Arbitration, Group - 7

7/31/2019 Arbitration, Group - 7

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ARBITRATION

By group-7:

Kalika Dhamani

Madhvi Sharma

Sapan Vardhani

Ranu Shrimali

Monica Mistry

Jimmy Chabbra


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ARBITRATION

[Sec.2(1)(a)]

Arbitration is one of the method of civildisputes between two or more persons by

reference of the disputes to an independentand impartial third person, calledArbitrator, instead of litigating the matter

in the usual way through the Courts.

It saves time and expense.

It also avoids unnecessary technicalitiesand at the same time ensures substantial

justice within limits of law.


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ARBITRATION IS A DOMESTICFORUM

.It is a forum other than a Court of lawfor determination of disputes and

differences, after hearing both the sides

,in a judicial manner.


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OBJECTIVES OF THE ACT

The main objectives of the Act are as under:

1) To comprehensively cover international commercial arbitrationand conciliation as also domestic arbitration and conciliation.

2) To make provision for an arbitral procedure which is fair,efficientand capable of meeting the needs of the specific arbitration.

3) To provide that the arbitral tribunal gives reason for its arbitralaward.

4) To ensure that the arbitral tribunal remains within the limits ofjurisdiction.

5) To minimise the supervisory role of courts in the arbitral process.

6) To permit an arbitral tribunal to use mediation, conciliation or

other procedure during the arbitral proceeding to encouragesettlement of disputes.


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7) To provide that every final arbitral award is enforced inthe same manner as if it were a decree of court.

8) To provide that a settlement agreement reached by theparties as a result of conciliation proceeding will havethe same statue and effect as an arbitral award on

agreed terms on the substance of the dispute renderedby an arbitral tribunal.

9) To provide that, for purposes of enforcement of foreignawards, every arbitral award made in a country to

which one of the two international conventions relatingto foreign arbitral award to which India is a party

applies, will be treated as a foreign award.


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ARBITRATION AGREEMENT

Arbitration agreement (sec.7

Arbitration agreementmeans an agreement

by the parties to submit to arbitration all orcertain disputes which have arisen or which

may arise between them in respect of a

defined legal relationship whether contractual

or not [sec.7(1)].A non-contractual legal

relationship, for example, may arise from a

tort.


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Essentials of arbitration agreement

It must be in writing[sec.7(3)]

It must have all the essential elements of a

valid contract

It must be to refer a dispute, present or future,

between the parties to arbitration.

It may be in form of an arbitration clause in acontract or in form of a separate

agreement.[sec.7(2)].


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ADVANTAGES OF ARBITRATION

Avoidance of publicity, for proceeding areheld inprivate

Simplicity of procedure, as proceeding areheld more informally.

Reduction of expenses in most cases.

Saving of time, as proceeding are quicker thana trial in a court.

Social efficacy, the award of the arbitratorbeing the decision by the consent of parties.

Avoidance of delay and uncertainty involvedin appeals.


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Appointment of person having the required

technical qualification as arbitrator, should the

matter be of technical nature.

Impartiality in presenting facts and figures,

knowing that trade competitors are not present

to gain knowledge to the detriment of the

person giving the evidence.


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DISADVANTAGES OF ARBITRATION

The arbitrator may be incompetent orbiased

Injustice may result from the informality of the

procedure.


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Who can refer?

The arbitration agreement is a contracttherefore the parties must be competent toenter into a contract so that they can boundby the award of arbitrator.

These are followingsMinor

Manager of joint Hindu family

AgentsAtomies and counsels

Persons jointly interested


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partner

Trustee

insolvent


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Composition of Arbitral Tribunal

Number of Arbitrators[sec.10]

Parties are free determine it, but if they fail

then tribunal shall consist of a sole

arbitrator.

Appointment of arbitrator[sec.11]

Ground for challenge[sec.12]

An arbitrator may be challenged only if-

Circumstance exit that give rise to justifiable

doubts as to his independence or


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Challenge procedure[sec.13]

Here again parties are free to agree on aprocedure for challenging an arbitrator, ifnot success then arbitral tribunal shallcontinue the proceeding.

Failure or impossibility to act[sec.14]Termination of mandate means

authorization to act given to an arbitrator

Substitution of arbitrator[sec.15]

A substitute arbitrator shall be appointedaccording to the rules that wereapplicable to appointment of thearbitrator being replaced


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CONDUCT OF ARBITRAL PROCEEDINGS

EQUAL TREATMENT OF PARTIES (Sec. 18)The parties shall be treated with equality and each party shall be given afull opportunity to present his case.

Determination Of Rules Of Procedures (Sec. 19)

The arbitral tribunal shall not be bound by the code of civil procedure,1980 or the Indian Evidence Act 1972.This power of the arbitral tribunalincludes the power to determine the admissibility ,relevance , materialityand weight of any evidence.

Place Of Arbitration (Sec. 20)The parties are free to agree on the place of arbitration .The place ofarbitration shall be determined by the arbitral tribunal . It has also thepower , unless otherwise agreed by parties , to meet at any place itconsiders appropriate for consultation among its members, for hearingwitnesses, experts or the parties or for inspection of documents , goodsor other property.


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Commencement Of Arbitral ProceedingsUnless otherwise agreed by the parties , the arbitral proceedings in respect of aparticular dispute commence on the date on which a request for that dispute to bereferred to arbitration is received by the respondent.

Language(Sec. 22)The parties are free to agree upon the language or languages to be used. Failingan agreement , the arbitral tribunal shall determine the languages to be used inproceedings.

Statement Of Defense(Sec.23)The claimant shall state-

1.The facts supporting his claim

2.The points at issue

3.The relief or remedy sought

The respondent shall also state his defense in respect of the above particulars.

Hearings and Written Procedures(Sec. 24)The arbitral tribunal decides whether to hold oral hearings for the presentation ofevidence or for oral arguments , whether the proceedings shall be conducted onthe basis of documents and other materials.


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Default Of A Party (Sec. 25)Unless otherwise agreed by the parties , where , without showing sufficientcause,-

1.The claimant fails to communicate his statement of claim

2.The respondent fails to communicate his statement of defense

3.A party fails to appear at an oral hearing or to produce documentary evidence

Experts Appointed By Arbitral Tribunal (Sec. 26)Arbitral Tribunal may appoint one or more experts to report to it on specificissues to be determined by the arbitral tribunal

Court Assistance In Taking Evidence (Sec. 27)The arbitral tribunal , or a party with the approval of the arbitral tribunal mayapply to the court for assistance in taking evidence.

Rules Applicable To Substance Of Dispute (Sec. 28)The arbitral tribunal shall decide the dispute submitted to arbitration inaccordance with the substantive law for the time being in force in India.


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Decision Making By Panel Of Arbitrators (Sec. 29)Unless otherwise agreed by the parties , in arbitral proceedings with more than

one arbitrator , any decision of the arbitral tribunal shall be made by a majority

of all its members.

Settlement (Sec. 30)With the agreement of the parties , use mediation, conciliation, or other

procedures at any time during the arbitral proceedings to encourage settlement.

Termination Of Proceedings (Sec. 32)The arbitral proceedings shall be terminated by the final arbitral award or by an

order of the arbitral tribunal where-

1.The parties agree on the termination of the proceedings

2.The arbitral tribunal finds that the continuation of the proceedings has for any

other reason become unnecessary or impossible3.The claimant withdraws hi claims, unless the respondent objects to the order

and the tribunal recognizes a legitimate interest on his part in obtaining a final

settlement of the dispute


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AWARD

Award means an arbitral award. Its a final

judgment of the arbitral tribunal on all

matters referred to it.


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It must be made in writing.

It must follow the agreement.

It must be final & give a decision on allmatters referred.

It must be certain.

It must be dated & signed. It must be legal.

ESSENTIALS OF AVALID AWARD


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FORM AND CONTENTS OFARBITRAL AWARD

Must be made in writing & duly

signed(Sec.31(1)).

The signatures of all the members of

tribunal shall be sufficient(Sec.31(2)).

Reasons for award(Sec.31(3).

Date & place of arbitration(Sec.31(4)).Delivery of signed copy(Sec.31(5)).


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Make an interim award(Sec.31(6)).

interest(Sec.31(7)).

The Costs of an arbitration shall be fixedby the arbitral tribunal(Sec.31(8)).


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FINALITY OF ARBITRAL AWARDS(Sec.35)

An arbitral award shall be final & binding

on the parties and persons claiming under

them respectively.

CORRECTION

INTERPRETATION

SETTING ASIDE OF AN AWARD(Sec.34)


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CORRECTION AND INTERPRETATIONOF AWARD;

Within 30 days from the receipt of arbitral

award-

ADDITIONAL AWARD (Sec.33)


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SETTING ASIDE OF AN ARBITRALAWARD (Sec.34)

Application:-

Grounds:-

Documents

Arbitration, Group - 7