained by the other party.

The Court found that the 17 January contract’s reference to amicable settlement and “Mangalore court jurisdiction only” was, at most, a jurisdiction clause; it did not provide for arbitration.

The 24 January contract’s statement that it was governed and construed under existing UAE law addressed governing law, not arbitration.

Neither document therefore established an arbitration agreement under Section 7.

Further, the original agreement was not produced before the Commercial Court, and the record did not satisfy Section 8(2)’s requirement.

The Commercial Court had therefore erred in referring the suit to arbitration.

It allowed the writ petition and set aside the Commercial Court’s order dated 1 April 2023; pending applications, if any, were closed.