Arbitration, Mediation and Conciliation · Arbitration: Introduction, Agreements and its Institutions

Reference to Arbitration by a Judicial Authority (Sections 8 and 45)

Updated 11 October 2026 · Fact-checked

When a party sues in court on a matter covered by an arbitration agreement, the court must send the parties to arbitration if a party applies in time. Section 8 applies to Part I, with a deadline and a prima facie test. Section 45 applies to foreign-award agreements under Part II.

Understand Reference to Arbitration by Judicial Authority

An arbitration agreement is a promise to take disputes to arbitration instead of court. If one party breaks that promise and files a suit, the other party needs a way to hold them to it. Sections 8 and 45 give that way. They tell the court to step back and refer the parties to arbitration.

Section 8 works in Part I, the domestic framework. The judicial authority must refer the parties if a party to the agreement, or a person claiming through or under that party, applies. The application must come not later than the date of submitting his first statement on the substance of the dispute. The word is "shall". The court has no free choice once the conditions are met.

The court's only gate is a limited check. It must refer unless it finds that prima facie no valid arbitration agreement exists. Prima facie means at first look. The court does not hold a full trial on validity. The tribunal can decide deeper questions itself.

Section 45 works in Part II. It applies when the parties have made an agreement referred to in Section 44. It starts with "notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908". At the request of one of the parties, or a person claiming through or under a party, the court shall refer the parties unless it prima facie finds that the agreement is null and void, inoperative or incapable of being performed. The words "prima facie" were added by Act 33 of 2019, w.e.f. 30-8-2019.

The two sections look alike but differ in detail. Section 8 has a timing rule and a document rule. The text of Section 45 as supplied has neither. Section 8 also says arbitration may begin or continue while the application is pending.

Key rules to remember

Section 8(1): duty to refer: Action on a matter covered by an arbitration agreement + application by a party (or person claiming through or under him) not later than the first statement on the substance of the dispute → refer, unless prima facie no valid arbitration agreement exists; The duty is mandatory. The application must be made by a party; the court does not act on its own.
Section 8(2): documents: Application must be accompanied by the original arbitration agreement or a duly certified copy; Proviso: if the other party holds the original or certified copy, file a copy of the agreement with a petition asking the court to call upon that party to produce it.
Section 8(3): parallel arbitration: Even while the Section 8 application is pending, arbitration may be commenced or continued and an award made; A pending court application does not stop the arbitration.
Section 45: Part II reference: Action on a matter covered by an agreement referred to in Section 44 + request by a party → refer, unless court prima facie finds the agreement null and void, inoperative or incapable of being performed; Applies notwithstanding Part I and the Code of Civil Procedure, 1908.
Test applied by the court: Section 8: prima facie no valid arbitration agreement. Section 45: prima facie null and void, inoperative or incapable of being performed; Both are limited, first-look tests. Neither is a full trial.

How to solve Reference to Arbitration by Judicial Authority questions

Use this method for any case-based question where a party goes to court despite an arbitration clause.

1Identify the forum and the agreement. Is it a domestic arbitration under Part I (Section 8) or an agreement referred to in Section 44 (Section 45)?
2Check that an action is pending before a judicial authority on a matter that is the subject of the arbitration agreement.
3Identify who applies. It must be a party or a person claiming through or under a party.
4For Section 8, check timing: was the application made not later than the date of submitting the first statement on the substance of the dispute?
5For Section 8, check documents: original agreement or duly certified copy, or the proviso route if the other side holds it.
6Apply the prima facie test: Section 8 asks whether no valid agreement exists; Section 45 asks whether it is null and void, inoperative or incapable of being performed.
7Conclude: the court shall refer the parties. Add that for Section 8, the arbitration can continue even while the application is pending.

Quickest way: Five-point check for Section 8 and 45 questions

When to use it: Use it when you have limited time and the facts clearly show a suit filed despite an arbitration clause.

Name the section: Part I domestic gives Section 8; Section 44 agreement gives Section 45.
Write the rule in one line: the court shall refer if a party applies, unless the prima facie test fails.
Tick the Section 8 extras: timing (before the first statement on substance) and documents (original or certified copy).
Apply the facts in two or three lines against each condition.
Conclude with the order: refer the parties to arbitration, or refuse if the agreement prima facie fails.

Common mistakes in Reference to Arbitration by Judicial Authority

Saying the court can refer the parties on its own motion.
Students remember "shall refer" and forget the trigger.
Fix: State that a party, or a person claiming through or under a party, must apply. Section 45 says "at the request of one of the parties".
Ignoring the deadline in Section 8.
Students focus on the prima facie test only.
Fix: Always check whether the application was made not later than the date of submitting the first statement on the substance of the dispute.
Applying the Section 8 time limit and document rule to Section 45.
The two sections look similar.
Fix: Treat them separately. The text of Section 45 gives no such timing or document condition. State only what each section says.
Thinking the court holds a full trial on validity of the agreement.
Students confuse the court's gate with the tribunal's jurisdiction.
Fix: Write that the test is prima facie. Section 8 asks if no valid agreement prima facie exists. Section 45 uses prima facie for null and void, inoperative or incapable of being performed.
Believing arbitration must stop once a Section 8 application is filed.
Students assume court and tribunal cannot run together.
Fix: Quote Section 8(3): arbitration may be commenced or continued and an award made even while the issue is pending.
Dropping the original agreement requirement.
It looks like a technicality.
Fix: Section 8(2) says the application shall not be entertained without the original or a duly certified copy, subject to the proviso when the other party holds it.

Worked examples

Example 1

Sharma Traders Pvt Ltd and Kaveri Logistics Ltd, both Indian companies, have a supply contract with a valid arbitration clause. Kaveri files a suit in a civil court for ₹40,00,000. Sharma files its written statement denying liability on merits, and two months later applies under Section 8 to refer the dispute to arbitration. Advise on the application.

Show the solution

Provision: Section 8(1) requires the application to be made not later than the date of submitting the first statement on the substance of the dispute.
Facts: Sharma first filed a written statement denying liability on merits. That is a statement on the substance of the dispute.
Analysis: The application came two months after that statement, so it was made after the permitted date.
Conclusion: The condition in Section 8(1) is not met, so the court is not bound to refer the parties on this application.

Answer: The application is out of time under Section 8(1). Sharma should have applied no later than the date of its first statement on the substance of the dispute. The court is not bound to refer the parties to arbitration on this application.

Example 2

Meridian GmbH and Arya Exports Ltd made an agreement referred to in Section 44. Meridian sues Arya in an Indian court. Arya requests the court to refer the parties to arbitration. Meridian argues the agreement is incapable of being performed. State how the court will decide.

Show the solution

Provision: Section 45 applies notwithstanding Part I and the Code of Civil Procedure, 1908.
Trigger: Arya, a party, has requested reference, which is what Section 45 requires.
Test: The court shall refer the parties unless it prima facie finds the agreement null and void, inoperative or incapable of being performed.
Analysis: Meridian must show on a first look that the agreement is incapable of being performed. A detailed trial is not required.
Conclusion: If this is not prima facie shown, the court shall refer the parties; if it is shown, the court may decline.

Answer: The court shall refer the parties to arbitration under Section 45 unless it prima facie finds the agreement null and void, inoperative or incapable of being performed. Meridian's bare objection does not defeat the reference unless it passes that prima facie test.

Exam tips

Write the section number, the trigger (application by a party), the test and the conclusion in that order. This matches the provision, analysis, conclusion format.
In any Section 8 answer, state the timing rule and the document rule. Examiners often build the facts around them.
Use a two-line contrast between Section 8 and Section 45: Part I against Section 44 agreements, and the different prima facie tests.
Mention the 2019 insertion of prima facie in Section 45 and the 2015 substitution of Section 8(1) as footnoted in the Act, only if you are asked about amendments.
Do not cite case names unless you are sure of them. A clear statement of the statutory text earns the marks.

Practice questions from Arbitration: Introduction, Agreements and its Institutions

Reference to Arbitration by Judicial Authority: frequently asked questions

What is the time limit to apply under Section 8?

The application must be made not later than the date of submitting the first statement on the substance of the dispute. If you file that statement first and apply later, the condition is not met.

What documents must accompany a Section 8 application?

You must file the original arbitration agreement or a duly certified copy. If the other party holds it, file a copy with a petition asking the court to call upon that party to produce the original or certified copy.

What is the difference between Section 8 and Section 45?

Section 8 is in Part I and refers domestic matters, with a timing rule, a document rule and a test of whether prima facie no valid agreement exists. Section 45 is in Part II and applies to agreements referred to in Section 44, with a test of whether the agreement is prima facie null and void, inoperative or incapable of being performed.

Can arbitration go on while a Section 8 application is pending?

Yes. Section 8(3) says arbitration may be commenced or continued and an award made even though the application is pending before the judicial authority.