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DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY LUCKNOW. Project on Silent feature of arbitration and conciliation


Project on

Silent feature of arbitration and conciliation act 1996


Alternate Dispute Resolution

SUBMITTED TO Dr. Gulab Rai (Proctor) Faculty of Law DSMNRU, Lucknow


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In India, ADR methods have a very ancient legacy India. civilization expressly encouraged the settlement of differences by Tribunals chosen by the parties themselves. An equivalent of it in the old Indian system is the „Peoples Court‟ known as the „Panchayat‟. The position outside India was akin in the sense; submission of disputes to the decision of private persons was recognised under the Roman law known by the name of Compromise (compromise), arbitration was a mode of settling controversies much favoured in the civil law of the continent. The Greeks attached particular importance to arbitration. The attitude of English law towards arbitration has been fluctuating from stiff opposition to moderate welcome. The Common Law Courts looked jealously at agreements to submit disputes to extra-judicial determination. The word “Arbiter” was originally used as a non-technical designation of a person to whom controversy was referred for decision irrespective of any law. Subsequently the word “Arbiter” has been attached to a technical name of a person selected with reference to an established system for friendly determination of controversies, which though not a judicial process is yet to be regulated by law by implication.

Arbitration is a term derived from the nomenclature of Roman law. It is applied to an arrangement for taking, and abiding by judgment of a Russell on Arbitration selected person in some disputed matter instead of carrying it to the established Courts of justice.

Before the enactment of Arbitration and Conciliation Act,1996 the statutory provisions on arbitration in India were contained in three different enactments, namely, The Arbitration Act, 1940, The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration Act, 1940 laid down the framework within which domestic arbitration was concluded in India, while the other two Acts dealt with foreign awards. The Arbitration and Conciliation Act, 1996 has repealed The Arbitration Act, 1940, The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961.

The history of the and Conciliation Act, 1996 has been discussed in the previous chapters of this study. The Arbitration and Conciliation Act, 1996 also defines the law relating to conciliation providing for matters connected therewith and incidental thereto on the basis of Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985. This modern law seeks to provide for an effective mode of settlement of disputes between the parties, both for domestic and for international commercial arbitration. Thus, an elaborate codified recognition to the concept of arbitration and conciliation is given in India by the enactment of The Arbitration and Conciliation Act, 1996. Its emergence is one of the most significant movements, both in terms of judicial reforms as well as conflict management. The alternative dispute redressal methods like arbitration, conciliation, mediation, and their hybrids have become a global necessity and the study on its utility is undeniable.

Arbitration‟ is a private process, as the initiation of arbitration is under an agreement. It may be less adversarial, less formal, and flexible with the adoption of simpler procedures. Arbitration does not follow any formal rules of evidence. The findings are limited to some

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documents, with no interrogatories or depositions. Generally, the disputed parties select the Adjudicators. Adjudicators are selected based on their qualification and expertise. Their decisions do not formally set precedents to any other arbitration. Vacation of award is generally limited to arbitrator's misconduct and bias. Arbitrators normally are empowered to grant compensatory damages including provisional relief. All these factors usually reduced costs and makes way for delivery of quick justice1. The process of „Conciliation‟ and „Mediation‟ is distinguishable from Arbitration as the disputed party‟s willingness to submit to mediation or conciliation does not bind them to accept the recommendation of the conciliation or mediator but an arbitrator‟s award, by contrast, is binding on the parties. 1


With a view to give effect the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign awards and to define the law relating to conciliation, the Arbitration and Conciliation Bill 1995was introduced in the Rajya Sabha on 16th May 1995.

The Arbitration and Conciliation Act, 1996 Section149 received the Presidential assent and was brought into force from 16 August 1996,the Act being a continuation of the Ordinance is deemed to have been effective from 25 January 1996 when the first Ordinance came into force. The long title of this Act replicates that, the object of the Act is to consolidate and amend 2 the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto.


The Arbitration and Conciliation Act, 1996 lays considerable stress on the party autonomy. The party to the dispute can decide the number of arbitrators, the rules of procedure, and the rules governing the substance of the dispute, the place of arbitration and the language of the arbitrators.

The major advantage of the new law is that, it facilitates quick resolution of the commercial disputes and speeds up arbitration procedure by minimizing intervention by the Court. Under the new law, a Court may provide certain interim measures of protection at a party‟s request and may offer assistance in taking evidence or recovering documents at the request of the arbitral tribunal or a party to the reference. The award of an arbitrator is itself enforceable as a decree of Court and is not required to be made a “Rule of Court”. The arbitrator has to give

1 https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1307&context=fac_works

2 https://www.iilsindia.com/blogs/2015/05/16/salient-features-of-arbitration-and-conciliation-act-1996/

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reasons for his award. However, no reasons need to be given if the disputant parties agree before hand to such a thing 3

In Babar Ali Vs Union of India 4 case it was held by Supreme Court that , The Arbitration and Conciliation Act,1996 is neither unconstitutional nor in any way offends the basic structure of the Constitution of India, as Judicial review is available for challenging the award in accordance with the procedure laid down therein. The time and manner of the judicial scrutiny can be legitimately laid down by the Act passed by the parliament.


The Arbitration and Conciliation Act, 1996 improves upon the previous laws regarding arbitration in India namely the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961 Further, the new statute also covers conciliation which had not been provided for earlier. The Act also derives authority from the UNCITRAL Model law on International Commercial Arbitration and the UNCITRAL rules on conciliation. The Model law on International Commercial Arbitration was framed after taking into consideration provisions regarding arbitration under various legal systems. Thus, it is possible to incorporate the model law into the legal system of practically every nation. The Act of 1996 aims at consolidating the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and rules regarding conciliation. 5

The act specially defines the term international commercial arbitration to mean an arbitration real ted to dispute arising out of legal relationship whether contractual or not considered under the commercial as the law enforce in India and where at least one of the parties whether an individual body corporate are a company is having business or residing abroad and in case of government . the government of a foreign country.


One of the feature of the arbitration act is regarding Qualification of Arbitration no. qualification or appointment where prescribe in earlier Arbitration Act. It has been realise that Quite a large number of dispute arising between the parties are of typical nature whether related to science , technology, mining industry or other special field of knowledge therefore

3 http://www.indiacode.nic.in/acts-in-pdf/2016/201603.pdf

4 Babar Ali vs Union Of India (Uoi) And Ors. on 5 November,1999

5 https://en.wikipedia.org/wiki/Arbitration_and_Conciliation_Act_1996

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the revival contention can be appreciated decided by the arbitration law who are competent and well worse in such matter. 6

Appointment Of Arbitrator - The parties can agree on a procedure for appointing the arbitrator or arbitrators. If they are unable to agree, each party will appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator who will act as a presiding arbitrator. [section 11(3)]. If one of the party does not appoint an arbitrator within 30 days, or if two appointed arbitrators do not appoint third arbitrator within 30 days, the party can request Chief Justice to appoint an arbitrator. [section 11(4)]. The Chief Justice can authorize any person or institution to appoint an arbitrator. [Some High Courts have authorized District Judge to appoint an arbitrator]. 7

Challenge to Appointment Of Arbitrator - An arbitrator is expected to be independent and impartial. If there are some circumstances due to which his independence or impartiality can be challenged, he must disclose the circumstances before his appointment. [section 12(1)]. Appointment of Arbitrator can be challenged only if (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality (b) He does not possess the

qualifications agreed to by the parties. [section 12(3)]. Appointment of arbitrator cannot be

challenged on any other ground

arbitrator himself. If he does not accept the challenge, the proceedings can continue and the arbitrator can make the arbitral award. However, in such case, application for setting aside arbitral award can be made to Court. If the court agrees to the challenge, the arbitral award can be set aside. [section 13(6)]. Thus, even if the arbitrator does not accept the challenge to his appointment, the other party cannot stall further arbitration proceedings by rushing to court. The arbitration can continue and challenge can be made in Court only after arbitral award is made.

The challenge to appointment has to be decided by the

Conduct of Arbitral Proceedings - The Arbitral Tribunal should treat the parties equally and each party should be given full opportunity to present his case. [section 18]. The Arbitral Tribunal is not bound by Code of Civil Procedure, 1908 or Indian Evidence Act, 1872. [section 19(1)]. The parties to arbitration are free to agree on the procedure to be followed by the Arbitral Tribunal. If the parties do not agree to the procedure, the procedure will be as determined by the arbitral tribunal Law.


As per the Amendment Act, the Courts will now have to refer the parties to arbitration, provided there exists a valid arbitration agreement.

6 http://www.icaindia.co.in/icanet/rules/commercialarbitration/arbitration&conciliation/chapter1a.htm

7 ://www.advocatekhoj.com/library/bareacts/arbitrationandconciliation/index.php?Title=Arbitration%20and%20


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The sub-section(1) has been amended envisaging that notwithstanding any judgment, decree or order of the Supreme Court or any court, the judicial authority shall refer the parties to the arbitration unless it finds that prima facie no valid arbitration agreement exists.

Prior to the amendment:

Section 8 (1) mandated any judicial authority to refer the parties to arbitration in respect of an action brought before it, which is the subject of an arbitration agreement.

The 1996 Act only provided for reference of disputes to arbitration by the parties to the arbitration agreement and no relief was available to the person claiming through or under them.

Further, the parties could seek arbitration only if they were in possession of the original arbitration agreement or a certified copy thereof.

Sub-section (1) had been substituted, whereby the power of the judicial authority is limited to inquiring the existences of a prima facie arbitration agreement.

A provision had been added to Subsection (2)

A party applying for reference of matter to arbitration can make application to the Court for a direction of production of the original or certified copy of the arbitration agreement, in case the parties applying for reference of the disputes to arbitration is not in the possession of the arbitration agreement and the opposite party has the same. 8

After the 2015 Amendment, any judicial authority will have to direct the parties to arbitration if a valid arbitration agreement exists.

A decision of the Supreme Court or a higher judicial authority will not have any effect on the power of the Court to refer the matter to arbitration.


The decision of the Arbitral Tribunal is termed as 'Arbitral Award'. Arbitrator can decide the dispute ex aequo et bono (in justice and in good faith) if both the parties expressly authorize him to do so. Section 28 of the Arbitration and Conciliation Act,1996 grants autonomy to the parties to choose the substantive law to be applied to „Arbitration other than an commercial arbitration‟ as well as to an „international commercial arbitration‟, where the place of is in India. The Supreme Court of India in Sumitomo Heavy Industries Vs Oil and Natural Gas







8 https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/94563/110997/F-1874446647/UGA94563.pdf

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9 Co Ltd held that, where the parties had made an choice of Indian law as proper law of the contract, then it would follow that the proper law of the arbitration agreement is also Indian Law. It was held as the arbitration agreement is part of the substance of the contract and terms of arbitration clause are held to be clear in that respect. The provisions has a vital improvement in making international commercial arbitration considerably more user-friendly and flexible In the arbitral proceedings with more than one arbitrator, the decision of Arbitral Tribunal will be by majority. In the Shin-Etsu Chemical Co Ltd.Vs .Aksh Optifibre 10 Ltd and Case it was held that, in an application for reference rejected on the ground of invalidity of under Section 45 of the Act, the judicial authority is required to pass reasoned order after hearing parties. Impugned order is liable to appeal under Section 50(1) (a) of the Act 11


Earlier arbitration law was that the party could access Court almost at every stage of arbitration - right from appointment of arbitrator to implementation of final award. Thus, the defending party could approach Court at various stages and stall the proceedings. Now, approach to Court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral award is made. Appeal to Court is now only on restricted grounds. Of course, Tribunal cannot be given unlimited and uncontrolled powers and supervision of Courts cannot be totally eliminated. An application to challenge the award will not be maintainable if the party proposing to challenge it has accepted and acted upon it. The Supreme Court in Pooran Chand Nangia Vs National fertilisers 12 Ltd, held that the appellant had received the money, which was due to him under the award accepting it unequivocally and without any reserve and so the challenge was not maintainable that it did not lie in his mouth to challenge the award.

In Union of India Vs Popular Constructions Co the Supreme Court held that by virtue of Sec34 (1) , recourse to the Court against an arbitral award cannot be made beyond the prescribed period. The time limit prescribed under Sec 34 to challenge an award is absolute and un-extendable by Court under Section 5 of Limitation Act.

In the Venture Global Engineering Vs. Satyam Computer Services Ltd. and Another it was held that, in case of international commercial arbitrations held out of India provisions of Part- I would apply unless the parties by agreement express or implied, exclude all or any of "

9 M/S Sumitomo Heavy Industries Ltd vs Oil & Natural Gas Company on 28 July, 2010

10 Shin-Etsu Chemical Co. Ltd vs M/S. Aksh Optifibre Ltd. & Anr on 12 August, 2005

11 ://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/International_Commercial_Arbitration. pdf

12 National Fertilizers vs Puran Chand Nangia on 17 October, 2000

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Notwithstanding anything in any other being for the time enforce being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part." The Supreme Court of India in the case of P. Anand Gajapathi Raju Vs P.V.G Raju 13 held that, section 5 brings out clearly the object of the 1996 Act, namely, that ofen resolution of dispute expeditiously and less expensively and when there is an arbitration agreement, the Court‟s intervention should be minimal. Finality of Arbitral Award under Section 35 is subject to the part according to which an arbitral award shall be final and on the parties and persons claiming under them respectively. Thus, Section 36 of the 1996 Act provided finality of arbitral awards and its enforcement, without intervention of the Court. The Arbitral Tribunals are empowered to settle any objections rose in respect of jurisdiction or scope of authority of the arbitrators. 14


Supreme Court’s View on Arbitrator’s Power to Enforce its Orders

The Supreme Court of India, in MD, Army Welfare Housing Organisation v, Sumangal Services (P) Ltd 15 while looking into the sections of the old Arbitration Act, 1940, made some remarks (which could only possibly serve as obiter dicta), vis-à-vis the power of an arbitrator to implement its orders under Section 17 of the Arbitration and Conciliation Act, which gives authority to the arbitral tribunal to grant interim relief to the parties during the pendency of the arbitration proceedings. The Court remarked that even under Section 17, no authority is conferred upon the arbitral tribunal to implement its order nor does it arrange for any judicial implementation.

Section 27 (5) of the Arbitration and Conciliation Act, 1996

Somehow, these decisions of the Apex Court fail to take notice of Section 27 (5) of the Arbitration and Conciliation Act, 1996 which expressly confers the power on the arbitral tribunal to punish for its contempt.

Section 27 (5) stipulates that “Persons failing to attend in accordance with such process, or making any other fault, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like

13 . Anand Gajapathi Raju & Ors vs P.V.G. Raju (Died ) & Ors on 28 March, 2000

14 ://www.manupatrafast.in/NewsletterArchives/listing/ILU%20RSP/2015/Dec/Highlights%20of%20Amendmen



15 Army Welfare Housing Organisation v, Sumangal Services (P) (1991)2 scc479

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disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences is suits tried before the Court”.[3]

High Court of Delhi on Section 27 (5) of Arbitration and Conciliation Act

In the case of Sri Krishan v. Anand [4] 16 , the Delhi High Court was apprehended of the issue whether a petition under Section 9 of the Arbitration and Conciliation Act, 1996 would stand for an identical interim measure which has already been passed by the arbitral tribunal under Section 17 earlier. The petitioner had tried to validate the petition under Section 9 of the Act on the stand that orders passed by an arbitral tribunal are powerless and not enforceable.

Justice Endlaw of the High court of Delhi while rejecting the argument of the petitioner said that the legislative intent of passing Section 17 of the and Conciliation Act is to make the arbitral tribunal a platform not only for between parties but to also order interim measures. The Court additionally held that absolutely no purpose would be aided in coming to the arbitral tribunal under Section 17, if for implementing orders under Section 17 a distinct petition under Section 9 has to be filed consequently. 17

The Court said that under Section 27 (5) of the Arbitration and Conciliation Act, 1996 any individual failing to conform to the order of the arbitral tribunal would be considered to be “making any other default” or “guilty of any to the arbitral tribunal during the conduct of the proceedings”. The Delhi High Court also elucidated that Section 27(5) was not observed in Sundaram Finance Ltd. or in Sumangal Services Pvt 18 . Ltd. probably, since it was dodged in the heading/title of Section 27. Nonetheless, as the said heading/title cannot confine or contract the otherwise extensive ambit of Sub-section (5) of 27. The default, contempt specified within that cannot be narrowed to that only in appearance of witnesses in front of the arbitral tribunal. Doing so, would be to reduce the words “any other default” and “guilty of any contempt” therein futile.

Therefore, the option before the aggrieved party in a case of non-compliance of the order of the arbitrator is to apply to the tribunal for putting across a representation to the Court to give out such a punishment to the disobedient party, as would have been necessary in a case of contempt of Court. The arbitral tribunal should create such a representation to the Court only if it is pleased that the defaulter is in default or in contempt. When such a representation by the arbitral tribunal is before the Court, the Court is at the discretion to deal with such disobedient party as if in contempt of order of the Court. This may well be either under the sections of the Contempt of Courts Act or under the sections of Order 39 Rule 2A of the

16 Sri Krishan v. Anand 2009 3Arblr 447 delhi



18 Sundaram Finance Ltd. or in Sumangal Services Pvt MANU/DE/1829/2009

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Code of Civil Procedure, which arranges for penalties of disobedience or breach of injunction.


In Bhatia International v Bulk Trading 19 , it was held that Part I of Arbitration and Conciliation Act, 1996 would equally apply to International Commercial Arbitrations having seat outside India, unless any or all the provisions have been expressly excluded. In Bharat Aluminium v Kaiser Aluminium 20 , the Court decided that a constitutional bench of the Court would reconsider the Court's own ruling in Bhatia International case. The Supreme Court gave following ruling in the above mentioned case:

“Part I not applicable to International Commercial Arbitrations having seat outside India:

Section 2(2) makes a declaration that:

Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. We are of the considered opinion that Part I of the Arbitration Act, 1996 would have no application to International Commercial Arbitration held outside India. 2. No Interim Injunction: No suit for interim injunction simplicitor would be maintainable in India, on the basis of an international commercial arbitration with a seat outside India. 3. Section 9 i.e. Interim Relief cannot be granted if seat is outside India: In our opinion, the provision contained in Section 2(2) of the Arbitration Act, 1996 is not in conflict with any of the

provisions either in Part I or in Part II of the Arbitration Act1996. In a foreign seated commercial arbitration, no application for interim relief would be maintainable under Section 9 or any other provision, as applicability of Part I of the Arbitration Act, 1996 is limited to all arbitrations which take place in India. 4. Law to be applied prospectively: In order to do complete justice, we hereby order, that the law now declared by this Court shall apply.


Conciliation is a method for prevention and settlement of Industrial disputes through third party intervention. Conciliation reconcile the views of disputants to bring them to an agreement. Under the conciliation method services of a neutral third party are used in a dispute as a means of helping the disputing parties to reduce the extent of their differences and to arrive at an amicable settlement or agreed solution. Conciliation is rational and orderly process of discussion of differences between the parties to a dispute under the guidance of a conciliator. In the process of conciliation, representatives of workers and the employers are brought together before a third person or a group of persons to persuade them to arrive at an agreement by mutual discussion. It is a peace-making process in Industrial relations. It is a

19 Bhatia International v Bulk Trading (2002) 4 SCC105

20 Bharat Aluminium v Kaiser Aluminium (2012)9SCC552

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speedy settlement of disputes without resort to strikes or lock-outs. Because, conciliation assists the parties towards a mutually acceptable compromise or solution by virtue of his reasoning and persuasion. The conciliation process is characterised by its flexibility, informality and simplicity. So, sometimes conciliation is an art, the conciliator is a solitary artist recongnising at most a few guiding stars and depending mainly on his personal power of divination.

There are mainly two kinds of conciliation. Such as:

I. Voluntary Conciliation.

II. Compulsory Conciliation.

Voluntary Conciliation:

Under voluntary conciliation, the disputes are referred to the conciliation officer or the Board of conviliation by both parties under their own free will who agree to have their disputes settled by an outsider, but they may or may not accept the decision. The ILO (International Labour Organisation) Recommendation No. 92 concerning voluntary conciliation (and Arbitration) 1951 as follows.

1. Voluntary conciliation machinery appropriate to national conditions should be made to assist in the

prevention and settlement of Industrial disputes between employers and workers.

2. Where voluntary conciliation machinery is constituted on a joint basis it should include equal






3. The procedure should be free of charge and expeditions, such time limits for the proceedings as

may be prescribed by national laws or regulations should be fixed in advance and kept to the minimum. Provision should be made to enable the procedure to be set in million either on the initiative of any of the parties to the dispute or ex-officio by the voluntary conciliation authority.

4. If the dispute has been submitted to conciliation procedure with the consent of all the parties

concerned, the latter should be encouraged to abstain from stick and lock outs while conciliation is in


5. All agreements which the parties may reach during conciliation procedure or as a result thereof

should be drawn up in writing regarded as equivalent to agreement concluded in the usual manner.

Compulsory Conciliation:

In case of compulsory conciliation, the disputes are referred to the Board of conciliation. In case of compulsory conciliation, the procedure is made compulsory by provisions requiring the parties' attendance at conciliation proceedings or empowering the conciliation authority to compel their

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attendance at such proceeding as well as by the prohibition of strikes and lock-outs without prior resort to conciliation. The compulsory conciliation conserve a useful purpose even if the parties attitude make the possibility of a voluntary settlement very unlikely, especially in deselopint countries where management and trade unions may as yet have relatively little experience of collective labour relations. There is a less chance that the parties would agree even to meet each other for direct negotiation. Moreover, the management may refuse to recognise and have any dealings with the trade union. In this situation, the compulsory attendance of the parties at a conciliation meeting will help them make each other's acquaintance and to become used to joint discussions. Compulsory conciliation also serves a means of educating, raining and guiding the parties with regard to the nature and conduct of bilateral negotiations. 21


Under section 13 of the Arbitration Act 1940, following power are entrusted to the Arbitrator.

To administer oath to the parties and witness appearing.

To state a special cases for the opinion of the court on any question of law involved or state the award.

Wholly or in part in the form if a special case of such question for the opinion.

To make the award conditional or in the alternative.

To correct an award any clerical mistake or user arising from any accidental slip or omission.

To administer any party to the arbitration such interrogatories as may in the opinion of the arbitrators or impose be necessary.

To award interest upto the date of award.

To determine by and to whom the costs of reference and the award shall be paid.

When an award of money is given the arbitrator can fix the instalment thereof and their amount and time.

To make interim award to be followed by a final award.

To order for the specific performance of the contract.

21 http://www.kkhsou.in/main/EVidya2/management/arbitration.html

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