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ARBITRATION AND CONCILIATION ACT 1996

Dr.C.L.Bansal

BASIC FEATURES


Composite piece of legislation covering


   

Domestic arbitration International commercial arbitration Enforcement of foreign awards Conciliation

Based on UNCITRAL Mode Law on Arbitration

Object is to provide inexpensive, expeditious and binding redressal through privately appointed intermediary

Act is in two parts




Part I covers domestic and international commercial arbitration Part II relates to enforcement of foreign awards

No judicial interference in arbitration except in two cases:




Interim measures of protection or injunction, or Appointment of arbitration on parties failure to appoint arbitrator

ARBITRATION DEFINED
Reference of civil dispute relating to money matters such as money, property, breach of contract, business transaction to a mutually agreeable intermediary called arbitrator

ARBITRATION AGREEMENT (Sec 7)

Agreement between parties to submit their present or future dispute to arbitration

Form of Arbitration could be as follows:


  

Arbitration clause in a contract Separate arbitration agreement Exchange of statements of claim and defence alleging existence of agreement

Essentials of Arbitration Agreement




Must be in writing such as letters, telegrams or signed document or formally executed document Must relate to a present dispute

(Mere refusal to pay is not a dispute INDER SINGH REKHI V. DDA AIR 1988 SC 10) NOTE: INVALIDITY OF A CONTRACT WILL NOT AFFECT VALIDITY OF ARBITRATION CLAUSE


Agreement need not contain the name of arbitrator whose name may be determined subsequently

Effect of Arbitration Agreement


 

No suit can be filed in a court If a party to arbitration agreement approaches a court, it shall pass an injunction order on application of other party Arbitration continues notwithstanding reference to court

Reference by Whom?
1.

2.
    

Parties competent to contract can make reference. Minor, lunatic, insolvent can t make a reference Following can refer dispute to arbitration
Joint Stock Co. subject to Articles Karta of HUF Official Receiver with permission of court Trustee Partner on behalf of firm if so authorized under partnership deed

SUBJECT MATTER OF REFERNCE


I.

REFERABLE MATTERS


Civil Matters: disputes about property, money, damages, breach, legal questions Personal Matters- disputes about marriage, Mattersmaintenance, terms of separation Time barred claims

II.

NONNON-REFERABLE MATTERS
    

Divorce, restitution of conjugal rights Testamentary (will) matters Insolvency matters Guardianship Criminal matters

4-ARBITRATION TYPES
1.

2.


Foreign Arbitration- outside India by foreign Arbitrationarbitrator under foreign laws is called foreign award . Arbitration in India: India:
Domestic Arbitration between domestic parties or companies incorporated in India irrespective of locus of control International Commercial Arbitration: where one of the parties is either foreign, national/nonnational/nonresident/foreign incorporated entity/foreign government

3.

4.

Adhoc Arbitration: broad arbitration Arbitration: under A&C Act 1996 but for procedural matters reference made to court Institutional Arbitration- reference by a ArbitrationChamber of Commerce or other institution under its own rules

ARBITRAL TRIBUNAL


May consist of:


 

Sole Arbitrator, or Panel of Arbitrators

No qualification prescribed but acquisition of interest or concealed interest in subject matter shall be a disqualification

APPOINTMENT OF ARBITRATOR


Appointment by mutual consent or even named by a third part designated in the agreement Number of arbitrator fixed by parties provided it is not even On parties failure to determine number, there shall be sole arbitrator

If each party appoints an arbitrator each, the arbitrators shall appoint, a presiding arbitrator On a party s or nominated arbitrator s failure to nominate within 30 days, appointment shall be made as follows:


By Chief Justice of High Court in case of domestic arbitration By Chief Justice of India in case of international commercial arbitration

TWO GROUNDS FOR CHALLENGING VALIDITY OF APPOINTMENT OF ARBITRATOR


i. ii.

Doubt about independence/impartiality Not possessing qualifications agreed to by parties

Procedure of challenge: challenge:




Within 15 days of becoming aware of constitution of tribunal or absence of independence, give statement of reasons for challenge Tribunal to decide about challenge unless arbitrator resigns or is withdrawn by appointer

REMOVAL OF ARBITRATOR
  

Unable to perform duties Failure to act without undue delay Termination by parties

DUTIES OF ARBITRATORS
      

To enter reference with reasonable dispatch To give award in prescribed time To act impartially To act according to principles of natural justice Not to misconduct himself To disclose interest Not to delegate authority

RULES OF ARBITRATION PROCEEDINGS


 

 

Equal Treatment of parties Not bound by rules of procedure in CPC 1908, Evidence Act 1872 Domestic arbitration as per substantive law of India In International commercial arbitration, parties can designate the law Court s assistance in taking evidence (Sec 27) Dispute be determined by majority and so should the questions of procedure (sec 29)

ARBITRAL AWARD
  

 

No prescribed form of award Award on stamp paper of prescribed value Award be registered under Transfer of Property Act if it relates to immovable property No time limit for giving award Award be reasoned and signed by all members of tribunal Award is final and binding on all the parties

SETTING ASIDE OF AWARD GROUNDS


  

  

Incapacity of party Invalidity of arbitration agreement No notice of appointment of arbitrator/arbitration proceedings to a party Defective composition of the tribunal Subject matter not arbitrable Award conflicts with public policy

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