Section 11 referral scope limited to prima facie arbitration agreement review; consortium member capacity objections go to the tribunal

At the Section 11 stage, the referral court is confined to a prima facie examination of whether an arbitration agreement exists, and it should not finally decide disputed questions about a consortium member's authority or capacity to invoke arbitration. Issues such as the true parties to the contract, consent of other members, the continuing existence of the consortium, and related maintainability objections involve disputed facts and contractual interpretation, and must ordinarily be left to the arbitral tribunal under Section 16. A detailed inquiry at referral would amount to a mini-trial and conflict with minimal judicial intervention and kompetenz-kompetenz.

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Issues: Whether, at the Section 11 stage, the referral court must finally decide if an individual consortium member has the capacity to invoke arbitration, or whether that question should be left to the arbitral tribunal after a prima facie finding on the existence of an arbitration agreement.

Analysis: The statutory scheme under Section 11(6A) confines the referral court to a prima facie examination of the existence of an arbitration agreement. Questions touching the true parties to the contract, the capacity of an individual consortium member to invoke arbitration, the continuing existence of the consortium, consent of other members, and related maintainability objections involve disputed facts and contractual construction. Those matters fall within the arbitral tribunal's jurisdiction under Section 16, which can rule on its own jurisdiction and on objections to the existence or validity of the arbitration agreement. Entertaining such objections in detail at the referral stage would amount to a mini-trial, contrary to the principle of minimal judicial intervention and the doctrine of kompetenz-kompetenz.

Conclusion: The referral court was justified in constituting the arbitral tribunal, and the preliminary objections raised by the appellants must be decided by the tribunal.

Ratio Decidendi: At the Section 11 stage, the court is limited to a prima facie examination of the existence of an arbitration agreement, and disputed questions about a consortium member's authority or capacity to invoke arbitration must ordinarily be left to the arbitral tribunal under Section 16.

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