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When an arbitration agreement does not specify a seat, Section 42 of the Arbitration and Conciliation Act, 1996 ensures that the court where the first valid application is filed acquires exclusive jurisdiction over all subsequent proceedings — but only if that first application was made to a court with proper jurisdiction.
When an arbitration clause does not specify the seat of arbitration, determining the court having exclusive supervisory jurisdiction over the entire arbitral proceedings becomes a critical issue. This question arises most acutely when two or more courts have concurrent jurisdiction under the Arbitration and Conciliation Act, 1996.
When the arbitration agreement does not specify a seat, the Supreme Court and High Courts have consistently held that supervisory jurisdiction is determined in accordance with Sections 16 to 20 of the Code of Civil Procedure, 1908 (CPC). Under Section 20 CPC, the relevant factors are: the place where the defendant resides or carries on business; and the place where the cause of action, wholly or in part, arises.
When two or more courts have concurrent jurisdiction, Section 42 of the Arbitration Act comes into play. Section 42 provides that once an application under the Act has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement. This establishes the principle of “court of first filing”: the first court where an application (under Sections 8, 9, or 11 of the Act) is validly filed becomes the exclusive forum for all subsequent proceedings. All other courts, even if they would otherwise have jurisdiction, are divested of their jurisdiction upon the first filing. In BGS SGS Soma JV v. NHPC, the Supreme Court explained that Section 42 is meant to avoid conflicts in jurisdiction by placing supervisory jurisdiction over all arbitral proceedings in one court exclusively.
Critically, for Section 42 to apply, the court where the first application is filed must itself have proper jurisdiction. The Supreme Court has emphasised that the application must be made to “a Court which has jurisdiction to decide such application.” Filing in a court without jurisdiction does not trigger Section 42, and the exclusive jurisdiction principle does not apply to nullify a later application filed in a court with proper jurisdiction. When the place of arbitration is fixed under Section 20(2) of the Act, that place becomes the jurisdictional seat and courts having jurisdiction over that seat have exclusive authority. This cannot be changed by a new arbitrator holding proceedings at a different location without express mutual consent of the parties.
The legal framework can be summarised as: if a seat is designated in the agreement, only courts of that seat have jurisdiction, rendering concurrent jurisdiction questions largely moot. Where no seat is designated, Section 42 ensures that the court of first valid filing acquires exclusive jurisdiction. For Section 42 to operate, the first application must be filed in a court with actual proper jurisdiction. This framework provides clarity and certainty in determining which court has exclusive supervisory authority over arbitration proceedings.
