Arbitration & Concillation Act 1996
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It has laws related to both domestic, international commercial arbitration & Concillation.
Features
- Arbitration Agreement: Created b/w parties
- Based on UNCITRAL trade laws.
- International and domestic arbitration
- Appointment of Arbitrators by agreement of the parties or through the court.
- Arbitral Procedure: Filing case, submission of evidences, issuance of arbitration awards
- Exhaustive in itself: minimizes role of courts in arbitration.
Terms
| Term | Description |
|---|---|
| Arbitrator | an independent person or body officially appointed to settle a dispute |
| Arbitral Award |
This is a written and signed decision made by an arbitral tribunal after hearing a dispute The award is generally binding and enforceable same as court judgments, but can be challenged under specific circumstances The award must specify the date and place of arbitration |
| Alternate Dispute Resolution(ADR) |
Resolving disputes outside of traditional court proceedings Techniques: Negotiation: Direct communication between parties to reach a mutually agreeable solution Mediation: A neutral third party facilitates communication Conciliation: third party may make suggestions or proposals for settlement. Arbitration: submit their dispute to an arbitrator for a binding decision Various combinations: Fact-finding, early neutral evaluation, and minitrials Advatages Faster, cost-effective, flexible, speed, maintain relationships |
| International Centre for Alternative Dispute Resolution (ICADR) |
Promote ADR methods like mediation and arbitration for resolving disputes both domestically and internationally
Objectives/Scope Promote ADR studies: encouraging academic and professional understanding of ADR Specialized Training Programs: offer training programs for professionals involved in ADR Panels of Neutrals: maintain lists of qualified individuals who can serve as arbitrators, conciliators, and mediators, as well as experts, surveyors, and investigators Collaborating with Other Organizations: works with national and international organizations Is Lok Adalat a effective alternate of ADR Yes, they provide speedy, affordable, emphasis on compromise, binding and enforcable decisions. They reduce burden of courts |
| Litigator(Lawyer) | A litigator is a lawyer who specializes in bringing and defending cases in court |
| Mediator(Communicator) | A person who helps the two sides to talk about and agree on a solution |
| international commercial arbitration | Method of resolving disputes between parties in different countries through a neutral arbitrator, rather than litigator |
| Arbitral tribunal |
A body composed of 1 or more arbitrators, established to resolve disputes between parties through arbitration An arbitral tribunal can be a sole arbitrator or a panel of arbitrators Jurisdiction/Powers of arbitral tribunal (Kompetenz-Kompetenz) Is arbitration aggrement valid? Scope of aggrement Minimal court intervention Whether decision is strictly binding or not |
| Arbitration Proceedings |
Hearings on arbitration
Termination of arbitration proceedings final arbitral award OR By an order of the arbitral tribunal Award is accepted by both parties & not challenged under Section 34 of the Arbitration and Conciliation Act |
History
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Arbitration Act 1937:
Arbitration Act 1940:
Foreign Awards Act 1961
Sections
| section | Description |
|---|---|
| 11 (Appointment of arbitrators) |
Parties can freely choose the arbitrators If no arbitrator is appointed, both parties can appoint their own arbitors. Then these 2 arbitors can appoint their 3rd arbitor. if arbitor is not appointed in 30 days, SC would appoint after that |
| 13,14 Removal of arbitrator from Office |
Arbitrator cannot concilate in case of issues Immpartial Arbitrator Arbitrator withdraw himself from office Loss of Nationality, ill health, accident, retirement Cases 1992. Jiwan Kumar Lohia vs Durgadutt Lohia: For family property dispute both agreed to appoint 3 arbitrators. After 3 years arbitrators withdraw and Justice A.K. Mukherjee appointed as sole arbitrator, then Mukharjee removed and Sen was appointed as arbitrator. Issue was changing so many arbitrators VK construction vs army welfare organisation: VK constructions was doing work for AWHO(Army welfare housing society), bank gurantee was provided by bank of Rajasthan. AWHO was not happy with work and asked bank to cancel the gurantee and bank did. Court gave decision bank cannot cancel the gurantee like this. |
| 29D Fast Track Arbitration |
Streamlined process to resolve disputes in a shorter timeframe, typically within 6 months it's common for international arbitration institutions like the International Chamber of Commerce (ICC) Features Written. Parties submit their arguments and evidence in writing, rather than through oral hearings. 1 arbitrator instead of 3 Strict time limits for the entire arbitration process, including the issuance of the award Reduced fee |
| 33, 34 Remedies available to aggrieved parties against arbitration award |
Application to set aside an arbitral award must be made within 3 months from the date of the award 33: Asking tribunal to rectify the award if it contains errors or ambiguities 34: Asking court to set aside award if certain conditions are not met 48: Challenging enforecement of award, if award is not enforcable Corrections to arbitral award Correcting computational or clerical errors(within 30 days of award) Correcting specific points Asking additional award if certain claims are omitted from the original award |
| 36 Modes of execution of arbitral awards |
Award can be enforced in the same manner as a decree of the court. Procedures are same as court orders eg selling assets, property, and other methods outlined in the Code of Civil Procedure |
| 37 Appeals against specific court orders and arbitral tribunal orders. |
Appeals are allowed against certain court orders and arbitration tribunals |
| 40 Death of a party |
Arbitration agreement is not discharged by the death of a party Legal representatives of the deceased party steps in to enforce the agreement "legal representative" is defined in Section 2(1)(g) of the Act as a person who represents the estate of the deceased |
| 41 Insolvency(Bankrupcy) of 1 party |
Arbitration continues even if one party becomes insolvent. Judicial proceedings can be applied Non-signatories to the contract can be brought into the fold of the arbitration Group of Companies Theory: subsidiaries, parents, promoters, and key individuals can be bought into arbitration proceedings |
| 48 Refusing to recognize and enforce a foreign arbitral award in India |
such as if it violates public policy or was obtained through a fraud |
| 73 Settlement Aggrement |
Formal, legally binding document that records mutually agreed conditions for resolving a dispute Offers clear dispute resolution means Presented by conciliator, parties can sign or reject it Once signed by the parties, the settlement agreement is final and binding |
Arbitration Aggrement
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Written contract where parties agree to resolve disputes through arbitration instead of going to court
Signatures are required by both parties
Aggrement is made considering speed, efficiency, privacy
Alternative Dispute Resolution (ADR) encompasses various methods used to resolve disputes outside of traditional court litigation.
Essentials of Aggrement:
Clear Intention
Signatures (not mandatory)
Written aggrement
Defined Disputes
Enforcable
Minimal court Intervention(if required): Courts can issue interim measures
Arbitrators vs Mediators
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Litigator(मुकदमेबाज़) is costlier and more time consuming wrt Arbitrator or Mediator
| Arbitrators | Mediators | |
|---|---|---|
| Role | Decision Maker, Similar to judge | facilitator of communication and negotiation not decision maker |
| Binding | Yes | No |
| Formal(resembling court proceedings) | Yes | No |
| Costly | less | More |
Cases
| Case | Principle | Description |
|---|---|---|
| 1960 Banarasi Das vs Sugar Cane Commissioner | Signature is not mandatory |
Banarsi das claimed compensation from Sugar cane Commissioner for short supply of sugar cane. Commissioner told that parties should be present before him for decision of dispute Court verdict: Unsigned agreements/blanks does not invalidate the contract |
| 1962, Munshi ram v Banwari lal | Arbitration can be settled by amicable way | Munshi Ram v. Banwari Lal (Deceased) Legal Representatives. SC gave verdict arbitration can be settled by mutual aggrement in amicable way |
| 2006 Abdul karim Wani vs J&K Forest Dept | Arbitral Awards are enforcable |
Plaintiff(Abdul Karim), argued he's sole owner of parcel of land measuring 2 Kanals and 15 marlas located at Gagribal,
since he enjoys uninterupted posession since 1944. Government told land is of Sericulture Department to be transferred to Power Development Department for the installation of power plant Plaintiff's earlier writ petition in Civil Court was dismissed and he did not told the same in this case. HC dismissed the appeal stating its govt land, also imposed fine of Rs. 30000 for suppressing facts. |
UNCITRAL(United Nations Commission on International Trade Law) Model Law
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UNCITRAL is subsidiary body of the U.N. General Assembly established in 1966 to promote international trade.
Non-binding set of rules for arbitration, secure transaction in international trade
Conventions
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Foreign Arbitral Award?
Arbitration Decision/Award issued in 1 country & applied/enforced in another country.
Mostly it arises of international commercial disputes, where parties from different countries agree to resolve conflict via arbitration
Example: Conflict b/w Company in India & Company in US and arbitration to be resolved in Switzerland.
Reciprocity? Country A will only enforce Foreign Arbitral Award of country B, if Country B does same for Country A
| New york Convention (1958) | Geneva Convention (1927) | |
|---|---|---|
| What | Treaty signed in New York on Foreign Arbitral Awards | Same treaty signed in Geneva |
| Exequatur(recognition both in the country of origin and the enforcement jurisdiction) | Both countries are need to | single recognition procedure(ie only in 1 country) |
| Focus | Recognition and Enforcement of Foreign Arbitral Awards | Execution of Foreign Arbitral Awards |
| Reciprocacity | same | Yes needed. But stricter than NY |
| Broader, Simpler, easier to apply | More | Less |
| Finality Requirement | Not required | Award to be final in the country where it was made |
| Current Condition | New York Convention is the dominant framework globally | less use |
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Case
Serajuddin Co. vs Michael Golodetz Co: Both companies has international commercial contract for the sale and purchase of 25,000 tons of manganese ore scheduled in 3 installments
Contract contained an arbitration clause stipulating that disputes would be resolved by arbitration in New York. Serajuddin & Co. filed a suit in India. Calcutta HC told as per clause parties should fight in New york.
Conciliation Proceeding
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Concile means सुलह
A non-binding dispute resolution process where a neutral 3rd party(Conciliator), assists parties in reaching a mutually agreeable settlement
Conciliator can discuss any issues(commercial, contractual, and personal disagreements)
Conciliation proceedings start when 1 party proposes conciliation in writing, and 2nd party accepts this proposal
Appointment of Conciliators
2 or 3 Conciliators: 1 appointed by each party and 3rd as presiding conciliator.
Can take assistance from Indian Dispute Resolution Centre (IDRC) for appointing conciliators
No qualification needed: Conciliator need not to have any qualification but good to have knowledge about the subject matter and have experience in dispute resolution, negotiation, and conflict management.
Role of Concillators
Facilitation, Neutral, Solution proposal, Identify the issue, Confidential, Encouraging voluntary settlement
Concillation Officer
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Powers:
Help communication between parties
Identify key issues
Reach mutually acceptable solutions
Examine witneess under oath
Compell production of documents.
Labour Court, Court of Inquiry
Legal Services Authorities Act, 1987
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Legal aid for the poor:
Free or subsidized legal services provided to individuals who cannot afford to pay for a lawyer
This Act establishes framework for providing Legal aid for poor
How?
Creating the National Legal Services Authority (NALSA) and other legal aid bodies
Entitlement to legal services to Scheduled Castes, Scheduled Tribes, victims of trafficking, women, children, and individuals with disabilities
Sections
| Section | Description |
|---|---|
| 12 Who are entitled |
Scheduled Castes and Scheduled Tribes Victims of trafficking in human beings or beggars Women and children Persons with disabilities victims of mass disasters, ethnic violence, or caste atrocities |
Cases
| Case | Description |
|---|---|
| Hussainara Khatoon vs. State of Bihar |