Waiver in Arbitration and

Conciliation Act, 1996

( Sem V )

Adv. Pooja Deelip Patil

• The concept of Waiver of Right to Object can be defined with respect
to a party that proceeds with the arbitration without raising an
objection, even after knowing that a requirement under the
agreement has not been complied with.
• Section 4 of the Arbitration and Conciliation Act, 1996 provides for
circumstances under which a party knowingly fails to comply with
Part I or any other requirement under the arbitration agreement.
• If the party does not raise any objection against the non-complying
party, in the specified time, without undue delay, even after knowing
that the agreement has failed to comply with Part I or any other
requirement under the arbitration agreement, such a party is said to
have waived its right to object
• After an arbitration tribunal rules that the party has waives his right to
object, the party also loses its right to object the non-compliance in
subsequent proceedings in domestic courts. Only objections against
violation of non-mandatory provisions of applicable arbitration law can be
waived.
• However, there are exceptions to this, and objections against violation of
mandatory provisions of arbitration law can also be waived. Section 16(2)
and 16(3) of the Act are the exceptions, and the former provides that a plea
saying that the Arbitral Tribunal does not have jurisdiction cannot be raised
later than the submission of the statement of defence. 
• Section 16(3) provides that an objection can be raised for an arbitral
tribunal exceeding its scope shall be raised as soon as the matter alleged to
be beyond the scope of its authority is raised during the arbitral
proceedings
WAIVER UNDER THE UNCITRAL MODEL LAW

• Indian courts routinely refer to the discussions preceding the

enactment of the Model Law with a view to determine the context in
which a particular article was introduced.5 In the present case, given
that the language of Section 4 of the A&C Act mirrors the language
contained in Article of the Model Law provide insight into the
objective with which a particular phrase or word came to be adopted
by the parties.
• The need for a general principle of waiver was first discussed in the Fifth
Session of the Working Group on International Contract Practices, United
Nations Commission on International Trade Law (“the Working Group”) in the
context of whether an arbitration agreement would stand invalidated if it did
not comply with the requirements of the proposed model law.
• However, it was only in the Sixth Session of the Working Group that the parties
gave form to the general principle of waiver by introducing “Article I quarter”.
• The proposed provision read as follows:—
A party who knows that any provision of, or requirement under, this Law has not
been complied with and yet proceeds with the arbitration without stating his
objection to such non-compliance promptly or, if a time-limit is provided
therefor in this Law, within such period time shall be deemed to have waived his
right to object.”
Sec 4 of A&C Act
4.Waiver of right to object.—A party who knows that—
(a) any provision of this Part from which the parties may derogate, or
(b) any requirement under the arbitration agreement,
has not been complied with and yet proceeds with the arbitration
without stating his objection to such non-compliance without undue
delay or, if a time limit is provided for stating that objection, within that
period of time, shall be deemed to have waived his right to so object.
Sec. 16 of A&C Act
• 16.Competence of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections
with respect to the existence or validity of the arbitration agreement, and for that purpose,—
(a) an arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure
the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the
submission of the statement of defence; however, a party shall not be precluded from raising
such a plea merely because that he has appointed, or participated in the appointment of, an
arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall
be raised as soon as the matter alleged to be beyond the scope of its authority
is raised during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases referred to in sub-section
(2) or sub-section (3), admit a later plea if it considers the delay justified.

(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or
sub-section (3) and, where the arbitral tribunal takes a decision rejecting the
plea, continue with the arbitral proceedings and make an arbitral award.

(6) A party aggrieved by such an arbitral award may make an application for
setting aside such an arbitral award in accordance with section 34.
Waiver of the right to object 

• It is referenced under Section 4 of the Arbitration and Conciliation Act

1996. A party who realizes that any provisions of this Section from
which the parties may discredit, or any necessity under the mediation
understanding; has not been agreed to but continues with the
intervention without expressing his issue with such resistance
immediately or, if a period limit is accommodated expressing that
protest, inside that timeframe, will be esteemed to have postponed
his entitlement to so question. 
Conclusion

• Section 4 of the Arbitration and Conciliation Act, 1996 is an esteeming

arrangement. It sets out that, where a party goes before with the
mediation without expressing his issue with the rebelliousness of any
arrangement of Part I from which the parties may discredit or any
prerequisite under assertion understanding, it will be considered that
he has postponed his entitlement to so object. In 
Basheshar Nath vs. Commissioner of Income Tax 1959 AIR 149, the
Supreme Court held that ‘There must be a global surrender of a
known right or the intentional surrender or deserting of a known
existing legitimate right, or direct, for example, warrants an induction
of surrender of a known right or benefit’. 
• In Union of India vs. MAA Agency, it was held that it was available to
the applicant to challenge either the locale of the arbitral court to
mediate upon the third case or to raise the supplication that the
council was surpassing its extent of power. Be that as it may, the
candidate didn’t bring up any such criticism and despite what might
be expected, continued with a safeguard to the case on merits, from
that point, which was passed. This being the situation, it might be
regarded that the candidate had deferred its privileges under Section
4, to question on the ground that any prerequisite of the mediation
understanding had not been confirmed to.
Case Law :
• BSNL v. Motorola India Pvt. Ltd. (2009)