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Section 45 of the Arbitration and Conciliation Act, 1996: Power of Judicial Authority to Refer Parties to Arbitration

Section 45 governs referral to arbitration in matters covered by a New York Convention arbitration agreement under Part II of the Arbitration and Conciliation Act, 1996. A judicial authority must ordinarily refer the parties to arbitration when the statutory conditions are met, unless it prima facie finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

Updated for current law: September 7, 2026.

Key point: Section 45 is designed to favor referral to arbitration at the threshold stage. The judicial authority conducts a prima facie examination of the arbitration agreement rather than a full merits trial on every jurisdictional objection.

Section 45: 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 claiming through or under him, refer the parties to arbitration, unless it prima facie finds that the said agreement is null and void, inoperative or incapable of being performed.

The words "unless it prima facie finds" were substituted by Section 11 of the Arbitration and Conciliation (Amendment) Act, 2019, with effect from August 30, 2019, replacing the earlier words "unless it finds".

Official statute: Arbitration and Conciliation Act, 1996 on India Code.

When does Section 45 apply?

Section 45 operates in Chapter I of Part II of the 1996 Act, which concerns New York Convention awards. The judicial authority must be seized of an action in a matter covered by an arbitration agreement of the kind referred to in Section 44.

A request for reference may be made by a party to the arbitration agreement or by a person claiming through or under such a party. If the statutory conditions are satisfied, referral is mandatory unless the limited exception stated in Section 45 is established on a prima facie examination.

What does the prima facie test under Section 45 mean?

The 2019 amendment expressly requires only a prima facie finding at the referral stage. This narrows the court's threshold inquiry and supports the principle that detailed jurisdictional issues can ordinarily be examined by the arbitral tribunal, subject to the safeguards available under the Act.

The Supreme Court has treated Section 45 as requiring a threshold examination of whether the arbitration agreement is valid and workable. The referral court is not expected to conduct a full trial of disputed jurisdictional facts merely because an objection to arbitration has been raised.

When can referral be refused?

Section 45 allows refusal only where the judicial authority prima facie finds that the arbitration agreement is:

  • Null and void: the agreement is legally invalid from the outset or is affected by a defect that makes it void under the applicable law.
  • Inoperative: the agreement may once have been valid but has ceased to have legal effect, for example because it has been discharged, revoked or otherwise rendered ineffective.
  • Incapable of being performed: the agreement cannot practically or legally be carried into effect.

These expressions are part of the Convention-based statutory framework and should be applied to the arbitration agreement itself, not used as a general invitation to decide the merits of the underlying commercial dispute.

Meaning of "claiming through or under" a party

Section 45 permits a request not only by a signatory party but also by a person claiming through or under such party. Whether a particular non-signatory falls within this expression depends on the legal relationship, the arbitration agreement and the applicable principles governing consent, succession, assignment or derivative rights.

Relationship with Part II and the Code of Civil Procedure

Section 45 begins with a non-obstante clause overriding anything inconsistent in Part I of the Arbitration and Conciliation Act, 1996 or in the Code of Civil Procedure, 1908. Its function is therefore specific to referral under the New York Convention regime in Part II.

The provision should be read with Section 44, which defines a foreign award for the Chapter, and the later enforcement provisions including Section 46, Section 48 and Section 50.

Supreme Court interpretation of Section 45

The Supreme Court has repeatedly emphasized the prima facie nature of the referral inquiry under Section 45. In later decisions discussing the provision, the Court has recognized that the statutory language requires the judicial authority to examine whether the arbitration agreement is null and void, inoperative or incapable of being performed, while maintaining a referral-oriented approach at the threshold stage.

Practical effect: A party resisting referral must identify a defect in the arbitration agreement that falls within the limited statutory exceptions. Mere disputes about contractual performance, liability or the underlying merits will not ordinarily justify refusal of a Section 45 reference.

Official Supreme Court resources: Supreme Court of India.

Section 45 in simple terms

If a court or other judicial authority is dealing with a dispute that the parties agreed to arbitrate under a New York Convention arbitration agreement, Section 45 ordinarily requires the dispute to be sent to arbitration. The court may refuse only if it prima facie finds that the arbitration agreement itself is legally invalid, no longer operative or incapable of being performed.