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Niddhi Parmar Vinod Kothari Consultants Private Limited
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Law of Arbitration
Copyright
The presentation is a property of Vinod Kothari Consultants Private Limited. No
part of it can be copied, reproduced or distributed in any manner, without
explicit prior permission.
In case of linking, please do give credit and full link.
• Alternative Dispute Resolution is a method for resolving
disputes outside of the official judicial mechanisms
▫ Classified into 4 types
Negotiation
Voluntary – no involvement of 3rd party who facilitates or imposes.
Mediation
Involvement of 3rd party who facilitates the resolution process
▫ Does not impose a resolution on the parties
Collaborative law
Each party has an attorney who facilitates the resolution process within
specifically contracted terms
Arbitration
Involvement of 3rd party who imposes a resolution
Occurs due to arbitration clause. Also known as “Scott Avery Clause”
What is ADR
• Constitution of India
▫ Part IV - Directive principles of state policy (Article 36 – 51)
Promotion of international peace and security
The state shall endeavour to encourage settlement of international disputes by arbitration (Article 51)
▫ Part XI – Relations between the union and the states
Subject-matter of laws made by Parliament and by the Legislatures of States (Article 246)
Power to make laws with respect to any of the matters enumerated in List III (Concurrent List) in the Seventh Schedule
▫ Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration (Para 13).
Indian Scenario
• Black‟s Law Dictionary (4th Edition) defines the term
„arbitration‟
▫ The submission for determination of disputed matter to
private unofficial persons selected in manner provided by
law or agreement.
• Section 2 (1) (a) of the Arbitration and Conciliation Act,
1996 defines the term “arbitration” as follows–
▫ “arbitration” means any arbitration whether or not
administered by permanent arbitral institution;
See next slide
Arbitration: Meaning
• Two modes of arbitration
▫ Institutional arbitration and ad hoc arbitration
• Institutional arbitration
▫ A specialised institution take on the role of administering the
arbitration process
Each institution has its own set of rules and own way to assist in the process
Eg. of some global institutions - London Court of International Arbitration (LCIA),
the International Chamber of Commerce (ICC), Singapore International
Arbitration Centre (SIAC)
Eg. of some Indian institutions – Indian Council of Arbitration (ICA), Indian
Institute of Arbitration & Mediation (IIAM)
• Ad hoc arbitration
▫ Not administered by an institution
Parties shall decide all aspects of arbitration such as number of arbitrators,
manner of their appointment, procedure for conducting the arbitration, etc.
Modes of Arbitration
Modes of Arbitration
Institutional Arbitration
• More expensive
• No need of framing the
process
▫ Institutional arbitrators
have there own rules
• Parties may select the
arbitrator from the list
▫ Based on specialisation
• More flexible when foreign
country is involved
• Remuneration – have their
own scale for determining
Ad hoc Arbitration
• Less expensive
• Parties may control the process
▫ Process for appointment, proceedings – all are decided by the parties
• Delay in process due to disagreement
• Selection of arbitral tribunal
▫ Shall rely on their own views
▫ Difficult in case of international arbitration
• Lack of expertise in drafting the arbitration clause or agreement
• Remuneration – parties need to decide the scale
Why Arbitration?
Arbitration Matters
• Cost of the proceeding
▫ Lower as compared to
courts
• Time efficient
• Power with the parties
▫ Arbitrator is appointed by
the parties
• Specialisation
▫ Since arbitrator is
appointed by the parties,
they may appoint a person
who possess specialised
knowledge in that sector/
area
Court Matters
• Cost of the proceeding
▫ Heavy cost
• Time taking process
• Power with the parties
▫ No power in the hands of
arbitrator except
jurisdiction
• Specialisation
▫ The judge may or may not
posses the required skills.
Rely on expert view
1859
• Act No. VIII dealing with the Code of Civil Procedure; Chapter VI – Reference to Arbitration • Sections 312 – 325 deals with reference to arbitration between the parties to a suit • Sections 326 – 327 deals with arbitration without the intervention of any court • See. http://lawmin.nic.in/legislative/textofcentralacts/1859.pdf.
1872 • The Indian Contract Act, 1872 came into force on April 25, 1872 • Section 28 permitted settlement of dispute by arbitration
1899
• Indian Arbitration Act, 1899 came into force on July 1, 1899 – based on the British Arbitration Act, 1889
• Act 1899 was confined only to Presidency Towns viz. Calcutta, Bombay and Madras.
1908
• The Code of Civil Procedure 1908 was enacted • Provisions relating to the law of arbitration contained in Schedule II which extended to the
other parts of the British India
History of the law of arbitration (1/3)
1937 • The Arbitration (Protocol and Convention) Act 1937 • India was a signatory to the convention on the execution of foreign arbitral award
1940 • In 1925, the Civil Justice Committee recommended various changes in the arbitration law • The Arbitration Act, 1940 was enacted
1961
• India was signatory to the New York Convention 1958. • For implementing the convention the Foreign Awards (Recognition and Enforcement) Act 1961
was enacted • The Arbitration (Protocol and Convention) Act 1937 was repealed
1978
• The Eight Law Commission established in 1977 under the Chairmanship of Justice H. R. Khanna presented 10 reports i.e. from report no. 71 till 80 (between 1978 and 1979)
• The Law Commission of India suggested amendment in the Arbitration Act 1940 in Report No. 76.
History of the law of arbitration (2/3)
1996
• Enactment of the Arbitration and Conciliation Act 1996 • Based on United Nations Commission on International Trade Law (UNCITRAL) – model law
on International Commercial Arbitration
2001
• The 16th Law Commission established in 2000 under the Chairmanship of B. P. Jeevan Reddy presented 11 reports i.e. from report no. 175 till 185 (between 2000 and 2003)
• Report No. 176 recommended the Arbitration and Conciliation (Amendment) Bill, 2002
2014
• The 20th Law Commission established in 2013 under the Chairmanship of D.K. Jain and A. P. Shah presented 19 reports i.e. from report no. 244 till 262 (between 2014 & 2015)
• Report No. 246 recommended amendments to the Arbitration and Conciliation Act, 1996
2015 • Enactment of the Arbitration and Conciliation (Amendment) Act 2015 • Based on the recommendation od the 20th LC
History of the law of arbitration (3/3)
• Conciliation
▫ Conciliator brings the disputants to agreement – negotiated
settlement
▫ Conciliator is appointed only after the dispute has arisen
• Mediation
▫ It is a structured process
▫ Mediator assists the disputants to reach a negotiable
settlement
▫ This process results in signed agreement which defines the
future behaviour of the parties
Some similar terms
Points for discussion
Arbitration Conciliation
Pre-condition The process can start only if there is Arbitration Agreement between the parties to dispute
No such requirement
Appointment Can be even before dispute arises Appointed only after the dispute has arisen
Number can be even/odd
Number of arbitrators need to be odd
Number of conciliator can be even
Decision is known as Arbitral award Settlement
Signed by Arbitral tribunal members Parties concerned
Difference between the 2 terms
Arbitration agreement specifies for even number of arbitrator. Can the said agreement may
be treated as an invalid agreement?
No. In MMTC Ltd. v. Sterlite Industries (India) Ltd. [1996] it was held that the number of
arbitrators is dealt separately in section 10 which is a part of the machinery provision for
the working of the arbitration agreement.
Therefore, the arbitration agreement specifying an even number cannot be the
ground to render the arbitration agreement invalid under the Act
Scheme of the Act • The Act is divided into 4 parts and 3 schedules
Part I – Arbitration (sections 2-43)
• Divided into 10 chapters
• General provisions, Arbitration agreement, Composition of arbitral tribunal, Jurisdiction of arbitral tribunal, Conduct of arbitral proceedings, Making of arbitral award and termination of proceedings, Recourse against arbitral award, Finality and enforcement of arbitral awards, Appeals, Misc.
Part II – Enforcement of certain foreign awards (sections 44-60)
• New York Convention Awards, Geneva Convention Awards
Part III – Conciliation (sections 61-81)
Part IV – Supplementary provisions (sections 82-86)
First Schedule – Convention on the Recognition and Enforcement of Foreign Arbitral Award
Second Schedule – Protocol on Arbitration Clauses
Third Schedule – Execution of Foreign Arbitral Awards
• Arbitrator ▫ A person appointed by the parties to settle a dispute
• Arbitral award ▫ It includes an interim award ▫ Generic points:
Shall be in writing and dated Oral decision is not an award
An arbitral award = decree of the court Such award shall be signed by the members of the arbitral tribunal
Signature of majority of members is sufficient with a suitable reasoning for the omitted signature
Award shall also mention the reason except Where the parties have agreed that no reasons are to be given, or
the award is an arbitral award on agreed terms under section 30 (settlement).
Important terms
• Arbitration Agreement ▫ Section 2 (1) (b) defines the term to mean an agreement referred to in
section 7 Section 7 defines the „arbitration agreement‟ to mean an agreement by
parties to submit the arbitration or certain dispute which has arisen or which may arise between them in respect of defined legal relationship whether contractual or not
May be in the form of an arbitration clause in the contract or in the form of a separate agreement
Shall be in writing
Reference in a contract to a document containing the arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract In Hindustan Petroleum Corporation Ltd. v. M/s Pink City Midway Petroleum [AIR
(2003) SC 2881] – The jurisdiction of civil court is barred after an application under section 8 of the Act is made for arbitration
In Mahesh Kumar v. Rajasthan State Road Corporation [AIR (2006) Raj 56] Raj HC held that mere existence of arbitration clause in agreement does not bar jurisdiction of Civil Court automatically ▫ Objection may be raised not later than submission of its first statement of defence on
the substance of the dispute.
Important terms
• KK Modi Vs KN Modi (1998 AIR SC 1297) ▫ The arbitration agreement must contemplate that the decision of the
tribunal will be binding on the parties to the agreement. ▫ The jurisdiction of the tribunal to decide the rights of the parties must
derive from their consent, or from an order of the Court or from a statute, the terms of which make it clear that the process is to be an arbitration.
▫ The agreement must contemplate that substantive rights of the parties will be determined by the agreed tribunal.
▫ The tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal being fair and equal to both sides.
▫ The agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law.
▫ The agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.
Essential ingredients of an arbitration
agreement
• Section 2 (1) (d) defines „arbitral tribunal‟ to mean a sole arbitrator or a panel of arbitrators
• Number of arbitrators ▫ Parties may determine the number of arbitrators – such number shall not be an
even number
▫ On failure – the arbitral tribunal shall consist of sole arbitrator
• Appointment of arbitrator ▫ Parties may determine the procedure for appointment of arbitrator
In not acted on time– below process shall be followed
▫ On failure – arbitrator shall be appointed by the manner provided u/s. 11 Arbitrator could be of any nationality
Arbitration with 3 arbitrators Each party shall appoint 1 arbitrator and the two shall appoint 3rd arbitrator who shall
be presiding arbitrator
Within 30 days ▫ If the parties fails to appoint their arbitrator
▫ Two appointed arbitrator fails to agree on the 3rd arbitrator
Composition of arbitral tribunal
the arbitrator shall be appointed by the SC or HC or
any person or institution designated by such court
• Appointment of arbitrator
▫ In case of sole arbitrator – if the parties fail to agree on the appointment of a sole arbitrator within 30days
Appointment shall be made by the SC or HC or a person or institution designated by such person
▫ Arbitrator appointed by the SC or HC or a person or institution designated by such person is final
▫ Where the parties belong to different nations – the arbitrator may be of different nation altogether (in case of sole arbitrator or 3rd arbitrator)
▫ An application made to the SC or HC or a person or institution designated by such person shall be disposed within a period of 60 days from the date of service of notice on the other party
▫ Fees and manner of the arbitral tribunal shall be such as specified in the Fourth Schedule.
Composition of arbitral tribunal
• In Atlaz Degi-Tel Pvt Ltd Vs Atlaz Technology Pvt Ltd
[2002(4) RAJ 625 (Bom)]
▫ Arbitration is a remedy for affording reliefs to the party
affected by the breach of agreement
arbitrator cannot conduct a trial of any act which amounts to
an offence, though the same act may be connected with the
discharge of any function under the agreement
▫ Although the transaction is question is a commercial
transaction arising out of an agreement
offence u/s 138 NI Act appears to have been committed in
the course of such transaction and as such the process issued
u/s 138 should not be quashed.
Whether an arbitral tribunal can entertain criminal
complaint?
• Whether an arbitrator may be challenged? ▫ An arbitrator shall disclose in writing the grounds likely to give rise to
justifiable doubts as to his independence or impartiality On the grounds as stated in the Fifth Schedule
Disclosure shall be made in the form specified in Sixth Schedule
From the time of his appointment and throughout the arbitral proceedings
▫ An arbitrator may be challenged if – circumstances exist that give rise to justifiable doubts as to his
independence or impartiality, or
he does not possess the qualifications agreed to by the parties. Challenge procedure under section 13
▫ Arbitrator shall not be eligible to be appointed if the relationship with the parties falls under the categories specified in the Seventh Schedule Subsequent to the dispute have arisen between them – applicability of
sub-section (5) may be waived by an express agreement in writing
Grounds for challenge
• Arbitral Tribunal is not bound by the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872
▫ Parties are free to agree on the procedure to be followed
by the arbitral tribunal in conducting the proceedings
▫ Failing any agreement – arbitral tribunal may conduct the
proceedings in the manner it consider appropriate
• The CPC provides for rules relating to suits, judgement,
decree, interest cost etc.
• The Evidence Act makes the law relating to evidence and
applies to all judicial proceedings in or before the Court
▫ Not to proceedings before arbitral tribunal
Rules of procedures for conducting the proceedings
• Place of arbitration
▫ Parties may decide
▫ In case of failure of any mention in the agreement – place shall be determined by the arbitral tribunal (convenient to the parties)
• Commencement of proceeding
▫ Date on which a request for that dispute to be referred to the arbitration is received by the respondent
• Language
▫ Parties may decide
▫ In case of failure of any mention in the agreement –shall be determined by the arbitral tribunal
Arbitration proceedings
• Section 23 to 27 stipulates the procedure to be followed in arbitration proceedings
▫ Claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought,
▫ the respondent shall state his defence in respect of these particulars
▫ The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.
▫ Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings,
unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.
Arbitration procedure
• Default by the parties – without showing sufficient cause
▫ the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23,
the arbitral tribunal shall terminate the proceedings;
▫ the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23,
the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant.
▫ a party fails to appear at an oral hearing or to produce documentary evidence,
the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it.
Arbitration procedure
• In an arbitration other than an international commercial arbitration
▫ the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;
• In international commercial arbitration
▫ the arbitral tribunal shall decided the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute;
▫ any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules;
▫ failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute.
Substance of dispute
• Can an arbitral tribunal provide an interim measures? ▫ Yes. Section 17 permits an arbitral tribunal to provide an interim
measures of protection as deems fit the preservation, interim custody or sale of any goods which are the
subject-matter of the arbitration agreement; securing the amount in dispute in the arbitration; the detention, preservation or inspection of any property or thing;
interim injunction or the appointment of a receiver; such other interim measure of protection as may appear to the
arbitral tribunal to be just and convenient Arbitral tribunal shall have the same power for making order as vested
with the courts
▫ Arbitral tribunal may require a party to provide appropriate security in connection with the measures ordered
▫ Operative till the dispute is resolved by an award to protect the interest of a party
Measures provided by the arbitral tribunal
• Section 29A (Amendment Act) provides for time limit for arbitration award ▫ Award shall be made within a period of 12 months from the
date the arbitral tribunal enters upon the reference Date on which the arbitrator(s) receive notice in writing of their
appointment Period may be extended by 6 months if the parties consent ▫ If the award is not made within the specified time – the mandate of the
arbitrator(s) shall be terminated unless the court has extended the period ▫ If the Court finds that the proceedings have been delayed by the arbitral
tribunal – then Court may order reduction in fees not exceeding 5% for each month of such delay ▫ Extension may be on an application of any of the parties – such application shall be
disposed within a period of 60 days from the date of service of notice on the opposite party
▫ If the award is made within a period of 6 months Arbitral tribunal shall be entitled to receive such amount of
additional fees to the parties as they may agree
Arbitration Award
• Section 31provides for form and contents of arbitral award ▫ Arbitral award shall be made in writing and shall be signed by
the members of the arbitral tribunal. ▫ Reason upon which the award is based unless
the parties have agreed that no reasons are to be given, or the award is an arbitral award on agreed terms under section 30
(settlement).
▫ Award shall state the date and place of arbitration ▫ Arbitral tribunal shall send the signed copy to each party ▫ Where award is for the payment of money
the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable
Rate of interest @ 2% higher than the current rate of interest prevalent on the date of award from the date of award to the date of payment
Cost of arbitration shall be fixed by the arbitral tribunal
Arbitration Award
• Whether awards made in an international commercial
arbitration shall be considered as foreign awards?
▫ In Bhatia International Vs Bulk Trading S.A. [(2002) AIR SC
1432]
Award made under Part I of the Act – Domestic Awards;
Award made in an arbitration held in a non-convention country
– Domestic Awards;
Award made in an arbitration held in a convention country –
Foreign Awards;
Determining domestic & foreign award
• The party shall make an application for setting aside the arbitral award
• Award may be set aside by the Court only if - ▫ the party making the application furnishes proof that
a party was under some incapacity, or
the arbitration agreement is not valid under the law or
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
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 matter beyond the scope of the submission to arbitration:
the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Past; or
▫ the Court finds that
the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
the arbitral award is in conflict with the public policy of India.
• Such application may not be considered if – ▫ An application for setting aside has been made after 3 months have elapsed from the date on
which the party making that application had received the arbitral award,
▫ if a request had been made under section 33 (correction of award), from the date on which that request had been disposed of by the arbitral tribunal
However, the option to provide sufficient cause is always available
Setting aside arbitral award
• An appeal shall lie from the following orders to the Court authorised by law to hear appeals from original decrees of the Court passing the order ▫ refusing to refer the parties to arbitration under section 8; ▫ granting or refusing to grant any measure under section 9; ▫ setting aside or refusing to set aside an arbitral award under section
34.
• Appeal shall also lie to a court from an order of the arbitral tribunal ▫ accepting the plea referred to in sub-section (2) or sub-section (3) of
section 16; or ▫ granting or refusing to grant an interim measure under section 17.
• No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or taken away any right to appeal to the Supreme Court.
Appealable order
• Section 2 (1) (e) defines the term “court” to mean –
• In the case of an arbitration other than international commercial arbitration ▫ the principal Civil Court of original jurisdiction in a district, and includes the High
Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;
• In the case of international commercial arbitration ▫ the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to
decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court
• Ankati Satyamaiah Vs. Sallangula Lalaiah [(2003)(2) RAJ 433 (AP)] ▫ It was held that the definition of the word 'court' in the expression 'Principal civil court
of original jurisdiction' in Section 2(1) (e) in conjunction with the meaning given in Section 2(4) of CPC and Section 3(17) of the General Clauses Act, indicates that it implies the Court of District Judge i.e. 'Principal civil court of original jurisdiction' in a district. Also, the definition expressly excludes any other civil court of a grade inferior to such courts.
In which court an appeal can be filed?
• The parties at any stage either before or at the time of appointment of the arbitral tribunal agree in writing to have their dispute resolved by fast track procedure (section 29B – Amendment Act) ▫ The arbitral tribunal shall decide the dispute on the basis of written pleadings,
documents and submissions filed by the parties without any oral hearing;
▫ The arbitral tribunal shall have power to call for any further information or clarification from the parties in addition to the pleadings and documents filed by them;
▫ An oral hearing may be held only, if, all the parties make a request or if the arbitral tribunal considers it necessary to have oral hearing for clarifying certain issues;
▫ The arbitral tribunal may dispense with any technical formalities, if an oral hearing is held, and adopt such procedure as deemed appropriate for expeditious disposal of the case.
• Award shall be made within a period of 6 months from the date the arbitral tribunal enters upon the reference ▫ Failure to comply with the specified time lines then provisions of section 29A shall
apply
Fast track procedure
• Arbitration Clause
• Reference to arbitration agreement
• Procedure for appointment of arbitrator
▫ Name of the arbitrator
• Place of arbitration
• Period within which the arbitrator shall make an award
• Arbitration fees to be borne
Points to be considered while drafting an agreement
Scheme of the Act post Amendment Act
• The Act is divided into 4 parts and 7 schedules
Part I – Arbitration (sections 2-43)
Part II – Enforcement of certain foreign awards (sections 44-60)
Part III – Conciliation (sections 61-81)
Part IV – Supplementary provisions (sections 82-86)
First Schedule – Convention on the Recognition and Enforcement of Foreign Arbitral Award
Second Schedule – Protocol on Arbitration Clauses
Third Schedule – Execution of Foreign Arbitral Awards
Fourth Schedule – Determination of the fees of the arbitral tribunal and the manner of its payment
Fifth Schedule – Parameters determining whether circumstances exists which give rise to justifiable doubts
Sixth Schedule – Disclosure shall be made by an arbitrator
Seventh Schedule – Eligibility to be appointed as an arbitrator
• Previous services for one of the parties or other involvement in the case ▫ arbitrator has within the past 3 years served as counsel for one of the parties
or an affiliate of one of the parties or has previously advised or been consulted by the party or an affiliate of the party making the appointment in an unrelated matter but the arbitrator and the party or the affiliate of the party have no ongoing
relationship
▫ arbitrator has within the past 3 years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter
▫ arbitrator has within the past 3 years been appointed as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties.
▫ arbitrator‟s law firm has within the past 3 years acted for one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator.
▫ arbitrator currently serves, or has served within the past 3 years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties
Circumstances under Schedule V but not covered under
schedule VII
• Relationship between an arbitrator and another arbitrator or counsel
▫ arbitrator and another arbitrator are lawyers in the same law firm.
▫ arbitrator was within the past three years a partner of, or otherwise affiliated with, another arbitrator or any
of the counsel in the same arbitration.
▫ A lawyer in the arbitrator‟s law firm is an arbitrator in another dispute involving the same party or parties or
an affiliate of one of the parties.
▫ A close family member of the arbitrator is a partner or employee of the law firm representing one of the
parties, but is not assisting with the dispute.
▫ arbitrator has within the past three years received more than three appointments by the same counsel or the
same law firm.
• Relationship between arbitrator and party and others involved in the arbitration
▫ arbitrator‟s law firm is currently acting adverse to one of the parties or an affiliate of one of the parties.
▫ arbitrator had been associated within the past three years with a party or an affiliate of one of the parties in
a professional capacity, such as a former employee or partner.
• Other circumstances
▫ arbitrator holds shares, either directly or indirectly, which by reason of number or denomination constitute a
material holding in one of the parties or an affiliate of one of the parties that is publicly listed.
▫ arbitrator holds a position in an arbitration institution with appointing authority over the dispute.
▫ arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an
affiliate of one of the parties, where the affiliate is not directly involved in the matters in dispute in the
arbitration.
Circumstances under Schedule V but not covered under schedule VII
Cont…
• In order to recover the dues from the borrower following
alternatives are available –
▫ First
Blank cheques collected/ cheques bounce – issue notice under
section 138 of the Negotiable Instrument Act
▫ Second
Where loan agreement does not contain „arbitration clause‟ -
file civil suit for the outstanding amount
▫ Third
Where the loan agreement contains „arbitration clause‟ –
commence arbitration proceeding
Recovery measures available with NBFCs
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