Conduct of arbitrations by
Advantages of Arbitration Benefits for the Parties permanent institutions
1. Choose the arbitrator(s); the International Chamber of Commerce's International Court of
•Arbitration affords the parties a choice 2. Choose the issues to be arbitrated; Arbitration,
World Intellectual Property Organization (WIPO) Arbitration
3. Choose the place of arbitration;
of the law & a choice of the judges that 4. Choose the substantive law that will control the
Center,
American Arbitration Association (AAA),
they do want & more important to merits of the dispute; China International Economic and Trade Arbitration
5. Choose the procedural rules;
reject the law which and to reject the 6. Choose the schedule;
Commission,
Indian Council for Arbitration, or the
particular judge whom they do not 7. Choose exhibits, witnesses and other evidence to International Center for Settlement of Investment Disputes
(ICSD),
be adduced including arranging for tests and site
want. visits;
International Chamber of Commerce (“ICC”), located in Paris.
The American Arbitration Association (“AAA”)
•Binding dispute settlement mechanism 8. Choose the form of relief to be awarded; London Court of International Arbitration
9. Choose the form of the award; and Arbitration Institute of the Stockholm Chamber of Commerce;
10. Agree to facilitate enforcement of the award.
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TERMS OF AN ARBITRATION
Objectives of Amendment AGREEMENT
Minimise the supervisory role of the Courts
Arbitral Tribunal to give reasons for Award In a country signatory to the New York Insert lawful terms as parties wish
Permit Arb. Tribunal to use Convention on the Recognition and terms must be stated with certainty
Mediation,Conciliation, other procedures Enforcement of Foreign Arbitral Awards (the powers of Arbitrator to be clearly stated
Arbitral Award enforced as if it were a decree “New York Convention”) the Award may be
enforced relatively ( more than 120 signatory questions to be determined by Arb .
of the court
Conciliation proceedings --same status and countries) Any matters for exclusion of reference
effect as an Arbitral Award No such all-encompassing Convention or Any technical or legal bar to the parties
Foreign Awards Treaty or legal regime applies to judgments should be inserted
rendered in national courts. Composition of Arbitral Tribunal
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Expectations from Arbitration ADVANTAGES OF Disputes inappropriate for resolution by
arbitration
An impartial, and expert, tribunal or arbitrator will decide the case.
The parties can select arbitrators with expertise in the issues and professionals
ARBITRATION French law: bankruptcy matters are inarbitrable.
who can be expected to reach reasonable decisions founded upon a mixture of India:
law and industry custom. Technical matter : appropriate special Matrimonial matters, like divorce or restitution of conjugal
Privacy and confidentiality in contrast to litigation in public forums. qualifications of the Arbitrator. rights;
1. Choose the arbitrator(s); matters relating to guardianship of a minor or other person
2. Choose the issues to be arbitrated; Speedier than a court case under disability;
3. Choose the place of arbitration; testamentary matters, for example, questions about the
4. Choose the substantive law that will control the merits of the dispute; saving in the costs validity of a will;
5. Choose the procedural rules;
unwanted publicity can be avoided insolvency matters, such as adjudication of a person as an
6. Choose the schedule; insolvent;
7. Choose exhibits, witnesses and other evidence to be adduced including Convenience of the parties as to time and criminal proceedings;
arranging for tests and site visits;
8. Choose the form of relief to be awarded; place questions relating to charities or charitable trusts;
matters falling within the purview of the Monopolies and
9. Choose the form of the award; and
Arb. Can view subject at any reasonable time Restrictive Trade Practices Act; dissolution or winding up of a
10. Agree to facilitate enforcement of the award. company.
[1] Copyright 2004 LexisNexis, Division of Reed Elsevier Inc., King of
Prussia, PA • www.mealeys.com matters involving morality, status and public policy cannot be
[2] The practice of choosing the most favorable jurisdiction or court in which a
referred to arbitration.
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Procedure
THE ARBITRATION AND CONCILIATION
(AMENDMENT) BILL, 2003 Arbitration Agreement-Section -7
Claimant (or advocate) opens his case ---also
to enable the judicial authority to decide (1) an agreement ---to submit all or defence to counterclaim
jurisdictional issues, certain disputes which have arisen or Claimant calls and examines his witness--who
to empower the Courts to make reference to which may arise---in respect of a may be cross -examined by the respondent
arbitration in case all the parties to a legal defined legal relationship, whether
proceeding enter into an arbitration Claimant may re-examine him
contractual or not.
agreement to resolve their disputes during Respondent opens his case
the pendency of such proceeding before it; (2) may be a part of a contract or in
Respondent calls and examines his witness-
to provide for the appointment of arbitrators the form of a separate agreement
may be cross examined by the claimant
by the Chief Justice of the Supreme Court or (3) shall be in writing
the High Court to prevent writ petitions being
filed on the basis that it is an administrative
order of the Chief Justice.
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THE ARBITRATION AND CONCILIATION Appointment of an Arbitrator If witness is cross examined the Respondent
(AMENDMENT) BILL, 2003-2 may re-examine him
Section -11: (1) person of any nationality
Respondent addresses the Arbitrator
where the place of arbitration under Part I of (2) parties to agree on a procedure for
appointment of Arb. The claimant replies
is in India, between Indian parties or an
Failing agreement as in above -- the two Arb Sec.19 ---not bound by CPC.1908 or the IEA
international arbitration Indian law will apply.
shall appoint a third Arb who shall act as the 1872---Freedom to agree on the procedure to
completion of arbitrations within one year; at be followed
the end of one year the Court will fix up a presiding Arb---Umpire.
30 days Sec.20 ----place of arb
time schedule for completion of the
proceedings until the award is passed. failing which CJ or any person or institution Evidence--Oral
designated by him , Documentary, Heresay,Primary
empower the arbitral tribunal to pass
Evidence, Secondary Evidence
peremptory orders for implementation of Sec. 16--may rule on its own jurisdiction
interlocutory orders and in case they are not
implemented, to enable the Court to order
costs or pass other Arb/MS
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THE ARBITRATION AND CONCILIATION
(AMENDMENT) BILL, 2003-3 Procedure by Arbitrator JUDICIAL INTERVENTION
Sec.8--shall refer the matter to Arb. In a
provide for the Arbitration Division in the High Delivery of points of claim and defence- matter which is the subject of an Arb.
Courts, for the speedy enforcement of awards -similar to pleadings Sec. 35 --finality of Arb. Awards
provide provisions for speeding up and Sec. 34--court can set aside
particulars of claim and counterclaim
completing all arbitrations 1.incapacity of the parties.
to introduce a new Chapter XI relating to discovery and inspection of documents 2.not valid under law.3.no proper notice.4.
single member fast track arbitral tribunal and inspection of property and things by (1) beyond the scope of the matter decided to be
award will have to be pronounced within six arbitrator (2) parties referred to Arb.5. Composition of the Arb.
months and to specify procedure therefore in Tribunal defective.
fixing the time and place of hearing
a new Schedule.
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Sec. 34--court can set aside Arb. Award (7)(a) payment of money: include in the sum
for which award is made ---interest to paid
1.incapacity of the parties. from date on which cause of action arose &
the date on which award is made
2.not valid under law.
(b) provision of 18% interest from the date of
3.no proper notice. award to the date of payment------unless the
4. beyond the scope of the matter award otherwise directs.
decided to be referred to Arb. Award does not transfer a property : parties
are directed to execute conveyance or other
5. Composition of the Arb. Tribunal wise make a transfer of the property in
defective. dispute
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No second appeal will lie from an order
passsed in an appeal:: right to appeal to the
S.C. is not affected Sec.--37
Mandatory for judicial authority to refer to
Arb. Sec.---45
Limitation act 1963 shall apply to
proceedings in Arb. Sec.---43
Time commenced --on the date on which the
request for the dispute to be referred to arb
is received by the respondent Sec ---21
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Content of Arb. Award
Sec. 31--- (1) shall be made in writing&
signed by the Arb. Tribunal
(3) shall state the reasons , unless
(a) parties have agreed no
reasons be given (b) award under
agreed terms under Sec. 30
(4) state date and place
(5) signed copy delivered to each party
(6) interim award
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