BY S.S. NAGANAND B.COM, LL.B, A.C.A SENIOR ADVOCATE

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1 BY S.S. NAGANAND B.COM, LL.B, A.C.A SENIOR ADVOCATE

2 Arbitration means any arbitration whether or not administered by permanent arbitral institution; Arbitration Agreement means an agreement referred to in section 7 of the Act; Arbitral award includes an interim award; Arbitral Tribunal means sole arbitrator or a panel or arbitrators. 2

3 Section 5: Limited Intervention by Court. Section 8: Court must refer parties to arbitration where there is an arbitration agreement. 3

4 Arbitration agreement means an agreement by parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship; Arbitration agreement may in form of clause in a contract or separate agreement; Arbitration agreement shall be in writing; Document signed by parties, an exchange of letter, telex, telegrams or other means of telecommunication which provide a record of agreement ; an exchange of statement of claim and defense; Reference in a contract to a document containing an arbitration clause constitutes an Arbitration agreement. 4

5 A party may, before or after arbitral proceedings or at any time making award but before it is enforced in accordance with section 36, apply to a court for Appointment of a guardian for a minor or a person of unsound mind for the proceedings Judicial Intervention Preservation, Custody and Sale of Goods Securing Amount in Dispute Interim Injunctions, Appointment of Receiver Pre Award Attachment 5

6 Parties are free to determine the number of arbitrators, provided the number shall not be an even number. If the parties fail to determine the number of arbitrators, the Tribunal shall consist of a sole arbitrator. 6

7 Parties are free to agree on a procedure for appointing the Arbitrator/s Subject to procedure agreed upon by the parties. Arbitration with Three Arbitrators: each party shall appoint one arbitrator and two appointed arbitrators shall appoint the third arbitrator. If a party fails to appoint an arbitrator or two appointed arbitrators fail to appoint third arbitrator, Chief Justice or may other person or institution designed by him shall appoint the arbitrators. (Contd ) 7

8 Arbitration with Sole Arbitrator : If the parties fail to agree on the arbitrator within 30 days from the receipt of request by one party from the other party to so agree the appointment shall be made by Chief Justice or may other person or institution designed by him shall appoint the arbitrators. Arbitration with procedure agreed by the parties: If a party fails to act as required under that procedure; parties or two appointed arbitrators fail to reach an agreement expected of them under that procedure; a person including an institution fails to perform any function entrusted to him or it under that procedure A party may request Chief Justice or may other person or institution designed by him to take necessary measure. 8

9 Arbitrator shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. An Arbitrator may be challenged only if Circumstances exist that give rise to justifiable doubts as to his independence or impartiality; He does not posses the qualifications agreed to by the parties. 9

10 To rule on its own jurisdiction, including ruling on any objections, with respect to existence or validity of arbitration agreement. Plea that Arbitral Tribunal does not have jurisdiction shall be raised not later than submission of the statement of defence. Plea that Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority. Tribunal shall decide on plea taken and it holds that it has jurisdiction, the arbitral proceedings can continue and the aggrieved party may make an application for setting aside such arbitral award u/s 34 of the Act. 10

11 Arbitral Tribunal may order a party to take any interim measure of protection as Arbitral Tribunal may consider necessary in respect of the subject matter of the dispute. 11

12 Equal treatment of parties Determination of rules of procedure Place of Arbitration Commencement of Arbitral proceedings Language Statement of Claims and defence Hearings and written proceedings Default of a party Expert appointment by arbitral tribunal Court assistance in taking evidence 12

13 Courts not to act as an appellate authority. Award can be set aside only on limited grounds mentioned under Section 34(2)(a)&(b). The arbitrator is the sole judge of the quality as well as the quantity of evidence. ONGC v. Saw Pipes Ltd., AIR 2003 SC

14 Finality of Arbitral awards Subject to this part an arbitral award shall be final and binding and persons claiming under them respectively. Enforcement The award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court. 14

15 Order granting or refusing to grant any measure under Section 9 Setting aside or refusing to set aside an Arbitral Award under Section 34 Arbitral Tribunal holding that it does not have jurisdiction to entertain the claim Granting or refusing to grant any interim measure under Section

16 The Court which is approached first alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement. Jindal Vijayanagar Steel (JSW Steel Ltd.) v. Jindal Praxair Oxygen Company Ltd. [2006(8)SCALE 668] 16

17 Section 45: New York Convention Awards Section 54: Geneva Convention Award Court must refer parties to arbitration if the parties have made an agreement referred to in Section 44 unless the said agreement is null and void, inoperative or incapable of being performed. 17

18 Conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto. Unless agreed by the parties, there shall be only one conciliator. The Parties may agree for appointment of two or three conciliators and the conciliators shall act jointly 18

19 Section 89 of Code of Civil Procedure, 1908 Settlement of disputes outside the court. (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for (a) Arbitration; (b) Conciliation; (c) Judicial settlement including settlement through Lok Adalat; or (d) Mediation. 19

CHAPTER 4 THE ARBITRATION AND CONCILIATION ACT. Arrangement of Sections.

CHAPTER 4 THE ARBITRATION AND CONCILIATION ACT. Arrangement of Sections. Section 1. Application. 2. Interpretation. PART I PRELIMINARY. PART II ARBITRATION. 3. Form of arbitration agreement. 4. Waiver