Arbitration agreement in writing must be undisputed before Section 45 applies in foreign award proceedings

Section 45 applies only where an arbitration agreement falling within Section 44 is shown to be an undisputed agreement in writing, such as a signed clause or an exchange of letters or telegrams. Where the existence and authenticity of the alleged written agreement are themselves denied, the statutory threshold for referral is not met, and the court may refuse to act under Section 45. The kompetenz-kompetenz principle under Section 16 of Part I does not govern Part II proceedings concerning foreign awards; objections to the existence or validity of the arbitration agreement remain for judicial determination. Contractual rules without statutory force cannot override that scheme.

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Issues: Whether the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 and Section 45 of the Arbitration and Conciliation Act, 1996 could succeed when the existence of an arbitration agreement in writing itself was disputed, and whether the arbitral tribunal could determine its own jurisdiction in proceedings governed by Part II of the Act.

Analysis: Section 45 operates only where there is an arbitration agreement falling within Section 44 and the agreement is in writing. The agreement contemplated by Article II of the First Schedule to the Act must be an undisputed written arbitration agreement, including an arbitration clause signed by the parties or contained in an exchange of letters or telegrams. Where the very existence and authenticity of the alleged written agreement are denied, the threshold requirement for invoking Section 45 is not established. The principle of kompetenz-kompetenz under Section 16 of Part I does not govern proceedings under Part II relating to foreign awards, and the power to decide objections to the existence or validity of the arbitration agreement lies with the court. Contractual rules lacking statutory force cannot be imposed on a non-consenting party to override the statutory scheme.

Conclusion: The application was rejected because the applicant failed to establish an undisputed arbitration agreement in writing for the purpose of Section 45, and the matter was left to be treated as a preliminary objection to be considered in the suit.

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