Section 8 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 8 deals with a common situation: one side files a court case on a matter that is covered by an arbitration agreement. The other side can apply, in time, to have the parties sent to arbitration. The court must then refer them, unless it finds that prima facie no valid arbitration agreement exists.
A judicial authority before which an action is brought on a matter that is the subject of an arbitration agreement shall refer the parties to arbitration if a party, or a person claiming through or under that party, applies not later than the date of submitting his first statement on the substance of the dispute, unless it finds that prima facie no valid arbitration agreement exists. The application must be accompanied by the original arbitration agreement or a duly certified copy. Arbitration may start or continue while the application is pending. This is as per the India Code consolidated text consulted.
Where this section sits
Section 8 is one of the few places where Part I gives a court a task. Section 5 limits court intervention to what Part I provides, and section 8 is one such provision; see sections 5 and 6. What counts as an arbitration agreement is in section 7; see our post on section 7.
In the India Code consolidated text, section 8 stands in Chapter II of Part I, headed "Arbitration agreement", next to sections 7 and 9. An order refusing to refer the parties under section 8 is among the orders listed in section 37; see our article on section 37 and appealable orders. If you are facing a court case despite an arbitration clause, an arbitration support review of your agreement and the plaint is the first step.
Sub-section (1): the duty to refer
The footnote shows sub-section (1) as substituted by Act 3 of 2016, s. 4, with effect from 23-10-2015. The sub-section has these parts:
| Element | What the text says |
|---|---|
| Who decides | A "judicial authority", not only a "Court" as defined in section 2(1)(e) |
| Trigger | An action is brought in a matter which is the subject of an arbitration agreement |
| Who applies | A party to the arbitration agreement, or any person claiming through or under him |
| Deadline | Not later than the date of submitting his first statement on the substance of the dispute |
| Effect | "Notwithstanding any judgment, decree or order of the Supreme Court or any Court", the authority shall refer the parties to arbitration |
| Exception | Unless it finds that prima facie no valid arbitration agreement exists |
On the history, the footnote says only that the sub-section was substituted "for sub-section (1)"; it does not reproduce the earlier wording, so no comparison with the older text is made here. Three features of the present wording deserve attention: the applicant may be a person claiming through or under a party, the duty to refer applies "notwithstanding any judgment, decree or order of the Supreme Court or any Court", and the only exception named is a finding that prima facie no valid arbitration agreement exists.
The deadline matters
The application must come no later than the date of submitting the first statement on the substance of the dispute. In practice, a defendant who files a written statement defending the claim on merits without first applying under section 8 risks losing the right to insist on a reference under this section. The text does not define "first statement on the substance of the dispute", so the safe course is to file the section 8 application before, or together with, any pleading on merits. Section 4, on waiver, is a separate rule about objections to non-compliance; see sections 3 and 4.
The "prima facie" exception
The authority refers the parties unless it finds that "prima facie no valid arbitration agreement exists". The word "prima facie" signals a first-look test and the text gives no further procedure. Whether an agreement is valid and in writing is governed by section 7, which we do not re-explain here. Section 16 separately gives the tribunal power to rule on its own jurisdiction; see section 16.
Sub-section (2): the original agreement or a certified copy
The application "shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof."
A proviso, shown by its footnote as inserted by s. 4 of Act 3 of 2016 with effect from 23-10-2015, deals with the case where the applicant does not have the original or a certified copy and the other party holds it. The applicant must then file the application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original or its duly certified copy before that Court.
Practical consequence: keep the signed original or a certified copy safely. If your counterparty holds the only signed copy, you do not abandon the application; you use the proviso route.
Sub-section (3): arbitration can go on
"Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." So the pendency of the application does not stop the arbitration. See section 21 for when proceedings commence.
A worked example
Bhatia Packaging supplies cartons to Iyer Retail under a contract with an arbitration clause. Iyer files a civil suit for refund. Bhatia is served and, before filing any written statement, applies under section 8 with the original contract. If the court finds no prima facie case that the agreement is invalid, it refers the parties to arbitration. Had Bhatia filed a full written statement first, it would risk the point that the application came too late. If Bhatia had only an unsigned copy and Iyer held the signed original, Bhatia would file the application with a copy and a petition under the proviso to sub-section (2).
State amendment: Jammu and Kashmir and Ladakh
After section 8 the text prints one "STATE AMENDMENT" entry headed "Jammu and Kashmir and Ladakh (UTs)", which inserts "section 8A and section 8B". It cites the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020 (notification No. S.O. 1123(E), dated 18-3-2020) and the Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020 (notification No. S.O. 3774(E), dated 23-10-2020). These are not sections of the central Act and apply only in those territories. In short, they let a court dealing with petitions under sections 9 or 11 (section 8A), or a petition under section 34 or an appeal under section 37 (section 8B), refer the parties, with their consent, to mediation or conciliation where elements of a settlement appear. Under section 8A a mediated settlement has "the same status and effect as an arbitral award"; under section 8B it has "the status of a modified arbitral award"; in both it may be enforced in the manner specified under section 36.
Two points in this entry read oddly in the official text itself, and we quote them as printed without resolving them. First, clause (g) of sub-section (2) in both sections speaks of orders "in accordance with clauses (iii), (iv) and (v)", although the clauses of that sub-section are lettered (a) to (h). Second, for conciliation, section 8A(3) applies "the provisions of Part II of this Act" while section 8B(3) applies "the provisions of Part III of the Act". Conciliation is the subject of Part III; see our article on sections 61 and 62.
The Mediation Act, 2023 and section 8
The Mediation Act, 2023 touches the neighbourhood of section 8 in two ways. Its Third Schedule adds "or mediation" to the two Exceptions to section 28 of the Indian Contract Act, 1872 that save arbitration agreements; see our post on section 28 of the Indian Contract Act, 1872 (a Contract Act post, not section 28 of this Act). Its Fourth Schedule substitutes section 89 of the Code of Civil Procedure, 1908, under which a court may refer a dispute to arbitration "and thereafter, the provisions of the Arbitration and Conciliation Act, 1996 shall apply". The Mediation Act comes into force by notification, and the date is not in the sources consulted, so we do not say whether these changes are in force. For the mediation side, see the Mediation Act cluster article on court-referred mediation.
Need help with a section 8 application?
Timing and documents decide whether a section 8 application succeeds. Our arbitration support team can review the clause, the plaint and your intended first pleading so that the application is ready before the deadline.
Key takeaways
- The application must be made no later than the date of submitting the first statement on the substance of the dispute.
- It must be accompanied by the original arbitration agreement or a duly certified copy; the proviso covers the case where the other party holds it.
- The authority refers the parties unless it finds that prima facie no valid arbitration agreement exists.
- Arbitration may begin or continue while the application is pending.
- Sections 8A and 8B are one combined Jammu and Kashmir and Ladakh entry, not central sections.
- Mediation Act provisions that touch this area commence by notification, date not in the sources consulted.
Read next
- Section 9: interim measures by court
- Section 16: competence of the tribunal to rule on its jurisdiction
- Arbitration agreement: section 7
- Arbitration vs litigation vs mediation
Disclaimer: Based on the India Code consolidated text of the Arbitration and Conciliation Act, 1996, whose footnotes show amendments up to Act 3 of 2021 and a latest date of 12 October 2023, as consulted on 2 October 2026. Rules, regulations and notifications under the Act, later amendments and the commencement of the Mediation Act, 2023 should be checked. This article is general information, not legal advice; check the official text before acting.