Review of Section 11 orders is impermissible and optional arbitration clauses lack mandatory binding intent.

The petitioner filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (the "Act") for the appointment of an arbitrator.

On April 19, 2024, the Court dismissed the application (AP/818/2023) as maintainable because the petitioner’s advocate conceded that the arbitration clause was misconceived and invalid.

The Court found Clause 17 of the agreement—which stated parties "can appoint any Arbitrator with the consent of other party"—to be "unintelligible and meaningless".

The petitioner subsequently filed the present review application (RVWO/23/2024), seeking to reopen the order on the grounds that the word "Arbitrator" in the clause sufficiently demonstrated an intent to arbitrate, constituting an error apparent on the record.

1. Whether an order passed under Section 11 of the Arbitration and Conciliation Act, 1996, is subject to review jurisdiction.

2. Whether a party can seek a review of an order passed based on a recorded concession made by their advocate.

3. Whether an arbitration clause providing that parties "can" appoint an arbitrator with mutual consent constitutes a valid and binding arbitration agreement.

The Court applied the principle that the Arbitration and Conciliation Act, 1996, is a "self-contained Code" with limited scope for judicial intervention, generally precluding review of Section 11 orders to maintain the principle of minimal judicial interference (Hindustan Construction Company Ltd. v. Bihar Rajya Pul Nirman Nigam Ltd.; BSNL v. Nortel Networks (India) (P) Ltd.).

It relied on Jagdish Chander v. Ramesh Chander, which dictates that an arbitration agreement must reflect a definitive, mandatory, and mutual intention to refer disputes to arbitration.

Furthermore, the court applied Vimleshwar Nagappa Shet v. Noor Ahmad Sheriff, holding that a recorded concession by counsel is binding and cannot be reviewed merely due to a change of advocates.

The Court first addressed the petitioner’s concession, noting that the original dismissal was passed "at the invitation of the petitioner".

It held that a change of advocates does not provide a ground to review a factual recording of a concession made in open court.

On maintainability, the Court reasoned that the Act prohibits "back-door" attempts to re-agitate issues already determined under Section 11, as the statute aims for expediency and finality.

Turning to the merits of the clause, the Court observed that the use of the word "can" indicates an optional or contingent arrangement rather than a binding obligation.

The Court distinguished Visa International Ltd. v. Continental Resources (USA) Ltd., noting that unlike the mandatory "shall" used in that case, the present clause required "further agreement" between the parties to initiate arbitration.

Consequently, the clause lacked consensus ad idem and was deemed incapable of enforcement.

It held that there was no scope for review of a Section 11 order under the Act and that the arbitration clause was inherently tentative and non-binding.

The Court affirmed that Clause 17 did not constitute a valid arbitration agreement and maintained the dismissal of the original Section 11 application.