As a result, the Indian courts may have considered that the transfer was permitted in arbitration proceedings. However, their scope is not clarified and should therefore be included in the Arbitration and Conciliation Act 1996, in order to clarify unresolved issues and to make the transfer a right in the hands of a party with a legitimate right. Such legal recognition will bring security to the country`s arbitration regime and help India in its process to become a hub for international arbitration. When Christian Hausmaninger and I analyzed, more than 25 years ago, the question of surrender and arbitration,2 we found that we could not base our thoughts on much specific literature: while the question of whether an agent was bound by an arbitration agreement between the assignee and the debtor or could avail itself had often appeared in many legal systems as a practical problem, while no concrete and even less complete analysis had been published at the time. Articles and case notes are now legion and several articles and detailed books have been published in many languages that analyze and compare a large number of legal systems.3 It would therefore be unnecessary to add additional analysis to these thorough and largely exhaustive publications, and it would be impossible to summarize all the judicial and arbitration decisions and/or relevant theories in a brief article such as the one I had to produce. I will therefore endeavour to structure my remarks in the form of a dozen preliminary theses in which, and from which I will try to draw some conclusions on how legislators, courts and arbitration tribunals can approach the problem of the law applicable in the future when I am confronted with this. The usual rule is that only parties who have executed an arbitration agreement are required to settle their disputes through arbitration proceedings. Arbitration is a consensual procedure and the arbitration agreement acts to waive the right of a party to appoint the jurisdiction of the courts otherwise competent in favour of arbitration. It should be noted that the Indian courts have held that the assignment of rights is not permissible. However, the assignment is allowed during the arbitration process. This is contradictory because the pending arbitration procedure is considered only a claim. This should be addressed by the courts or by the legislature. Arbitration is a separate contract under the principle of separation provided for by Section 16 (1) (b) of the Arbitration and Conciliation Act 1996.
The assignment of a contract may result from a transfer of rights or the resulting obligations. As a result, the obligations arising from a contract can only be transferred with the agreement of the promised, and this is an innovation that results in the replacement of debts. On the other hand, contractual rights may be transferred, unless a contract is of a personal nature or the rights are not transferred. This view was confirmed in DLF Power Limited v. Mangalore Refinery – Petrochemicals Limited – Ors., 2016 SCC Online Bom 5069. In its judgment, the Bombay High Court found that the compromise clause does not deprive a contractor of the right of surrender if it can be surrendered by other means. The Court found that a clear distinction was made between the assignment of contract rights by a party that fulfilled its obligations under this treaty and the assignment of a debt. The latter is a simple claim that cannot be transferred legally. In this case, it was also established that once the other party accepted the assignment and insisted on respect for the rights, obligations and obligations, the assignee follows in the footsteps of the assignee and is entitled to all rights, obligations and benefits, including the arbitration agreement that is part of this agreement.