1 Features of Arbitration and Conciliation Act, 1996 Client/Matter: -None- 2
Total Page：16
File Type：pdf, Size：1020Kb
Date and Time: 19 May 2020 17:16:00 IST Job Number: 117166948 Documents (16) 1. 1 Features of Arbitration and Conciliation Act, 1996 Client/Matter: -None- 2. 2 Arbitration Agreement Client/Matter: -None- 3. 3 Notice Invoking Arbitration Clause Client/Matter: -None- 4. 4 Appointment of Arbitrator Client/Matter: -None- 5. 5 Conducting and Controlling Arbitration Proceedings Client/Matter: -None- 6. 6 Challenge to Jurisdiction of Arbitrator Client/Matter: -None- 7. 7 Challenge to Qualifications and Impartiality of Arbitrator Client/Matter: -None- 8. 8 Rights and Duties of Arbitral Tribunal Client/Matter: -None- 9. 9 Form, Contents and Finality of Arbitral Awards Client/Matter: -None- 10. 10 Termination of Mandate of Arbitral Tribunal Client/Matter: -None- 11. 11 Recourse Against Arbitral Award Client/Matter: -None- 12. 12 Jurisdiction of Court in Arbitration Matters Client/Matter: -None- 13. 13 Claims in Arbitration Matters Client/Matter: -None- 14. 14 Pitfalls in Smooth Conduct of Arbitral Proceedings Client/Matter: -None- 15. 15 Interpretation of Engineering Clauses Client/Matter: -None- 16. APPENDIX 1 Client/Matter: -None- | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis 1 Features of Arbitration and Conciliation Act, 1996 PC Markanda: Arbitration Step by Step P C Markanda PC Markanda: Arbitration Step by Step > PC Markanda: Arbitration Step by Step 1. Features of Arbitration and Conciliation Act, 1996 1. ‘ARBITRATION’ – MEANING OF Section 2(1)(a) of the Arbitration and Conciliation Act, 1996 defines ‘arbitration’ to mean ‘any arbitration whether or not administered by permanent arbitral institution’. Arbitration is a reference to the decision of one or more persons, either with or without an umpire, of some matter or matters in difference between the parties. 1 In Halsbury's Laws of England 2, the term ‘arbitration’ has been defined as : The term ‘arbitration’ is used in several senses. It may refer either to a judicial process or to a non-judicial process. A judicial process is concerned with the ascertainment, declaration and enforcement of rights and liabilities as they exist, in accordance with some recognised system of law. An industrial arbitration may well have for its function to ascertain and declare, but not to enforce, what in the arbitrator's opinion ought to be the respective rights and liabilities of the parties, and such a function is non- judicial. Conciliation is a process of persuading parties to reach agreement, and is plainly not arbitration; nor is the chairman of a conciliation board an arbitrator. In English law, arbitration is a mechanism for the resolution of disputes which takes place, usually in private, pursuant to an agreement between two or more parties, under which the parties agree to be bound by the decision to be given by the arbitrator according to law or, if so agreed, other considerations, after a fair hearing, such decision being enforceable at law. Sometimes the submission instead of being voluntary is imposed by statute. In this work, such arbitrations will be referred to as ‘statutory arbitrations’. 3 With the ever widening expansion of international trade and commerce, complex questions on private international law, effect of local laws on contract between parties belonging to different nations are certain to crop up. Arbitration has been considered to be a civilised way of resolving disputes avoiding court proceedings. This approach manifests faith of the parties in the capacity of the tribunal of their choice to decide even a pure question of law. 4 An ‘international commercial arbitration’ means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is (i) an individual who is a national of, or habitually resident in, any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country. 5 The definition of the term ‘international commercial arbitration’ makes no distinction between an international commercial arbitrations which takes place in India and an internal commercial arbitration which take place outside India. 6 The term ‘commercial’ occurring in the phrase ‘international commercial arbitration’ in the Act is given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, any trade transactions for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; consultancy; carriage of goods or passengers by air, sea, rail or road. 7 Any service or activity which in the modern complexities of business would be considered to be a lubricant for the wheels of commerce is ‘commercial’. 8 Page 2 of 10 1 Features of Arbitration and Conciliation Act, 1996 2. FEATURES OF ARBITRATION AND CONCILIATION ACT, 1996 The 1996 Act, strictly speaking, has three distinct features, which are as follows: (1) Party autonomy is paramount. Court's intervention has been expressly excluded except when it is so specifically stated; (2) An arbitral tribunal is required to be fair, independent and impartial and is required to conduct arbitrations according to the principles of natural justice unfettered by procedural laws; and (3) In addition to provisions contained in sections 1 to 43, dealing with domestic arbitrations, Conciliation has been given recognition. A study of sections 2 of the 43 of the Arbitration and Conciliation Act, 1996, which fall under Part I, reveals that the principles contained in the said provisions are aimed to achieve the following results: (a) Quickness in achieving resolution of disputes by a domestic tribunal without any unnecessary and wasteful expenditure; (b) The parties have been given a choice in accordance with which they wish the arbitral tribunal to proceed with the adjudication of the controversy between the parties subject only to certain restrictions concerning public interest; (c) The will of the parties shall prevail without intervention of the courts except as provided under sections 8 and 9; (d) The parties shall be treated equally and procedural laws will have no applicability before the arbitral tribunal; (e) If the challenge to the jurisdiction of the arbitral tribunal does not succeed, the arbitral proceedings shall continue till an arbitral award is made; (f) If the parties cannot agree to choose a venue, the arbitral tribunal shall determine the venue having regard to the circumstances of the case; (g) Review of an award by the arbitral tribunal within the time stated in the Act rather than remittance of the award to the arbitral tribunal by the court for reconsideration; and (h) The award itself is a decree unless set aside by the courts on limited grounds available under section 34. The Act was enacted to consolidate and to amend the law relating to 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. 9 The Act being both an amending and consolidating Act is intended to be a selfcontained Code and, therefore, exhaustive on the law of the subject or on some particular point. A corollary will follow that it declares the whole of law upon the particular subject or point and will carry with it a negative import that it shall not be permissible to do what is not mentioned in it and further that what is permissible thereunder will be done only in the manner indicated and no other. 10 The Act was drafted taking the UNCITRAL Model Law on International Commercial Arbitration as adopted by UN Commission on International Trade Law, 1985 as its basis. 11 It is an integrated version of the 1940 Act which governed the domestic arbitrations, the Arbitration (Protocol and Convention) Act, 1937, and the Foreign Award (Recognition and Enforcement) Act, 1961, which governed interventional arbitral awards. Chapters I to VIII of the Act are taken from Chapters I to VIII of the UNCITRAL Model Law. 12 For interpretation of the Arbitration and Conciliation Act, 1996, the Model Law and judgments thereon are not a guide since the Act and the Model Law are not identically worded. 13If, however, there be a lacunae in the provisions of the Act on any point then the relevant provisions of the Model Laws and Rules can be read to interpret the provision because while enacting the Indian Act, the Model Laws and Rules were taken into account. 14 The notable features of the Act are that it minimises judicial intervention and reduces the grounds of challenge to the award. The object of the Act is to ensure speedy decision of the disputes between the parties. 15 It is intended to ensure fair and efficient and speedy trial giving finality to the decision. It is also intended to minimise the supervisory role of the courts and enhance the assistance. In other words, the main object is to drastically curtail supervisory role of the courts, demolish Page 3 of 10 1 Features of Arbitration and Conciliation Act, 1996 various stages and proceedings through which an award was required to pass through in the mechanism of old enactments so that the object of speedy resolution of dispute is achieved. 16 The 1996 Act contains a coherent and model framework. It envisages only one award under one set of rules. It does not contemplate multi-layer awards governed by different sets of rules.