Arbitration and ConciliationArbitration and Conciliation

Module VIModule VI

Law of ArbitrationLaw of Arbitration

• An ADR technique

• Contained in Arbitration Act, 1940

• The Arbitration (Protocol and Convention) Act, 1937 and;

• The Foreign Awards (Recognition and Enforcement) Act, 1961.

• An ADR technique

• Contained in Arbitration Act, 1940

• The Arbitration (Protocol and Convention) Act, 1937 and;

• The Foreign Awards (Recognition and Enforcement) Act, 1961.

Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996

• Repealed previous enactments;

• Conciliation proceedings have been given legal recognition for the first time.

• Based on UNCITRAL model law

• Repealed previous enactments;

• Conciliation proceedings have been given legal recognition for the first time.

• Based on UNCITRAL model law

Objectives of A & C ActObjectives of A & C Act

• consolidate and amend the law relating to domestic arbitration;

• international commercial arbitration and ;

• enforcement of foreign arbitral awards ;

• Adoption of UNCITRAL Model law for uniform ADR system ;

• consolidate and amend the law relating to domestic arbitration;

• international commercial arbitration and ;

• enforcement of foreign arbitral awards ;

• Adoption of UNCITRAL Model law for uniform ADR system ;

Features of A & C ActFeatures of A & C Act

• Autonomy of parties in conducting the arbitral proceedings;

• Supervisory role of courts minimized;

• Arbitrators can be appointed by Chief Justices;

• Arbitral Award must contain reasons;

• Autonomy of parties in conducting the arbitral proceedings;

• Supervisory role of courts minimized;

• Arbitrators can be appointed by Chief Justices;

• Arbitral Award must contain reasons;

What is Arbitration?What is Arbitration?• A alternative dispute resolution method ; • an independent, neutral third person

("arbitrator") is appointed to hear and consider the merits of the dispute and renders a final and binding decision called an award.

• The process is similar to the litigation process as it involves adjudication,;

• The parties choose their arbitrator and the manner in which the arbitration will proceed.

• The decision of the arbitrator is known as an "award."

• A alternative dispute resolution method ; • an independent, neutral third person

("arbitrator") is appointed to hear and consider the merits of the dispute and renders a final and binding decision called an award.

• The process is similar to the litigation process as it involves adjudication,;

• The parties choose their arbitrator and the manner in which the arbitration will proceed.

• The decision of the arbitrator is known as an "award."

Matters that cannot be referred to ArbitrationMatters that cannot be referred to Arbitration Matrimonial matters, like divorce or restitution of conjugal

rights;

matters relating to guardianship of a minor or other person under disability;

testamentary matters, for example, questions about the validity of a will;

insolvency matters, such as adjudication of a person as an insolvent;

criminal proceedings;

questions relating to charities or charitable trusts;

dissolution or winding up of a company.

Matrimonial matters, like divorce or restitution of conjugal rights;

matters relating to guardianship of a minor or other person under disability;

testamentary matters, for example, questions about the validity of a will;

insolvency matters, such as adjudication of a person as an insolvent;

criminal proceedings;

questions relating to charities or charitable trusts;

dissolution or winding up of a company.

Arbitration AgreementArbitration Agreement

• Must be in writing;• Form is not specified;• Can be a clause in ‘contract agreement’• it can be gathered from several

documents or from correspondence consisting of a number of letters, fax messages, telegrams or telex messages.

• Must be in writing;• Form is not specified;• Can be a clause in ‘contract agreement’• it can be gathered from several

documents or from correspondence consisting of a number of letters, fax messages, telegrams or telex messages.

Domestic ArbitrationDomestic Arbitration

• arbitration which takes place in India, when the subject matter of the contract, the merits of the dispute and the procedure for arbitration are all governed by Indian law or

• when the cause of action for the dispute has arisen wholly in India or where the parties are otherwise subject to Indian jurisdiction.

• arbitration which takes place in India, when the subject matter of the contract, the merits of the dispute and the procedure for arbitration are all governed by Indian law or

• when the cause of action for the dispute has arisen wholly in India or where the parties are otherwise subject to Indian jurisdiction.

International ArbitrationInternational Arbitration

• Arbitration becomes “International” when at least one of the parties involved is resident or domiciled, outside India or the subject matter of the dispute is abroad.

• The law applicable to an arbitration proceedings may be the Indian law or a foreign law, depending on the terms of the contract in this regard and the rules of conflict of laws.

• Arbitration becomes “International” when at least one of the parties involved is resident or domiciled, outside India or the subject matter of the dispute is abroad.

• The law applicable to an arbitration proceedings may be the Indian law or a foreign law, depending on the terms of the contract in this regard and the rules of conflict of laws.

Foreign ArbitrationForeign Arbitration

• an arbitration conducted in a place outside India, where the resulting award is sought to be enforced as a "foreign award".

• an arbitration conducted in a place outside India, where the resulting award is sought to be enforced as a "foreign award".

Ad Hoc ArbitrationAd Hoc Arbitration

• arbitration agreed to and arranged by the parties themselves without recourse to an Institution.

• The proceedings are conducted by the arbitrator (s) as per the agreement between the 'parties' or with concurrence of the parties.

• It can be domestic, international or foreign arbitration.

• arbitration agreed to and arranged by the parties themselves without recourse to an Institution.

• The proceedings are conducted by the arbitrator (s) as per the agreement between the 'parties' or with concurrence of the parties.

• It can be domestic, international or foreign arbitration.

Making of Arbitral AwardMaking of Arbitral Award

• Notice

• Statements of both the parties must be considered;

• Expert assistance may be obtained;

• Arbitral Tribunal has certain powers of civil court;

• Arbiter has to make the ‘AWARD’ after complying with PNJ.

• Notice

• Statements of both the parties must be considered;

• Expert assistance may be obtained;

• Arbitral Tribunal has certain powers of civil court;

• Arbiter has to make the ‘AWARD’ after complying with PNJ.

Recourse against Arbitral Award

Recourse against Arbitral Award

• a party was under some incapacity, • the arbitration agreement is not valid

under the law to which the parties have subjected it, or failing any indication thereon, under the law for the time being in force;

• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;

• a party was under some incapacity, • the arbitration agreement is not valid

under the law to which the parties have subjected it, or failing any indication thereon, under the law for the time being in force;

• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;

Recourse against Arbitral Award

Recourse against Arbitral Award

• the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration

• the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force;

• the arbitral award is in conflict with the public policy of India

• the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration

• the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force;

• the arbitral award is in conflict with the public policy of India

ConciliationConciliation

• A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party, who helps lower tensions, improve communications, and explore possible solutions. Conciliation is similar to mediation, but may be less formal.

• Decision is known as “Settlement Agreement”

• A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party, who helps lower tensions, improve communications, and explore possible solutions. Conciliation is similar to mediation, but may be less formal.

• Decision is known as “Settlement Agreement”

End of Module VIEnd of Module VI