23412786 Arbitration and Conciliation

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THE ARBITRATION ANDCONCILIATION ACT, 1996


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Why ADRs

Resolutions of disputes through judicial

process is very time consuming and costly

in terms of time, money and energy.Litigations really weakens both the parties

and hence is not a business-based solution.

And so we need Alternate Dispute

Resolution


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Methods of ADR

Negotiation

Mediation Conciliation

Arbitration


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Arbitration Defined :

Halsburys LawAn Arbitration is the reference of

a dispute between not less than

two parties, for determination,after hearing both sides in a

judicial manner, by a person or

persons other than a court of

competent jurisdiction.


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Different parts of the Act

Part I Domestic arbitration

Part II Enforcement of foreign awards.

Part III Conciliation procedures.

Part IV Supplementary provisions

First Schedule Convention on recognition and enforcement of

foreign arbitral award as New York conventionSecond Schedule Protocol on Arbitration clauses.

Third Schedule - Convention on The execution of foreign arbitral award asGeneva convention


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Amendment of the law

U. N. commission on international

trade law.(UNCITRAL) --1985 ---the

uniformity in the law of Arb proceduresand the specific needs of the

International Commercial Arb.

Practice.Rules for Conciliation added.


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Advantages of Arbitration

Arbitration affords the partiesa choice of the law & a choice

of the judges that they dowant & more important toreject the law which and to

reject the particular judgewhom they do not want.Binding dispute settlement

mechanism


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Objectives of Amendment

Minimise the supervisory role of the Courts

Arbitral Tribunal to give reasons for Award

Permit Arb. Tribunal to use

Mediation,Conciliation, other procedures Arbitral Award enforced as if it were a decree

of the court

Conciliation proceedings --same status and

effect as an Arbitral Award Foreign Awards



Expectations from Arbitration

An impartial, and expert, tribunal or arbitratorwill decide the case.

The parties can select arbitrators with expertise

in the issues and professionals who can beexpected to reach reasonable decisions foundedupon a mixture of law and industry custom.

Privacy and confidentiality in contrast tolitigation in public forums.



Benefits for the Parties

1.Choose the arbitrator(s); 2. Choose the issues to be arbitrated;

3. Choose the place of arbitration;

4. Choose the substantive law that will control the

merits of the dispute; 5. Choose the procedural rules;

6. Choose the schedule;

7. Choose exhibits, witnesses and other evidence to beadduced

including arranging for tests and site visits;

8. Choose the form of relief to be awarded;

9. Choose the form of the award; and

10. Agree to facilitate enforcement of the award.



In a country signatory to the New York

Convention on the Recognition andEnforcement of Foreign Arbitral Awards

(the New York Convention) the Award

may be enforced relatively ( more than120 signatory countries)

No such all-encompassing ConventionorTreaty or legal regime applies to

judgments rendered in national courts.



ADVANTAGES OF

ARBITRATIONTechnical matter : appropriate special

qualifications of the Arbitrator.

Speedier than a court case

saving in the costsunwanted publicity can be avoided

Convenience of the parties as to time and

placeArb. Can view subject at any reasonable

time


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TERMS OF AN ARBITRATION

AGREEMENT

Insert lawful terms as parties wish

terms must be stated with certainty

powers of Arbitrator to be clearly stated questions to be determined by Arb .

Any matters for exclusion of reference

Any technical or legal bar to the partiesshould be inserted

Composition of Arbitral Tribunal


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Disputes inappropriate for resolution by

arbitration

French law: bankruptcy matters are inarbitrable. India:

Matrimonial matters, like divorce or restitution of conjugal rights;

matters relating to guardianship of a minor or other person underdisability;

testamentary matters, for example, questions about the validity ofa will;

insolvency matters, such as adjudication of a person as aninsolvent;

criminal proceedings;

questions relating to charities or charitable trusts;

matters falling within the purview of the Monopolies and RestrictiveTrade Practices Act; dissolution or winding up of a company.

matters involving morality, status and public policy cannot bereferred to arbitration.


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THE ARBITRATION AND CONCILIATION

(AMENDMENT) BILL, 2003

to enable the judicial authority to decide jurisdictionalissues,

to empower the Courts to make reference toarbitration in case all the parties to a legal proceeding

enter into an arbitration agreement to resolve theirdisputes during the pendency of such proceedingbefore it;

to provide for the appointment of arbitrators by the

Chief Justice of the Supreme Court or the High Courtto prevent writ petitions being filed on the basis that itis an administrative order of the Chief Justice.


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(AMENDMENT) BILL, 2003-2

where the place of arbitration under Part I of is inIndia, between Indian parties or an internationalarbitration Indian law will apply.

completion of arbitrations within one year; at theend of one year the Court will fix up a timeschedule for completion of the proceedings untilthe award is passed.

empower the arbitral tribunal to pass peremptoryorders for implementation of interlocutory ordersand in case they are not implemented, to enablethe Court to order costs or pass other orders indefault.


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(AMENDMENT) BILL, 2003-3

provide for the Arbitration Division in the High

Courts, for the speedy enforcement of awards

provide provisions for speeding up andcompleting all arbitrations

to introduce a new Chapter XI relating to single

member fast track arbitral tribunal and award

will have to be pronounced within six monthsand to specify procedure therefore in a new

Schedule.


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Appointment of an Arbitrator

Section -11:

(1) person of any nationality

(2) parties to agree on a procedure for appointmentof Arb.

Failing agreement as in above -- the two Arbshall appoint a third Arb who shall act as thepresiding Arb---Umpire.

30 days

failing which CJ or any person or institutiondesignated by him

Sec. 16--may rule on its own jurisdiction


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Procedure by Arbitrator

Delivery of points of claim and

defence--similar to pleadings

particulars of claim and counterclaim

discovery and inspection of documents

inspection of property and things by (1)

arbitrator (2) parties fixing the time and place of hearing


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Procedure

Claimant (or advocate) opens his case---also defence to counterclaim

Claimant calls and examines his witness--

who may be cross -examined by therespondent

Claimant may re-examine him

Respondent opens his case

Respondent calls and examines his witness-may be cross examined by the claimant


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If witness is cross examined the Respondent mayre-examine him

Respondent addresses the Arbitrator

The claimant replies

Sec.19 ---not bound by CPC.1908 or the IEA

1872---Freedom to agree on the procedure to befollowed

Sec.20 ----place of arb

Evidence--Oral , Documentary, Heresay,Primary

Evidence, Secondary Evidence


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Sec. 34--court can set aside Arb. Award

1. Incapacity of the parties.

2. Not valid under law.

3. No proper notice.4. Beyond the scope of the matter

decided to be referred to Arb.

5. Composition of the Arb. Tribunaldefective.


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No second appeal will lie from an order passsed in

an appeal:: right to appeal to the S.C. is notaffected Sec.--37

Mandatory for judicial authority to refer to Arb.Sec.---45

Limitation act 1963 shall apply to proceedings inArb. Sec.---43

Time commenced --on the date on which therequest for the dispute to be referred to arb isreceived by the respondent Sec ---21


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Content of Arb. Award

Sec. 31---

(1) shall be made in writing& signed by the Arb.

Tribunal

(3) shall state the reasons , unless

(a) parties have agreed no reasons be given(b)

award under agreed terms under Sec. 30

(4) state date and place

(5) signed copy delivered to each party

(6) interim award


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(7)(a) payment of money: include in the sum

for which award is made ---interest to paidfrom date on which cause of action arose

& the date on which award is made

(b) provision of 18% interest from the date of

award to the date of payment------unlessthe award otherwise directs.

Award does not transfer a property : parties

are directed to execute conveyance or other

wise make a transfer of the property in dispute

Documents

23412786 Arbitration and Conciliation