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Alternate Dispute Resolution Questions 101 to 121 (3 Marks)

Hemant More — Mon, 16 May 2022 11:29:35 +0000

Law > Civil Laws > Alternate Dispute Resolution > Concept of ADR

Q101.Write a note on Lok Adalat as an ADR mechanism.

Alternative Dispute Resolution or ADR refers to an assortment of dispute resolution procedures that primarily serve as alternatives to litigation and are generally conducted with the assistance of a neutral and independent third party.

The word “Lok Adalat” means ‘People’s Court. The Legal Services Authority Act makes provisions in relation to the establishment, powers and functions etc. of the Lok Adalat. The object of establishment of Lok Adalat is to settle the disputes quickly by counselling and discussions, etc. Its basis is to provide quick justice with the mutual and free consent of the parties. Other objects are to reduce burden on the Courts so that the problem of law’s delay may be solved and people may get justice within due time. Lok Adalat provides alternative resolution or devise for expeditious and inexpensive justice.

Q102. Under what grounds can an Arbitral award be aside?

Grounds of Setting Aside of Arbitration Award:

The following are the grounds on which an award can be set aside:

Incapacity of a party.
Unlawful agreement.
No notice to the other party.
Subject matter extent to the scope of the arbitration agreement.
Formation of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.

Q103.What is the procedure for termination of arbitral proceedings?

Section 32 of the Act deals with the termination of proceedings of arbitration. Section 32(1) of the Act unequivocally provides that only ‘final award’ shall terminate the arbitral proceedings. In Kifayatullah Haji Gulam Rasool Vs Bilkish Ismail Mehsania (2001) case, the Court held that arbitration proceedings shall automatically stand terminated only after making of final award, which decides or completes decision of claims which are presented.

Under Section 32(2) of the Act arbitral proceedings can also be terminated by an order of the Tribunal, which order can only be passed

when the claimant withdraws the claim or
when the parties agree on the termination of the proceedings or
when the Tribunal finds that continuation of proceedings has become unnecessary or impossible.

Subject to section 33 and subsection (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of arbitral proceedings.

Q104. What is the procedure for appointment of the conciliator?

Once the proposal of conciliation is accepted by the other party the next important step is to have a conciliator. Section 63 of the Arbitration and Conciliation Act, 1996 act provides that there under usual circumstances there will be only one conciliator and in no case the number of conciliators shall exceed three [section 63(2)] which is the maximum limit and the general rule is that they shall act jointly.

Q105.A dispute between “A‟ and “B‟ was pending before the court. Upon the request of both the parties the matter was referred to Lok Adalat. The presiding officer of Lok Adalat was the friend of Mr. ‟A‟. “B” came to know about this fact after the award was passed.

a. Can “B‟ appeal against the award?

b. What is the method adopted by Lok Adalat for settlement of disputes?

a) Yes, B can appeal against the award.According to Section 12(1) of the Arbitration and Conciliation Act,when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. Here B came to know that the presiding officer of Lok Adalat is friend of A after the award was passed. Actually, presiding officer of Lok Adalat must have informed B and would have said that this case cannot be heard by him as he is friend of A at the beginning itself. It is breach of duty under the Section on the part of the presiding officer.

b) The Lok Adalat will have similar powers of a Civil Court and is governed under the Code of Civil Procedure. A Lok Adalat has the authority to resolve all matters which may be pending before any court by way of agreement between the parties, as well as pre-litigative matters. Such matters may be of a civil or criminal nature (compoundable). The award granted by the Lok Adalat is the court’s own decision because it has been reached through the simplified form of conciliation rather than the court’s argument procedure. It focus on the compromise between the parties, if compromise is reached an award is made and it is binding on all the parties of the dispute. The evidence Act and procedures law are not strictly followed, while assessing the merits of the case. Every award of Lok Adalat shall be deemed as a decree of civil court. Every award of Lok Adalat shall be final and binding on all the parties to the disputed parties. No appeal shall lie from the award of Lok Adalat.

Q106. In case of international transaction in terms of a contract, a dispute arose between the parties. Petitioner filed an application for the appointment of arbitrator under Sec.11 of the Arbitration and Conciliation Act.

Whether court can appoint an arbitrator, when the alleged dispute under the contract was an international transaction?
Can provisions of Part I of the Arbitration and Conciliation act, 1996 be made applicable t5o commercial Arbitration held outside the country?
Cite decided cases.

Yes, Under Section 11 of the Arbitration and Conciliation act, 1996, the Court has power to appoint an arbitrator in case of an international transaction in accordance with the terms of the contract.
As per precedents, provisions of Part I of the Arbitration and Conciliation act, 1996, are equally applicable to international commercial arbitration held outside country unless any or all the provisions of the Act have been excluded by the agreement between the parties.
Bhatia International v. Bulk Trading S.A., AIR 2002 SC 1432 and Aurohill Global Commodities Ltd. v. MSTC Ltd. AIR 2007 SC 2706

Q108. Explain the procedure of international arbitration proceedings.

‘International arbitration’ or ‘Foreign arbitration’ is often taken to mean ‘international commercial arbitration’. Companies frequently include international arbitration agreements in their commercial contracts with other businesses, so that if a dispute arises with respect to the agreement, they are obligated to arbitrate rather than to pursue traditional court litigation.

According to Section 2(f) of the Arbitration and Conciliation Act, 1996, “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 for in India and where at least one of the parties is-

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

109. Mr. Kulkarni was appointed as an arbitrator in the matter of dispute relating to a building construction. Mr. Kulkarni informed the petitioner regarding his appointment and directed him to appear for the hearing. But the petitioner did not attend the hearing despite several adjournments. A final notice was sent that if the petitioner does not appear of the given date the proceedings will take place ex-parte and the award will be passed accordingly.

a. Can an arbitrator proceed ex-parte?

b. What is the remedy available to the party against whom ex-parte award is passed by the arbitrator?

Q110. An arbitration agreement was drawn between the parties and they decided to appoint a sole arbitrator. But the dispute arose between the parties regarding the appointment of the arbitrator and hence the parties could not appoint the arbitrator within the prescribed period of time.

What is the time limit to appoint an arbitrator?
What is the procedure of appointment of the arbitrator?

The Arbitration and Conciliation (Amendment) Act, 2015 introduced a new provision wherein a stipulated time limit is prescribed for the completion of the arbitration proceedings. Section 29A of the Act provides that an arbitration award shall be passed within 12 months from the date when the arbitral tribunal enters upon the reference. This duration can be extended by 6 months with the consent of both the parties.

Section 10(1) of the Arbitration and Conciliation Act, 1996 gives provision for the number of arbitrators in the arbitration tribunal. The parties to the dispute are allowed to mutually choose the number of arbitrators that shall establish the arbitral tribunal to adjudicate the dispute. It is, in any case, necessary that the number of arbitrators appointed shall be an odd number and not an even. This provision guarantees that there are no ties.

Q111. Reliance Industries, an Indian Company enters into a contract with Suzuki Industries from Japan. This contract also included arbitration clause. Mr. Lobo, an Indian was appointed as an arbitrator and the award was drawn according to the laws in India. a. What is foreign award? b. Can the foreign award be executed in India?

Part II of the Act deals with foreign awards based on New York and Geneva conventions. An arbitral award is said to be a foreign award if it has a foreign element in it or has one or more of the following factors:

If the award is made in a foreign country.
If the subject matter of the arbitration agreement involves international transaction that, is it is related to international trade, commerce, investment, etc.
Where atleast one of the parties to arbitration agreement is a foreign national
If the award is made in accordance with the foreign law.

Yes. The foreign award can be enforced in India only if the court is satisfied that the foreign award is enforceable as per Chapter I Part II of the Arbitration and Conciliation Act, 1996 and is made in accordance with Section 47 and 49 of the Act, after which it can be referred as “Deemed Decree”.

Q112. Elaborate briefly about International Commercial Arbitration.

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

Q113. Briefly explain any 3 roles of the Conciliator under Arbitration and Conciliation Act, 1996.

According to section 67 of the Act,

the conciliator shall maintain his independence and impartiality and persuade the parties in away to help them reach an amicable settlement.
the conciliator should not only uphold the principles of objectivity, fairness and justice but should also keep in mind the rights and obligations of the parties and various circumstances surrounding the dispute.
the conciliator may conduct the proceedings of the case in a manner that is appropriate in his opinion. However, he should consider the circumstances leading to the case and the wishes of the parties or any other requests of the parties that are related to the subject of the dispute and are reasonable in the eyes of the law.
a settlement of the dispute can be proposed by the conciliator at any time when the proceedings are still in force. Any such settlement proposition need not be in writing or accompanied by a statement of reasons, necessarily.

Q114. Define the term “Court‟ as defined under Arbitration and Conciliation Act, 1996.

According to Section 2(c) of the Arbitration and Conciliation Act, 1996,” Court” means a Civil Court having jurisdiction to decide the questions forming the subject- matter of the reference if the same had been the subject- matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court.

Q115.Write in brief about “Lien on Award‟.

An arbitrator is well within his right to demand payment before final pronouncement of award, for his services rendered. The ordinary practice is for him to notify the parties the charges for his services as soon as the award is ready. He may retain the award until the charges are paid by the parties. This retention of award may be called the arbitrator’s lien on the award. This lien, however, does not extend to the documents and other information rendered by the parties to the arbitrator. Thus, the arbitrator cannot hold and retain the official documents of any party, until they have paid the charges. Arbitrator only has a lien on the arbitral award and nothing else.

It sometimes happens that at the absolute end of an arbitration proceeding, one or both of the parties refuse to pay the fees of the arbitrator. The arbitrator can send a time bound notice to the parties for them to pay the appropriate amount. If the parties on completion of the time don’t pay the fees, then the arbitrator sends a final notice informing them of the pronouncement of the award and the failure to pay his fees will lead to lien on the award and retention of the same.

Q116. Briefly explain any three powers of the Lok Adalat.

Under Section 22 of Legal Services Authority Act, 1987, Powers of Lok Adalats are as follows:

The Lok Adalat will have similar powers of a Civil Court and is governed under the Code of Civil Procedure.
It has the power to summon and enforce the attendance of a witness and their examination under oath;
It has power to order the discovery and production of any document;
It has power to receive evidence on affidavits;
It has power to receive evidence regarding a particular case.
It has power to ask for any public record or document or copy of such record or document from any court or office;
The Lok Adalat has the power to follow its own procedure for determining any dispute.
The proceeding of a Lok Adalat is considered to be judicial proceedings.

Q117. Elaborate briefly about Arbitration Agreement.

According to Section 7(1) of the Arbitration and Conciliation Act, 1996, the “Arbitration Agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. Thus, the existence of a dispute is a pre-requisite to invoke arbitration and such a dispute must be covered by the arbitration clause to enable arbitrator to assume jurisdiction. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Q118.Write in brief about the “New York Convention Award‟.

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958 (the New York Convention), is described as the most successful treaty in private international law. It is adhered to by more than 160 nations. Sections 44 to 52 of the Arbitration and Conciliation (Amendment) Act, 2015 deals with foreign awards passed under the New York Convention.

In its simplest terms, the Convention incorporated two radical principles which, at that time, revolutionised the resolution of disputes with international elements, namely, enforcement of arbitration agreements and enforcement of foreign arbitral awards. Whilst the former provision upholds the principle of party autonomy by requiring national courts to refer the parties to arbitration, the latter incorporates a system of recognition of foreign arbitral awards in States bound by the Convention subject to limited exceptions. Furthermore, the Convention establishes a minimum legal framework, but it permits national courts to enforce arbitral awards under higher standards than those included in its provisions.

Two pre-requisites for enforcement of foreign awards under the New York Convention. These are:

The country must be a signatory to the New York Convention.
The award shall be made in the territory of another contracting state which is a reciprocating territory and notified as such by the Central Government.

Q119.Elaborate briefly the provisions relating to Court‟s assistance in taking evidence under Arbitration and Conciliation Act, 1996.

There may be situations when parties do not cooperate with the tribunal during the evidence stage. Although the Tribunal is not bound to follow the rules of the Code of Civil Procedure and the Evidence Act, there is no provision under the Arbitration and Conciliation Act that gives the tribunal the power to compel production of documents and summon witnesses in the same way that a civil court can. Hence, in such situations, for an arbitral tribunal, assistance of the court may be necessary to obtain evidence.

Section 27 of the Arbitration and Conciliation Act, 1996,states the procedure that one has to follow for asking the Court for assistance in taking evidence in an arbitration proceeding. Either the Arbitral Tribunal or any party after taking approval of the Tribunal may apply to the court for assistance in taking evidence. After the application is made, the Court may:

accept the application and conduct all evidence taking procedures by itself
consider passing the same authority to a neutral administrator
order that the evidence be provided directly to the Arbitral Tribunal
decide on the procedure that the Tribunal and the parties have to abide by, but

But the execution of the procedure has to be done by the Tribunal itself.

Q120. Mr. A and B had appointed an arbitrator Mr. C for their present dispute. Mr. A submitted a statement of claim. What will happen if Mr. A dies during procedure? Explain what will the procedure be terminated if Mr. B fails to submit the statement of defence to Mr. C?

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Alternate Dispute Resolution Questions 121 to 142 (3 Marks)

Hemant More — Mon, 16 May 2022 11:24:55 +0000

Law > Civil Laws > Alternate Dispute Resolution > Concept of ADR

Q121. Highlight the judgement laid down in Bhatia International v. Bulk Trading case.

In Bhatia International v. Bulk Trading S.A., AIR 2002 SC 1432, case, the Supreme Court held that Part I of the Act applies even to arbitrations seated outside of India, unless the parties had expressly or impliedly agreed to exclude Part I of the Act. This decision was a well-intentioned attempt to deal with a perceived lacuna in the Act in that the power for Indian courts to order interim relief in support of arbitration proceedings is found in Part I of the Act (at section 9).

If Part I applied only to arbitrations seated inside India, one consequence would be that there was no power for the Indian court to grant interim relief in aid of a foreign-seated arbitration; for example, an injunction preserving property in India. However, difficulties arose as parties relied on Bhatia International to invite the Indian courts to apply other provisions of Part I to arbitrations commenced and awards rendered in seats outside India. This produced the significant consequence that even in the context of foreign-seated arbitrations, where Part I of the Act was not excluded, Indian courts could, amongst other things:

Award interim relief in support of the arbitration;
Appoint arbitrators in appropriate circumstances; and
Set aside arbitral awards.

Q123. Explain any three salient features of the Arbitration and Conciliation Act,1996.

Following are some of the key features of the Arbitration and Conciliation Act, 1996 (Write only Three):

Replacement of three old statutes: The Act is a consolidation of three laws of arbitration previously in force – viz, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937, and the Foreign Awards (Recognition and Enforcement) Act, 1961 into one enactment. Though the three Acts have been consolidated the provisions regarding each of the acts have been kept distinct within the 1996 Act.
Necessity of Arbitration Agreement: The Act emphasizes the importance of the Arbitration agreement without which arbitration proceedings cannot be instituted. The arbitration agreement is a clause in a contract or an agreement between parties stating that any dispute will be referred to arbitration proceedings. The Act mentions that the arbitration agreement or arbitration clause must contain the following information – the subject matter of dispute, the timing of dispute (past/present/future), number of arbitrators, qualifications of arbitrators, jurisdiction, and composition of the tribunal.
Application to Domestic and International Arbitration: The Act provides the procedure not only for domestic arbitration but also includes International Commercial Arbitration. The 1996 Act is a law that relates to the enforcement of foreign Arbitration awards and ensures greater autonomy in the process of arbitration and puts a limit on the intervention of the judiciary.
Procedural Advantage: Arbitral Tribunal has full powers to decide the procedure to be followed unless parties agree on the procedure to be followed. The Tribunal also has powers to determine the admissibility, relevance, materiality, and weight of any evidence. The place of arbitration will be decided by mutual agreement. However, if the parties do not agree to the place, the same will be decided by a tribunal. Similarly, language to be used in arbitral proceedings can be mutually agreed upon. Otherwise, Arbitral Tribunal can decide. The Act allows parties to choose the substantive law to be applied by the arbitration tribunal and this must also be mentioned in the arbitration agreement.
Party Autonomy: The concept of party autonomy is the central theme of the Act. The expressions used in the Act – ‘unless otherwise agreed by the parties’, ‘with the agreement of parties’, `if the parties in dispute have expressly authorized’ etc., strengthens the idea of party autonomy.
Minimal Interference by Judiciary: One of the major defects of earlier arbitration law was that the party could access court almost at every stage of arbitration – right from the appointment of an arbitrator to implementation of the final award. Thus, the defending party could approach the court at various stages and stall the proceedings. Now, the approach to court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral Award is made.
Arbitral Award: Decision of Arbitral Tribunal is termed as ‘Arbitral Award’. The arbitrator can decide the dispute ex aequo et bono (In justice and in good faith) if both the parties expressly authorized him to do so. The decision of the Arbitral Tribunal will be by majority. The arbitral award shall be in writing and signed by the members of the tribunal. The award should be dated and the place, where it is made, should be mentioned. Copy of award should be given to each party.
Reasoned Award: The award must be in writing and signed by the members of the Arbitral Tribunal. It must state the reasons for the award unless the parties have agreed that no reason for the award is to be given. Previous to this Act reasoning of the award by the arbitrator was not mandatory.
Enforceability of Award: Under this Act, every final arbitral award is enforceable as a decree of the court of law and not required to be made a “rule of court”.
Over-Riding Effect of the Act: Section 5 of the Act clarifies that notwithstanding anything contained in any other law for the time being in force, in matters governed by the Act, the judicial authority can intervene only as provided in this Act and not under any other Act.
Applicability of the Limitation Act: For this purpose, the date on which the aggrieved party requests another party to refer the matter to arbitration shall be considered. If on that date, the claim is barred under Limitation Act, the arbitration cannot continue. If the Arbitration award is set aside by Court, time spent in arbitration will be excluded for purpose of the Limitation Act.
Aligning Procedure with the UNCITRAL Model Law: The Act has been enacted taking into account the United Nation’s Commission on International Trade Law (UNCITRAL) Model Law and UNCITRAL Conciliation Rules. This promotes unification and harmonization of International Tarde Law by harmonizing concepts of Arbitration and Conciliation of the legal system of the world.
Clear Distinction Between Arbitration and Conciliation: The provisions that relate to the process of Arbitration are contained in Part I which includes Chapters I to IX, while the provisions that relate to the process of Conciliation are dealt with in Part III that includes section 61 to 81.
Conciliation: Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator. Part III of the Act makes provision for conciliation proceedings. In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is an arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give an award. He only helps parties in arriving at a mutually acceptable settlement. After such an agreement, they may draw and sign a written settlement agreement. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award.

Q124.Explain the role of the Conciliator.

According to section 67 of the Arbitration and Conciliation Act, 196.

the conciliator shall maintain his independence and impartiality and persuade the parties in away to help them reach an amicable settlement.
the conciliator should not only uphold the principles of objectivity, fairness and justice but should also keep in mind the rights and obligations of the parties and various circumstances surrounding the dispute.
the conciliator may conduct the proceedings of the case in a manner that is appropriate in his opinion. However, he should consider the circumstances leading to the case and the wishes of the parties or any other requests of the parties that are related to the subject of the dispute and are reasonable in the eyes of the law.
a settlement of the dispute can be proposed by the conciliator at any time when the proceedings are still in force. Any such settlement proposition need not be in writing or accompanied by a statement of reasons, necessarily.

Q125. Explain types of Arbitrations.

Different kinds of arbitrations are as follows:

Domestic Arbitration: It is that type of arbitration, which happens in India, wherein both parties must be Indians and the conflict has to be decided in accordance with the substantive law of India.
International Arbitration: When arbitration happens within India or outside India containing elements which are foreign in origin in relation to the parties or the subject of the dispute, and the dispute is decided in accordance with substantive law in India or any other country, then it is called as International Arbitration.
Institutional Arbitration: When an arbitral Institution conducts arbitration in accordance with the prescribed rules of such institution, it is called Institutional Arbitration.
Ad-hoc Arbitration: If the parties agree among themselves and arrange for arbitration, it is called Ad-hoc Arbitration without having an institutional proceeding. It can either be domestic, international or foreign arbitration.
Statutory Arbitration: It is mandatory arbitration, which is imposed on parties by the operation of law. There are many central and State Acts which makes arbitration mandatory.
Fast Track Arbitration: It is a time bound arbitration, with strict rules of procedure, which do not allow for any laxity or scope for extensions of time and delays.

Q126.Explain the role of Mediator.

The role played by the mediator is a key ingredient in the qualitative success of mediation.

The mediator is a facilitator and not a decision-maker. Unlike the Judge in a traditional Court setting or for that matter even an arbitrator; the mediator is neither a trier of fact nor an arbiter of disputes.
He should provide structure, focus, and assistance with communication to the parties in dispute. The role of the mediator is to create an environment in which parties before him are facilitated towards resolving the dispute in a purely voluntary settlement or agreement.
He should provide unbiased, impartial assistance and should not have any interest in the dispute. As a neutral, the function of the mediator is to enable the parties to arrive at a mutual and voluntary agreement.
He has to open up communication between the parties and between the parties and himself.
He has to enable the parties to understand their own interests and to understand the interests of the disputing party.
He must enable parties to distinguish between their positions and interests and to appreciate and evaluate their own interests and those of each other.
He has to ensure that through the mediation dialogue parties arrive at a solution which is in their best interest.
He has to control the process of negotiation.

Q127.What do you mean by Arbitral Award?

An arbitration award is an instrument embodying the decision of the arbitral tribunal, given after determination in a quasi-judicial manner of matters in dispute between two or more contending parties, referred in pursuance of valid written arbitration agreement between them providing for such reference giving arbitrators the power to decide and imposing a duty which makes it incumbent upon the parties to obey the decision arising from the submission.

Essentials of Arbitration Award:

The award must be in writing. (Section 31(1))
It must be signed by all or majority members of the arbitral tribunal. Reasons for the non-signing of defaulting members should be mentioned in the award. (Section 31(2))
It must reasonable, legal and possible. (Section 31(3))
It must have a date and place of arbitration (Section 31(4))
It must talk about the cost of the arbitration (Section 31(5))
It must be certain. If it is uncertain, it cannot be enforced.
It must follow the agreement and not purport to decide matters, not within the agreement. An award outside the agreement is void, and the void award cannot be severed from the rest of the award, the whole award is void.
It must be final.
It must dispose-off all the differences submitted to arbitration.
The award must be reasoned in the circumstances earlier.

Q128.Explain – Foreign Award

If the award is made in a foreign country.
If the subject matter of the arbitration agreement involves international transaction that, is it is related to international trade, commerce, investment, etc.
Where a tleast one of the parties to arbitration agreement is a foreign national
If the award is made in accordance with the foreign law.

The New York Convention defines “foreign award” as an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960

Q129.Explain – Lok Adalat.

Under Section 22 of Legal Services Authority Act, 1987, Powers of Lok Adalats are as follows:

The Lok Adalat will have similar powers of a Civil Court and is governed under the Code of Civil Procedure.
It has the power to summon and enforce the attendance of a witness and their examination under oath;
It has power to order the discovery and production of any document;
It has power to receive evidence on affidavits;
It has power to receive evidence regarding a particular case.
It has power to ask for any public record or document or copy of such record or document from any court or office;
The Lok Adalat has the power to follow its own procedure for determining any dispute.
The proceeding of a Lok Adalat is considered to be judicial proceedings.

Q130. Write any three qualifications of an Arbitrator.

Requisite qualifications of arbitrator are as follows:

The arbitrator must have requisite qualifications and none of the disqualifications prescribed in the arbitration agreement.
The arbitrator should possess all the required capacity by law to assume the office of the arbitrator.
H must be a person of the general reputation of fairness, integrity, and capable of applying objectivity in arriving at settlement in the dispute.
The arbitrator should be free from any bias
The arbitrator must be free from any connection with parties and the subject matter.

Q131.What do you mean by misconduct of Arbitrator?

Misconduct of Arbitrator means that, improper behaviour that involves the bribing of an Arbitrator or the presence of a personal interest of an arbitrator in the dispute. This may cause improper behaviour in an ethical pr deontological manner and covering all the instances.

In Cochin Shipyard and Apeejay Shipping case, the Apex court ruled that the allegations of misconduct by an arbitrator can only be proved on the basis of the arbitration proceedings and its records and no witnesses can be called in to record fresh oral evidence to substantiate the charge. The Court also observed that legal misconduct would be complete if the arbitrator on the face of the award arrives at an inconsistent conclusion or arrives at a decision by ignoring material documents which can help in arriving at a just and fair decision.

Q.132.Explain – Negotiation is the process of dispute resolution.

Negotiation is a method of dispute resolution whereby a dispute between two individuals or groups is settled amicably by an impartial third person called as a negotiator, using different techniques. The negotiator, in this form of resolution, uses various communication methods to bring the parties of the dispute to a settlement. The advantages of negotiation are a follows:

since negotiation is an informal process, it is relatively flexible.
Quick resolutions as compared to litigation.
It facilitates in maintaining a healthy relationship between the disputing parties.
Takes place in a private environment

Q133.What do you mean by foreign Arbitration?

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

Q134.What is de jure and de facto impossibility to act for an arbitrator?

Section 14 of the Arbitration and Conciliation Act, 1996, governs the situation of termination of the mandate of the arbitrator because of his failure to act. One of the grounds for termination of the mandate under Section 14 is that the arbitrator becomes de jure or de facto unable to perform his function.

De Jure refers to an arbitrator’s legal incapacity to perform his functions under the law and relates to circumstances under which the arbitrator by law is barred from continuing in office. For example: if an arbitrator becomes bankrupt or convicted for a criminal offence, then he becomes de jure unable to adjudicate the case. De Facto refers to factual inability. It relates to a factual happening during the process of arbitration. For example: if the arbitrator falls seriously ill or has some physical incapacity, then he becomes de facto unable to perform his function.

Q135.What is conciliation?

Conciliation is a process of persuading parties to reach settlement in existing and ongoing conflict with the help of third impartial party called conciliator with the to preserve the relationship they have with each other. There is no need of pre-agreement for starting the process of conciliation but acceptance to the process by both parties is necessary. Sections 62 – 81 of the Arbitration and Conciliation Act thus provide a complete and a comprehensive procedure for Conciliation from initiation of the process of Conciliation to the settlement of dispute, evidence, roles of Conciliator etc. are completely covered in the aforesaid sections.

Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties’ legal positions, but also their; commercial, financial and / or personal interests. Like in mediation proceedings, the ultimate decision to agree on the settlement remains with the parties.

Q136 How many minimum and maximum number of arbitrators are permitted to be appointed on an Arbitrary Tribunal?

Thus minimum 1 and maximum any odd number can be appointed

Q137.What does Arbitration agreement mean?

Q138.What is the object of Lok Adalat?

The word “Lok Adalat” means ‘People’s Court. The Legal Services Authority Act makes provisions in relation to the establishment, powers and functions etc. of the Lok Adalat. he Preamble of the Act makes it clear that the it has been connected to constitutes the Legal Services Authorities to provide free and Competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and organise Lok Adalats to secure that operation of the legal system promotes Justice on a basis of equal opportunity.

The object of establishment of Lok Adalat is to settle the disputes quickly by counselling and discussions, etc. Its basis is to provide quick justice with the mutual and free consent of the parties. Other objects are to reduce burden on the Courts so that the problem of law’s delay may be solved and people may get justice within due time. Lok Adalat provides alternative resolution or devise for expeditious and inexpensive justice.

Q139.What is the status of Arbitration clause in void agreement?

According to Section 7(2) of the Arbitration and Conciliation Act, 1996, the arbitration agreement may be in the form of arbitration clause in a contract or in form of a separate agreement. An arbitration clause in a contract is generally regarded as an autonomous agreement that may survive the termination of the contract that contains it. This presumption is often referred as “separability” or the “doctrine of separability”, according to which an arbitration clause is a “separate contract” whose validity and existence are independent from the substantive contract.

As per Section 16(1) of the Act which is based on kompetenz kompetenz principle, the arbitral tribunal would be competent to rule its own jurisdiction including ruling on any objection regarding the validity of the arbitration agreement. The Act emphasizes that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the terms of the contract. It further provides that a decision by the Arbitral tribunal that the contract is null and void shall not entail ispo jure the invalidity of the arbitration clause.

Q140.What do you mean by foreign Arbitration?

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

Q141.What is a status of an arbitral award in judicial process?

It is provided under section 35 of the Arbitration and Conciliation Act, 1996 that the award after an arbitration proceeding shall be binding on the parties to the proceedings. When an arbitral award is made it is in totality concerning all the dimensions and implies that no more steps can be further taken by the arbitral tribunal. The award has a binding effect on the parties.

Section 34 of the Arbitration and Conciliation Act 1996 deals with the setting aside of the arbitral award. In order to set aside an arbitral award, individual needs to file an application in the court. The court in general accepts an application of challenge only if it comes under ambit of Sec. 34 only. Prior to filing an application in the court to set aside the award, the party filing the application has to hand over a notice of such filing to the opposite party. Application for setting aside award to the Court as defined in the Act (Principal Civil Court of Original Jurisdiction) should be made within 3 months from the date of receipt of final award of arbitration. Extension of further 30 days can be given at discretion of the Court. Section 20 and Section 44 of CPC are applicable. The effect of order setting aside the arbitral award is that where only a part of reward is set aside, the rest of the award is final and binding on parties and can be enforced under the Code of Civil Procedure.

Q142.What is UNCITRAL?

In an increasingly economically interdependent world, the importance of developing and maintaining a robust cross-border legal framework for the facilitation of international trade and investment is widely acknowledged. The United Nations Commission on International Trade Law (UNCITRAL) plays a key role in developing that framework in pursuit of its mandate to further the progressive harmonization and modernization of the law of international trade. UNCITRAL does this by preparing and promoting the use and adoption of legislative and non-legislative instruments in a number of key areas of commercial law. UNCITRAL maintains close links with international and regional organizations, both inter-governmental and non-governmental, that are active participants in the work programme of UNCITRAL and in the field of international trade and commercial law.

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The post Alternate Dispute Resolution Questions 121 to 142 (3 Marks) appeared first on The Fact Factor.

Alternate Dispute Resolution Questions 81 to 100 (3 Marks)

Hemant More — Mon, 16 May 2022 10:44:22 +0000

Law > Civil Laws > Alternate Dispute Resolution > Concept of ADR

Q81. State Salient features of Arbitration and Conciliation Act, 1996.

Following are some of the key features of the Arbitration and Conciliation Act, 1996 (Write only Three):

Replacement of three old statutes: The Act is a consolidation of three laws of arbitration previously in force – viz, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937, and the Foreign Awards (Recognition and Enforcement) Act, 1961 into one enactment. Though the three Acts have been consolidated the provisions regarding each of the acts have been kept distinct within the 1996 Act.
Necessity of Arbitration Agreement: The Act emphasizes the importance of the Arbitration agreement without which arbitration proceedings cannot be instituted. The arbitration agreement is a clause in a contract or an agreement between parties stating that any dispute will be referred to arbitration proceedings. The Act mentions that the arbitration agreement or arbitration clause must contain the following information – the subject matter of dispute, the timing of dispute (past/present/future), number of arbitrators, qualifications of arbitrators, jurisdiction, and composition of the tribunal.
Application to Domestic and International Arbitration: The Act provides the procedure not only for domestic arbitration but also includes International Commercial Arbitration. The 1996 Act is a law that relates to the enforcement of foreign Arbitration awards and ensures greater autonomy in the process of arbitration and puts a limit on the intervention of the judiciary.
Procedural Advantage: Arbitral Tribunal has full powers to decide the procedure to be followed unless parties agree on the procedure to be followed. The Tribunal also has powers to determine the admissibility, relevance, materiality, and weight of any evidence. The place of arbitration will be decided by mutual agreement. However, if the parties do not agree to the place, the same will be decided by a tribunal. Similarly, language to be used in arbitral proceedings can be mutually agreed upon. Otherwise, Arbitral Tribunal can decide. The Act allows parties to choose the substantive law to be applied by the arbitration tribunal and this must also be mentioned in the arbitration agreement.
Party Autonomy: The concept of party autonomy is the central theme of the Act. The expressions used in the Act – ‘unless otherwise agreed by the parties’, ‘with the agreement of parties’, `if the parties in dispute have expressly authorized’ etc., strengthens the idea of party autonomy.
Minimal Interference by Judiciary: One of the major defects of earlier arbitration law was that the party could access court almost at every stage of arbitration – right from the appointment of an arbitrator to implementation of the final award. Thus, the defending party could approach the court at various stages and stall the proceedings. Now, the approach to court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral Award is made.
Arbitral Award: Decision of Arbitral Tribunal is termed as ‘Arbitral Award’. The arbitrator can decide the dispute ex aequo et bono (In justice and in good faith) if both the parties expressly authorized him to do so. The decision of the Arbitral Tribunal will be by majority. The arbitral award shall be in writing and signed by the members of the tribunal. The award should be dated and the place, where it is made, should be mentioned. Copy of award should be given to each party.
Reasoned Award: The award must be in writing and signed by the members of the Arbitral Tribunal. It must state the reasons for the award unless the parties have agreed that no reason for the award is to be given. Previous to this Act reasoning of the award by the arbitrator was not mandatory.
Enforceability of Award: Under this Act, every final arbitral award is enforceable as a decree of the court of law and not required to be made a “rule of court”.
Over-Riding Effect of the Act: Section 5 of the Act clarifies that notwithstanding anything contained in any other law for the time being in force, in matters governed by the Act, the judicial authority can intervene only as provided in this Act and not under any other Act.
Applicability of the Limitation Act: For this purpose, the date on which the aggrieved party requests another party to refer the matter to arbitration shall be considered. If on that date, the claim is barred under Limitation Act, the arbitration cannot continue. If the Arbitration award is set aside by Court, time spent in arbitration will be excluded for purpose of the Limitation Act.
Aligning Procedure with the UNCITRAL Model Law: The Act has been enacted taking into account the United Nation’s Commission on International Trade Law (UNCITRAL) Model Law and UNCITRAL Conciliation Rules. This promotes unification and harmonization of International Tarde Law by harmonizing concepts of Arbitration and Conciliation of the legal system of the world.
Clear Distinction Between Arbitration and Conciliation: The provisions that relate to the process of Arbitration are contained in Part I which includes Chapters I to IX, while the provisions that relate to the process of Conciliation are dealt with in Part III that includes section 61 to 81.

Q82. State any three differences between Arbitration & Conciliation.

Arbitration	Conciliation
Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute.	Conciliation is a process of persuading parties to reach settlement in existing and ongoing conflict with the help of third impartial party called conciliator with the to preserve the relationship they have with each other.
The third impartial party is called arbitrator.	The third impartial party is called conciliator
An arbitrator has the power to enforce his decision.	A conciliator do not have the power to enforce his decision.
Pre-agreement is required for starting arbitration process.	There is no need of pre-agreement for starting the process of conciliation but acceptance to the process by both parties is necessary.
Arbitration is available for existing and future disputes.	Conciliation is available only for the existing disputes.
Sections 1 – 61 of the Arbitration and Conciliation Act, 1996 deals with the process of arbitration.	Sections 62 – 81 of the Arbitration and Conciliation Act, 1996 deals with the process of conciliation.
The ultimate decision to agree on the settlement remains with the parties.he parties are bound by the decision of the arbitrator.	The ultimate decision to agree on the settlement remains with the parties.

Q83.What is the settlement agreement?

When the conciliator sees the possibility of settlement of dispute, the settlement process takes place under section 73 of The Arbitration and Conciliation Act, 1996. Generally, decision of the conciliation proceedings is not binding on the parties but if the parties resort to settlement of award under this section then the settlement agreement becomes binding on the parties. Parties have the option of either drawing up the terms settlement agreement by themselves or take the assistance of conciliator and at last the agreement is signed by both the parties and authenticated by the conciliator. Such agreement reached is called settlement agreement or conciliation agreement. As per section 74 of The Arbitration and Conciliation Act, 1996, the settlement agreement drawn under section 73 is kept in par with arbitral award in the arbitration proceedings under section 30 of The Arbitration and Conciliation Act, 1996 and it is binding like arbitral award.

Q84. What is the status of the award of Lok-Adalat?

The word “Lok Adalat” means ‘People’s Court. The Legal Services Authority Act makes provisions in relation to the establishment, powers and functions etc. of the Lok Adalat. The object of establishment of Lok Adalat is to settle the disputes quickly by counselling and discussions, etc. Its basis is to provide quick justice with the mutual and free consent of the parties.

The Lok Adalat will have similar powers of a Civil Court and is governed under the Code of Civil Procedure. Every award of Lok Adalat shall be deemed as a decree of civil court. Every award of Lok Adalat shall be final and binding on all the parties to the disputed parties. No appeal shall lie from the award of Lok Adalat. It focusses on the compromise between the parties, if compromise is reached an award is made and it is binding on all the parties of the dispute. The evidence act and procedures law are not strictly followed, while assessing the merits of the case.

Q85.Write short note on New York Convention

Two pre-requisites for enforcement of foreign awards under the New York Convention. These are:

The country must be a signatory to the New York Convention.
The award shall be made in the territory of another contracting state which is a reciprocating territory and notified as such by the Central Government.

Q86. When award Can be set aside?

Section 34 of the Arbitration and Conciliation Act 1996 deals with the setting aside of the arbitral award. In order to set aside an arbitral award, individual needs to file an application in court. The court in general accepts an application of challenge only if it comes under the ambit of Sec. 34 only. Prior to filing an application in the court to set aside the award, the party filing the application has to hand over a notice of such filing to the opposite party. Application for setting aside award to the Court as defined in the Act (Principal Civil Court of Original Jurisdiction) should be made within 3 months from the date of receipt of the final award of arbitration. Extension of further 30 days can be given at the discretion of the Court. Section 20 and Section 44 of CPC are applicable. The effect of the order setting aside the arbitral award is that where only a part of the reward is set aside, the rest of the award is final and binding on parties and can be enforced under the Code of Civil Procedure.

Grounds of Setting Aside of Arbitration Award:

The following are the grounds on which an award can be set aside:

Incapacity of a party.
Unlawful agreement.
No notice to the other party.
Subject matter extent to the scope of the arbitration agreement.
Formation of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.

Q87. What is Geneva convention? Write important provisions.

Sections 53-60 of the Arbitration and Conciliation (Amendment) Act, 2015 contains provisions relating to foreign awards passed under the Geneva Convention. The conditions for enforcement of foreign awards under the Geneva Convention are provided under Section 57 of the Arbitration and Conciliation Act, 1996. These are as follows:

the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;
the subject-matter of the award is capable of settlement by arbitration under the law of India;
the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;
the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;
the enforcement of the award is not contrary to the public policy or the law of India.

Q88. Write short note on Arbitrator.

Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute. Chapter III of the Arbitration and Conciliation Act, 1996 lays down the arrangements for the Composition of an Arbitral Tribunal. Section 10(1) of the Arbitration and Conciliation Act, 1996 gives provision for the number of arbitrators in the arbitration tribunal. The parties to the dispute are allowed to mutually choose the number of arbitrators that shall establish the arbitral tribunal to adjudicate the dispute. It is, in any case, necessary that the number of arbitrators appointed shall be an odd number and not an even. This provision guarantees that there are no ties.

According to Section 10(2) of the Arbitration and Conciliation Act, 1996, if the parties to the dispute are unable to choose the number of arbitrators, in that case, just a single arbitrator shall be appointed. Section 11(1) of the Arbitration and Conciliation Act, 1996, a person of any nationality may be an arbitrator unless otherwise agreed by the parties. According to Section 11(2) of the Arbitration and Conciliation Act, 1996, the parties are free to agree on the procedure of appointment of the arbitrator or arbitrators.

Q89. How Conciliator is appointed?

Q90. When is a written communication deemed to have been received?

According to Section 21 of the Arbitration and Conciliation Act, 1996, unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. According to Section 3 of the Act, any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address.

Q91. What are interim reliefs? Name a few of the interim reliefs that can be granted by the Court in the arbitration proceedings

some interim measures or interim relief be granted by the arbitral tribunal or the court in order to protect the rights of the aggrieved party. In some particular instances, the interim relief may involve directives to some third parties also. Interim relief is like an urgent remedy granted in exceptional circumstances.

Under Section 9 of the Arbitration and Conciliation Act, 1996 interim relief is given by the court. Court exercises powers in certain matters of arbitration. This power can be invoked any time before the arbitral tribunal is constituted.

Some interim measures by Court are:

Appointment of guardian for a minor or person of unsound mind;
Preservation, interim custody or sale of goods (if the goods are of perishable nature) for any goods related to the arbitration agreement;
Securing the amount of claims;
Allowing the detention, preservation or inspection of any property or thing, authorizing any person to enter upon any land or building, authorizing any samples to be taken or observations to be made or experiments to be tried in order to expedite the process and obtain accurate & complete information or evidence;
Allowing interim injunction or appointment of receiver;
Any other reliefs which the court considers proper taking into account the facts and circumstances of the case.

Q92. Who can be appointed as an Arbitrator?

The requisite qualification of arbitrator are as follows:

The arbitrator must have requisite qualifications and none of the disqualifications prescribed in the arbitration agreement.
The arbitrator should possess all the required capacity by law to assume the office of the arbitrator.
H must be a person of the general reputation of fairness, integrity, and capable of applying objectivity in arriving at settlement in the dispute.
The arbitrator should be free from any bias
The arbitrator must be free from any connection with parties and the subject matter.

Q93. Explain the various methods of ADR available in India.

Arbitration: Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. The decision given by the arbitral tribunal is called an award.
Conciliation: Conciliation is a process of persuading parties to reach a settlement in existing and ongoing conflict with the help of a third impartial party called a conciliator with the intention to preserve the relationship they have with each other.
Mediation: Mediation is a mode of dispute resolution, where an amicable decision arises with the help of a third party known as a ‘mediator,’ without recourse to the court of law.
Negotiation: Negotiation is a method of dispute resolution whereby a dispute between two individuals or groups is settled amicably by an impartial third person called as a negotiator, using different techniques.
Lok Adalat: “Lok Adalat” means ‘People’s Court. The object of establishment of Lok Adalat is to settle the disputes quickly by counselling and discussions, etc. Its basis is to provide quick justice with the mutual and free consent of the parties.

Q94. Sanjay and Mohit partners in a partnership firm make an agreement in writing to refer a dispute between them in business to an arbitrator. In spite of this agreement Sanjay files a suit against Mohit relating to the dispute in a court. – What will be the implication here? Give a detailed explanation.

According to Section 7(1) of the Arbitration and Conciliation Act, 1996, the “Arbitration Agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. It is written agreement.

Once arbitration agreement is made for present or arising disputes, it bars jurisdiction of the court. Thus, court will not entertain request of suit by Sanjay. The dispute should be resolved through arbitration. Sanjay can only appeal to set aside the award on the following grounds:

Incapacity of a party.
Unlawful agreement.
No notice to the other party.
Subject matter extent to the scope of the arbitration agreement.
Formation of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.

Q95. What are the types of cases that the Lok Adalats deal with?

Lok Adalat has the jurisdiction to determine and to arrive at a settlement between the parties.

Any case pending before any court.
Any dispute which has not been brought before any court and is likely to be filed before the court.

Provided that any matter relating to an offence not compoundable under the law shall not be settled in Lok Adalat.

Q96. What are the disadvantages of Arbitration?

The disadvantages of arbitration are as follows:

Inability to Appeal: There is a very limited avenue for appeals. As a general and practical rule, the arbitrator’s decision cannot be appealed. Only in certain limited situations, such as when the arbitrator exceeded his or her authority or upon proof of corruption, fraud, or undue influence, will an arbitrator’s decision be reviewed by a district court.
Lack of Formal Evidence: There is a lack of a formal evidence process. The parties have to rely on the skill and experience of the arbitrator to sort out the evidence, rather than a judge or jury. No interrogatories or depositions are taken, and no discovery process is included in the process.
Mandatory Arbitration Contracts: Arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees sometimes do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job. If arbitration is mandatory as per the contract between the parties, then their right to approach the court is waived. Mandatory arbitration clauses in consumer contracts, employment contracts, and nearly every online agreement often work in favour of the company rather than the employee or consumer. Sometimes such agreements make the complainant pay for the arbitration process. It is not in favour of small consumers.
Possibility of Bias: Arbitrator is presumed to be neutral, impartial. It is also assumed that he has no personal interest in the subject matter before him. But considering human nature we can say that arbitrators may not be unbiased. If an arbitrator has a history of siding against one side in a dispute, that arbitrator may not be chosen, against one who has a history of being impartial to either side. if the arbitrator depends on the party for repeat business, there may be an inherent possibility of bias.
No Interlocutory orders: The process does not provide for the grant of interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of an award, such as the relocation of assets offshore.
Execution of Award: Arbitration awards are not directly enforceable; they are executable subject to judicial sanction. A party seeking to enforce an award must resort to judicial remedies. Efforts to enforce the award can be fiercely fought, which necessitates legal costs. Thus the advantage of arbitration incurring less cost is lost.
No Public Hearing: If the subject matter is important to the general public, it is necessary that the public should know about the proceedings. Arbitration is not done publicly. Hence general public cannot know the outcome and reasoning behind that outcome. There is a possibility of a settlement between parties, against the public interest.

Q97. Differentiate between a Mediator and a Conciliator.

Mediator	Conciliator
Mediation a mode of dispute resolution and the facilitation of a negotiated agreement by a neutral third party called a mediator who has no decision-making power without recourse to the court of law.	Conciliation is a process of persuading parties to reach settlement in existing and ongoing conflict with the help of third impartial party called conciliator with the to preserve the relationship they have with each other.
The mediator only acts as a facilitator and does not interfere in the decision of the dispute.	The conciliatorpersuades the parties in a way to help them reach an amicable settlement.
The role of the mediator is rather to assist the parties in reaching their own decision on a settlement of the dispute.	A settlement of the dispute can be proposed by the conciliator at any time when the proceedings are still in force.
The mediator should provide structure, focus, and assistance with communication to the parties in dispute.	The conciliator may conduct the proceedings of the case in a manner that is appropriate in his opinion. However, he should consider the circumstances leading to the case and the wishes of the parties or any other requests of the parties that are related to the subject of the dispute and are reasonable in the eyes of the law.

Q98. What are the advantages of using Conciliation as an alternative method of dispute resolution?

The advantages of conciliation are as follows:

It offers a more flexible alternative, for a wide variety of disputes, small as well as large;
It obviates the parties from seeking recourse to the court system;
No prior agreement is required.
It reserves the freedom of the parties to withdraw from conciliation without prejudice to their legal position inter se at any stage of the proceedings;
It is committed to the maintenance of confidentiality throughout the proceedings and thereafter, of the dispute, the information exchanged, the offers and counter-offers of solutions made, and the settlement arrived at.
It is cost-effective and produces a quicker resolution of disputes.
f) It facilitates the maintenance of the continued relationship between the parties even after the settlement.
There is no scope for corruption or bias.

Q99. Explain the term International Commercial Arbitration. How are they enforced in India?

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

The foreign award can be enforced in India only if the court is satisfied that the foreign award is enforceable as per Chapter I Part II of the Arbitration and Conciliation Act, 1996 and is made in accordance with Section 47 and 49 of the Act, after which it can be referred as “Deemed Decree”.

Q100. Explain the difference between arbitration and conciliation?

Arbitration	Conciliation
Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute.	Conciliation is a process of persuading parties to reach settlement in existing and ongoing conflict with the help of third impartial party called conciliator with the to preserve the relationship they have with each other.
The third impartial party is called arbitrator.	The third impartial party is called conciliator
An arbitrator has the power to enforce his decision.	A conciliator do not have the power to enforce his decision.
Pre-agreement is required for starting arbitration process.	There is no need of pre-agreement for starting the process of conciliation but acceptance to the process by both parties is necessary.
Arbitration is available for existing and future disputes.	Conciliation is available only for the existing disputes.
Sections 1 – 61 of the Arbitration and Conciliation Act, 1996 deals with the process of arbitration.	Sections 62 – 81 of the Arbitration and Conciliation Act, 1996 deals with the process of conciliation.
The ultimate decision to agree on the settlement remains with the parties.he parties are bound by the decision of the arbitrator.	The ultimate decision to agree on the settlement remains with the parties.

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The post Alternate Dispute Resolution Questions 81 to 100 (3 Marks) appeared first on The Fact Factor.

Alternate Dispute Resolution Questions 61 to 80 (3 Marks)

Hemant More — Wed, 11 May 2022 11:27:55 +0000

Law > Civil Laws > Alternate Dispute Resolution > Concept of ADR

Q61. When arbitration proceeding is deemed to have commenced?

The prescribed method of commencing arbitration proceedings will depend on the provisions of the arbitration agreement, the law governing the arbitration proceedings and any institutional or other rules that the parties have agreed should apply to the arbitration.

Q62. What is UNCITRAL?

Q63. What is the status of Arbitration clause in void agreement?

Q64. What do you mean by foreign Arbitration?

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

Q65. When Arbitration Conciliation Act, 1996 came into force?

The Arbitration and Conciliation Bill, 1995, was passed by both the Houses of the Parliament in August 1996 and received the assent of the President on 16 August 1996, which became the Arbitration and Conciliation Act, 1996. However, it is deemed to have commenced from 25 January 1996. Therefore, the provisions of this Act will only be application on arbitrations

Q66. How many minimum and maximum number of arbitrator are permitted to be appointed on an Arbitrary Tribunal?

Thus minimum 1 and maximum any odd number can be appointed.

Q67. What should be the place of arbitration?

Section 20 of the Arbitration and Conciliation act, 1996, deals with the place of arbitration. According to Section 20 of the Act, the parties are free to agree on the place of arbitration. Failing any agreement referred to in sub-section 20(1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. Notwithstanding sub-section 20(1) or sub-section 20(2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

Q68. State the extent of Judicial intervention u/s 5 of the Act.

Generally, Court of other Judicial Authority does not intervene in any arbitration proceedings or arbitration award. The law of non-intervention is based on the premise that when parties to any commercial contract by their own consent have decided to resolve their disputes, by way of mediation and conciliation through the process of arbitration, then judiciary would not have any reason to intervene in this proceeding of arbitration.

According to Section 5 of the Arbitration and Conciliation act, 1996,notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

According to Section 9 of the Act, party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court for interim measures.

Q69. Stages in which the court can grant interim measures in Arbitration

Q70. When award is considered as foreign award?

If the award is made in a foreign country.
If the subject matter of the arbitration agreement involves international transaction that, is it is related to international trade, commerce, investment, etc.
Where a tleast one of the parties to arbitration agreement is a foreign national
If the award is made in accordance with the foreign law.

Q71. What are the points of objection that can be raised to Set Off the Arbitration Award? Write relevant Sections?

The following are the grounds on which an award can be set aside:

Incapacity of a party.
Unlawful agreement.
No notice to the other party.
Subject matter extent to the scope of the arbitration agreement.
Formation of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.

Q72. Parties in dispute constituted an Arbitral tribunal with four Arbitrators according to an arbitration agreement between them.

Is the Award declared by such tribunal valid?
Who can appoint a preceding arbitrator in this Case?
When court has authority to appoint an arbitrator?

1. The award given by such arbitration tribunal is not valid.

Thus, parties are free to appoint any number of arbitrators, but that number should not be even and in this case the number of arbitrators is 4 which is even. Thus, the constitution of the arbitration panel itself is not as per the act. Hence its award is not valid.

2. In this case Chief Justice of India can appoint the presiding officer.

3. If parties fail to appoint an arbitrator or arbitrators, the court can appoint arbitrator.

73. What are the condition for enforcement of Foreign Award under the New York Convention?

Two pre-requisites for enforcement of foreign awards under the New York Convention. These are:

The country must be a signatory to the New York Convention.
The award shall be made in the territory of another contracting state which is a reciprocating territory and notified as such by the Central Government.

Q74. What do you mean by Non-Speaking Award and Discuss the situation when it can be Non-Speaking Award?

Section 31 of the Arbitration and Conciliation Act, 1996, deals with the form and contents of the award, in the subsection 3, specifically states that the award shall be a reasoned award in normal circumstances barring two situations. Firstly, if the parties in their agreement agreed that no need for reasons or secondly if it an award passed on agreed terms under Section 30 of the Act. The Section 30 of the Act deals with the arbitration awards passed by way of a settlement arrived at between the parties. The first case is that the parties themselves enter an agreement and expressly state that the arbitrator award need not state reasons. In such a situation, a question arises whether an arbitration award can be set aside since it is not a reasoned award, as specified in S.31(3) of the Act.

In Praveen Diwan and others Vs Himachal Pradesh Agro Industries Corporation Limited 2017 SCC online 1006, The Court held that the award cannot be set aside on the ground that it is not a speaking award. The judgment upheld an award stating that the “reasonableness of the reasoning of an arbitrator cannot be challenged” as held by the Supreme Court of India in Sudharshan Trading Company Vs Government of Kerala 1989 (2) SCC 38.

Q75.What do you mean by termination of Arbitral proceedings discuss?

Under Section 32(2) of the Act arbitral proceedings can also be terminated by an order of the Tribunal, which order can only be passed

when the claimant withdraws the claim or
when the parties agree on the termination of the proceedings or
when the Tribunal finds that continuation of proceedings has become unnecessary or impossible.

Subject to section 33 and subsection (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of arbitral proceedings.

Q76.What is Conciliation and what do you mean by the term Confidentiality in Conciliation proceedings?

Section 75 of the Act, deals with confidentiality. According to Section 75 of the Act, notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

Q77. A Mediator in process of mediation have received the documents, of which Mr. Purab a practical mediator, was not aware which will be helping to prove his case. After Mediation failed, Mr. Purab has applied to court to issue summons to the mediator to produce the said document before the Court. Can the court issue summons and apply? Substantiate your answer with reasons?

Section 70 of the Arbitration and Conciliation Act, 1996, provides provision of disclosure of information. According to Section 70 of the Act, when the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate: Provided that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party.

Thus mediator is bound to keep confidentiality of all the matters in the conciliation proceedings. Hence Court cannot issue summons to the mediator.

Q78. Define International Commercial Arbitration

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

Q79. What do you mean by Settlement award State the Relevant Section?

Section 30 of the Act provides for settlement after invocation of arbitration clause. Consent Awards are settlement agreements recorded between the parties after the parties have invoked arbitration to settle disputes. The consent award is different from a normal arbitration award as the dispute is not considered on the merits, but reflects the mutually agreed settlement terms of the parties. Settlement of disputes through consent awards ensures that the disputes end in amicable terms leaving each party satisfied. The consent award will have the same status and effect as arbitral award provided on merits. The consent award, including form and contents, is similar, to any other arbitral award and has same effect of any other arbitral award. Termination of arbitral proceedings does not necessarily result in consent award. The parties may prefer not to obtain approval from the tribunal and can settle the dispute by entering into an agreement under Section 73 of the Arbitration and Conciliation act, 1996.

Q80. A Clause is provided in a works contract to the effect that “For any dispute between the Contractor and the Department, the decision of the Chief Engineer, PWD will be final and binding upon the Contractor only” Can it be held to be an Arbitration Agreement support your answer with Sections and Case Laws?

No, the clause cannot be called as arbitration agreement. The clause is “For any dispute between the Contractor and the Department, the decision of the Chief Engineer, PWD will be final and binding upon the Contractor only”. Arbitration agreement implies the decision of the arbitrator is binding on both the parties. Here it is binding only one party. It looks like administrative arrangement and not an arbitration agreement.

There is no particular form of arbitration agreement. According to Section 7(1) of the Arbitration and Conciliation Act, 1996, the “Arbitration Agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

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Alternate Dispute Resolution Questions 41 to 60 (3 Marks)

Hemant More — Mon, 09 May 2022 11:10:58 +0000

Law > Civil Laws > Alternate Dispute Resolution > Concept of ADR

41. In which matter part I, II and IV of arbitration and conciliation act 1996 extended to Jammu and Kashmir?

According to Section 1(2) of the Arbitration and Conciliation act, 1996, parts I, III and IV shall extend to the State of Jammu and Kashmir only in so far as they relate to international commercial arbitration or, as the case may be, international commercial conciliation.

This provision is now omitted by the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, vide notification No. S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O. 3774(E), dated (23-10-2020). Now this Act extends to the whole of India.

Q42. Explain the term “award conflict with public policy”.

Provisions of Section 34 (2) (b) (ii), for setting aside of an arbitral award, of the Arbitration and Conciliation Act, 1996 clarifies that an arbitral award may be set aside by the court only if the court finds that the arbitral award is in conflict with the public policy of India.

Explanation 1 (i) given therein clarifies that an award is in conflict with the public policy of India, only if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 91 of the Act.

Explanation 1 (ii) states that an award is in conflict with the public policy of India, only if it is in contravention of the fundamental policy of Indian law.

Explanation 1 (iii) states that an award is in conflict with the public policy of India, only if it is in conflict with the most basic notions of morality and justice.

Provisions of Section 48 (2)(b), on conditions for enforcement of foreign awards, also contains a similar clarification with regard to the public policy of India, though there exists a small difference between the two.

Q43. Within how many days the two appointed arbitrators shall appoint a presiding arbitrator?

Section 11(4)(b) of the Act, provides that if the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. Thus the two arbitrators must appoint presiding arbitrator within thirty days from the date of their appointment

Q44. Explain the maxim “Nemo Judex in Causa Sua”.

This principle “Nemo debet esse judex in propria causa” of natural justice is also known as the Rule of Bias or the Doctrine of Bias. The first principle of impartiality roughly translated into English means nobody shall be a judge in his own cause or in a cause in which he is interested. That is the authority sitting in judgment should be impartial and act without bias.

The maxim ” Nemo debet esse judex in propria causa” is based on three well-known principles:

No man can be judge and the prosecutor at the same time.
It is not enough that justice is done; it is also necessary that it must be seen to be done.
Judges, like Caesar’s wife, should always be above suspicion.

In R v. Bath Compensation Authority, (1925) 1 KB 635 case, the Court observed: “the object is not merely that the scales be held evenly; it is also necessary that they may not appear to be inclined”.

Q45. Can award be given according to agreed terms of settlement?

Q46. Within how many days an arbitral tribunal is empowered to make corrections in award on its own initiative.

Section 33 of the Arbitration & Conciliation Act talks about the correction of an arbitral award after having been pronounced. In cases where any of the parties require correction of clerical mistakes, typographical errors, or such other mistakes; or seek an interpretation from an issue of the award, they are allowed to do so. They may approach the arbitral tribunal to seek clarification and corrections on the above-mentioned points.

If the parties do not recognize the clerical errors but the tribunal themselves do, then they can suo moto correct the award for the same. The arbitral tribunal, within thirty days, can correct the clerical errors by themselves and send fresh copies of the award, highlighting the corrected portions, to the parties. However, the tribunal does not have the authority to provide interpretation or issue an additional award, by themselves.

Q47. When should the award be considered as the final award?

Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. The decision given by the arbitral tribunal is called an arbitration award.

An award by an arbitral tribunal is final when:

The Period that is provided to make an appeal challenging the award in the court expires;
And in circumstances when a party has filed an application in the court challenging the award and the same gets rejected.

The final award is an award which is complete on all matters of dispute referred to arbitration. This should usually be in writing and signed by all the arbitrators. The award must contain reasons and state where the arbitration took place. It must also be dated (this is important for calculating interest on payments). Once the final award is made it ends proceedings.

Q48. Can a conciliator be presented as a witness in the court?

Thus, mediator is bound to keep confidentiality of all the matters in the conciliation proceedings. Hence, he cannot be presented as a witness in the court.

Q49. State the number of conciliators can be appointed by the parties?

Q50. What is the object of Lok Adalat?

Q51. What does Arbitration agreement mean?

A valid arbitration agreement is the founding stone of the arbitration procedure. It is a written agreement between the parties to submit their existing or future disputes or differences to arbitration. The jurisdiction of the arbitral tribunal emanates from the agreement between the parties. By agreeing to arbitration, the parties voluntarily opt-out of the right to have their disputes settled through adjudication by a civil court. It is to be noted that the underlying agreement or contract creates a relationship of obligation between the parties, the arbitration agreement solely addresses the settlement of disputes between the parties.

According to Section 7(1) of the Arbitration and Conciliation act, 1996, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. According to Section 7(2) of the Act an arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Q52. What is the status of an arbitral award in the judicial process?

Q53. What is an arbitrable dispute?

Arbitrability indicates whether a dispute is “arbitrable”, i.e., capable of being settled by arbitration. Generally, all disputes involving private rights (disputes about property or money, or about the amount of damages payable for breach of contract etc.) and which can be decided by a civil court, can be referred to arbitration. However, according to the general practice, following matters are not referred to arbitration. It is to be noted that the list is not exhaustive. Any matter involving morality, status and public policy cannot be referred to arbitration.

Before proceeding with the arbitration, every arbitral tribunal is obliged to look into the arbitration agreement. Arbitral tribunal considers whether dispute is arbitrable according to the national public policy of the seat of arbitration as they affect tribunal’s jurisdiction with respect to the dispute. National public policy varies considerably from one jurisdiction to the other based on the socio-economic structure of the society.

Q54. What is the nationality of an arbitrator?

Chapter III of the Arbitration and Conciliation Act, 1996 lays down the arrangements for the Composition of an Arbitral Tribunal. According to Section 11(2) of the Arbitration and Conciliation Act, 1996, the parties are free to agree on the procedure of appointment of the arbitrator or arbitrators.

Section 11(1) of the Arbitration and Conciliation Act, 1996, a person of any nationality may be an arbitrator unless otherwise agreed by the parties.

Q55. What is de jure and de facto impossibility to act for an arbitrator?

Q56. Which is a place of arbitration?

Chapter III of the Arbitration and Conciliation Act, 1996 lays down the arrangements for the Composition of an Arbitral Tribunal. Section 20 of the Arbitration and Conciliation act, 1996, deals with the place of arbitration. According to Section 20 of the Act, the parties are free to agree on the place of arbitration. Failing any agreement referred to in sub-section 20(1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. Notwithstanding sub-section 20(1) or sub-section 20(2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

Q57. What is consent award?

Q58. State the expenses included in the cost of arbitration?

Section 31(8) of the Arbitration and Conciliation Act, 1996, deals with the cost of arbitration. The costs of arbitration include arbitrator’s fee, administrative and secretarial expense, expenses on travel of arbitrator and others concerned, stenographic, translation and interpretation charges, stamp duty on award, expenses of witnesses, cost of legal or technical advice and other incidental expenses arising out of or in connection with the arbitration proceeding or award.

Under Section 31(8) of the Arbitration and Conciliation Act, 1996, unless otherwise agreed by the parties, the cost of an Arbitrator shall be fixed by the Arbitral Tribunal. The tribunal shall specify:

the party entitled to costs;
the party who shall pay the costs;
the amount of costs or method of determining that amount; and
the manner in which the costs shall be paid.

Q59. What is Lok Adalat?

The word “Lok Adalat” means ‘People’s Court. The Legal Services Authority Act makes provisions in relation to the establishment, powers and functions etc. of the Lok Adalat. Lok Adalat is one of the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably. Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987. Under the said Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law.

Q60. What is conciliation?

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Alternate Dispute Resolution Questions 21 to 40 (3 Marks)

Hemant More — Mon, 09 May 2022 04:20:13 +0000

Law > Civil Laws > Alternate Dispute Resolution > Concept of ADR

Q21. Analyze any three differences between arbitration and conciliation

Arbitration	Conciliation
Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute.	Conciliation is a process of persuading parties to reach settlement in existing and ongoing conflict with the help of third impartial party called conciliator with the to preserve the relationship they have with each other.
The third impartial party is called arbitrator.	The third impartial party is called conciliator
An arbitrator has the power to enforce his decision.	A conciliator do not have the power to enforce his decision.
Pre-agreement is required for starting arbitration process.	There is no need of pre-agreement for starting the process of conciliation but acceptance to the process by both parties is necessary.
Arbitration is available for existing and future disputes.	Conciliation is available only for the existing disputes.
Sections 1 – 61 of the Arbitration and Conciliation Act, 1996 deals with the process of arbitration.	Sections 62 – 81 of the Arbitration and Conciliation Act, 1996 deals with the process of conciliation.
The ultimate decision to agree on the settlement remains with the parties.he parties are bound by the decision of the arbitrator.	The ultimate decision to agree on the settlement remains with the parties.

Q22. Importance of Lok Adalat.

The word “Lok Adalat” means ‘People’s Court. The Legal Services Authority Act makes provisions in relation to the establishment, powers and functions etc. of the Lok Adalat. The Preamble of the Act makes it clear that the it has been connected to constitutes the Legal Services Authorities to provide free and Competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and organise Lok Adalats to secure that operation of the legal system promotes Justice on a basis of equal opportunity.

Q23. Mr. Ram filed a suit in court against Mr. Shyam but the court has referred it to Lok Adalat. However, Mr. Ram doesn’t want to settle it in Lok Adalat.

Can court compel parties to a case to go for settlement in Lok Adalat?
Can Mr. Ram challenge the decision of the Court about reference to Lok Adalat? Why?
What is the procedure for settlement of dispute outside the court?

According to Section 20 of the Legal Services Authority Act, 1987, if the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat. Thus. the court can refer the matter to Lok Adalat.
Yes, Mr. Ram can challenge the decision of the Court about reference to Lok Adalat. The Supreme Court has held in many cases that if there is no agreement, the Lok Adalat award is not effective and even if the parties do not agree to settle the conflict through Lok Adalat, the normal litigation process remains open to the contesting parties.
The procedure for settlement of dispute outside the court is known as Alternate Dispute Resolution (ADR). Parties to the dispute must agree to settle their dispute outside the court by making an application before the court. Parties must file their motion for dismissal of the suit pending before the court. Such application must be signed by the parties to the dispute.

Q24.What do you mean by Foreign Award under New York Convention Awards.?

Q25. The Role of Court in appointment of Arbitrator.

Section 11 of the Arbitration and Conciliation Act, 1996 deals with the appointment of arbitrators. The parties are free to agree on a procedure for appointment of arbitrator or arbitrators. Section 11 only confers power on the High Court to appoint an arbitrator or presiding arbitrator only when the following conditions are fulfilled:

where there is a valid arbitration agreement;
the agreement contains for the appointment of one or more arbitrators;
the appointment of the arbitrator is to be made by mutual consent of all the parties to the dispute.
differences have arisen between the parties to the arbitration agreement; or between the appointed arbitrators;
the differences are on the appointment or appointments of arbitrators.

Q26. Commencement of Conciliation proceedings.

Section 62 of the Arbitration and Conciliation Act, 1996 provides for the commencement of proceedings for conciliation. For the purpose of settling the dispute through the process of conciliation all what is required is a proposal in writing and its acceptance thereof. When a proposal is made by one party the other party has the option of the acceptance of proposal or its rejection. Rejection does not always have to be expressed it may be implied. If the party who sends the proposal does not receive any follow up or reply within a period of thirty days or other stipulated period it shall amounts to rejection and hence the process of conciliation will not commence. Thus conciliation procedure shall commence when the other paty accepts in writing the invitation to conciliate.

Q27. Mr. Suhas was appointed as a conciliator by parties. After few meetings with the parties, Mr. Suhas draws up a settlement agreement and signs

Can such agreement be recognized as a settlement agreement? Why?
When does a settlement agreement have binding effects?

According to Section 73(1) of the Arbitration and Conciliation Act, 1996, when it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations. In this case it is mentioned that after few meetings with the parties, Mr. Suhas draws up a settlement agreement and signs. Involvement of parties is not mentioned. Thus, the agreement drawn by Suhas cannot be considered as settlement agreement.
Parties have the option of either drawing up the terms settlement agreement by themselves or take the assistance of conciliator and at last the agreement is signed by both the parties and authenticated by the conciliator. Such agreement reached is called settlement agreement or conciliation agreement. According to Section 73(3) of the Arbitration and Conciliation Act, 1996, when settlement agreement is signed by both the parties then it is binding on both the parties. As per section 74 of The Arbitration and Conciliation Act, 1996 settlement agreement drawn under section 73 is kept in par with arbitral award in the arbitration proceedings under section 30 of The Arbitration and Conciliation Act, 1996 and it is binding like arbitral award.

Q28. Can a couple appoint an Arbitrator on a wife’s application for divorce? Give reason for your answer.

No, the couple cannot appoint an Arbitrator on a wife’s application for divorce. Generally, all disputes involving private rights (disputes about property or money, or about the amount of damages payable for breach of contract etc.) and which can be decided by a civil court, can be referred to arbitration. However, according to the general practice,matrimonial matters, like divorce or conjugal rights, etc. cannot be resolved through arbitration.

Q29. Lien on Arbitral Award

Q30. Time limit for Arbitral award.

Therefore, this Section provides a total period of 12+6 months i.e. 18 months, for the completion of the arbitral proceedings and to pass an award. If the arbitrator fails to pass an award within this stipulated time frame, then his mandate shall be terminated, unless this period is further extended by the grant of a competent court.

Q31. As the dispute arises Mr. B requests Mr. A for an appointment of an arbitrator, but an arbitration agreement fails to make provision for the number of arbitrators.

How many numbers of arbitrators can be presumed in above case?
State remedy to B, if Mr A fails to appoint an arbitrator.
If Mr. A and Mr. B agrees to appoint 3 arbitrators but fails to agree on procedure for appointing the arbitrator. Advice Mr. A and B.

Arbitration agreement is there, means arbitration must take place. There is no mention of number of arbitrators. Section 10(1) of the Arbitration and Conciliation Act, 1996 gives provision for the number of arbitrators in the arbitration tribunal. The parties to the dispute are allowed to mutually choose the number of arbitrators that shall establish the arbitral tribunal to adjudicate the dispute. It is, in any case, necessary that the number of arbitrators appointed shall be an odd number and not an even. This provision guarantees that there are no ties. In this case one or three arbitrators can be appointed.

According to Section 10(2) of the Arbitration and Conciliation Act, 1996, if the parties to the dispute are unable to choose the number of arbitrators, in that case, just a single arbitrator shall be appointed.
If A fails to appoint an arbitrator, then according to Section 11(5) of the Arbitration and Conciliation act, 1996, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
Mr. A and Mr. B may request the Chief Justice or any person of institution designated by party to do the necessary measures, unless the agreement on the appointment procedure provides other means for securing appointment.

Q32. An arbitration agreement was existed between Mr. X and Mr. Y for some dispute. After having a dispute Mr. Y without informing to Mr. X submit the dispute to an arbitrator.

Can Mr. Y do so? Advice Mr. X.
What will be the effect on arbitration procedure if Mr. X fails to communicate his statement of defence to an arbitrator?
An Arbitrator without giving sufficient notice to Mr. X declares an ex-parte award. Advice Mr. X.

No, Mr. Y cannot submit dispute to arbitrator without informing X. In case of a dispute between the parties arise, the aggrieved party will send a notice to the defaulting party for initiating the procedure of arbitration known as arbitration notice. In this case Mr. Y is not informing Mr X i.e., he is not sending arbitration notice. Thus, Mr X can challenge the appointment of arbitrator.
There is no fair hearing in front of arbitrator because Mr. X is not informed and he cannot communicate with the arbitrator. Mr. X is not allowed to submit his statement in his defence.
Mr. X can appeal against the ex-parte award as he was not informed by Mr. Y about the arbitration procedure and thus the award is violation of the principles of natural justice. The arbitrator cannot be said to be independent and impartial. Such award can be set aside.

Q33. Parties in a dispute willing to appoint a conciliator for settlement of dispute. But they have some queries. advise them.

Who is conciliator?
What is settlement agreement?
What is judicial status of settlement agreement?

Conciliator is a third impartial party appointed by disputing parties to reach settlement in existing and ongoing conflict to preserve the relationship they have with each other.
When the conciliator sees the possibility of settlement of dispute, the settlement process takes place under section 73 of The Arbitration and Conciliation Act, 1996. Parties have the option of either drawing up the terms settlement agreement by themselves or take the assistance of conciliator. Such agreement reached is called settlement agreement or conciliation agreement.
Parties have the option of either drawing up the terms settlement agreement by themselves or take the assistance of conciliator and at last the agreement is signed by both the parties and authenticated by the conciliator. When it is signed it is binding on both the parties. Such agreement reached is called settlement agreement or conciliation agreement. As per section 74 of The Arbitration and Conciliation Act, 1996, settlement agreement drawn under section 73 is kept in par with arbitral award in the arbitration proceedings under section 30 of The Arbitration and Conciliation Act, 1996 and it is binding like arbitral award.

Q34. The Arbitration agreement was entered into on 8th November, 1995. Thereafter due to dispute one party addressed a letter, to other requesting to refer the matter for Arbitration, which was received by other party on 19th January, 1996. Thereafter Arbitrator was appointed on 3rd February, 1996 who commenced the arbitration 4th March, 1996. Explain in detail as to which Act will govern these proceedings.

According to Section 21 of the Act, unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. According to Section 3 of the Act, any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address.

In this case parties are agreeing. Arbitrator was appointed on 3rd February, 1996 who commenced the arbitration 4th March, 1996.Thus, the Arbitration and Conciliation Act, 1996 is applicable.

Q35. A mediator in the process of mediation, has received a document. Which Mr. P, a party to mediation, was not aware, which will help him to prove his case. After the mediation failed, Mr. P applied the Court to issue summons to the Mediator to produce the said document before the Court. Can the Court issue the summons as applied? Substantiate your answer with reason.

Thus mediator is bound to keep confidentiality of all the matters in the conciliation proceedings. Hence Court cannot issue summons to the mediator.

Q36. One party in the Arbitration desire to examine the Rationing Officer and the Engineer of the Municipal Corporation. Therefore, has made application before the Arbitrator. Can the arbitrator require them to come and give evidence? Explain the procedure in that behalf.

Yes, The party can make application for such examination to arbitrator. Section 27 of the Arbitration and Conciliation Act, 1986 provides for court assistance in taking evidence.

According to Section 27(1) of the Act, the arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.

Section 27(2) of the Act, gives procedure to be followed to call them for examination.

According to Section 27(2) of the Act, the application shall specify –

(a) the names and addresses of the parties and the arbitrators;

(b) the general nature of the claim and the relief sought;

(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required;

(ii) the description of any document to be produced or property to be inspected.

According to Section 27(3) of the Act, the Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.

Q37. The dispute arose between the parties as regards to the venue of the arbitration under the Arbitration Agreement. The Decision is to be given by the Joint Arbitration committee on such issue. The question before the court was whether such a decision is appellable –

Do you think that such a decision is appellable?
The decision given by the Joint Arbitration Committee be considered as an Interim Award is award? Explain

This decision is not appellable. Section 34 of the Arbitration and Conciliation Act 1996 deals with the setting aside of the arbitral award. In order to set aside an arbitral award, individual needs to file an application in court. The court in general accepts an application of challenge only if it comes under the ambit of Sec. 34 only.

The following are the grounds on which an award can be set aside:

Incapacity of a party.
Unlawful agreement.
No notice to the other party.
Subject matter extent to the scope of the arbitration agreement.
Formation of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.

This list doesn’t contain dispute on place of arbitration.

2. It is not interim award. Section 20 of the Arbitration and Conciliation act, 1996, deals with the place of arbitration. According to Section 20 of the Act, the parties are free to agree on the place of arbitration. Failing any agreement referred to in sub-section 20(1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. Notwithstanding sub-section 20(1) or sub-section 20(2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property. Thus it is a statutory provision and not interim award.

Q38. The Arbitration agreement was rendered on 8th November, 1995 thereafter due to dispute one party addressed the letter to the other requesting to refer the matter to arbitration which was received by the other parties on 19th January 1996. Thereafter arbitrator was appointed on 3rd February, 1996 to commence the arbitration on 4th March, 1996. Explain in details as to which is govern these proceedings.

In this case parties are agreeing. Arbitrator was appointed on 3rd February, 1996 who commenced the arbitration 4th March, 1996.Thus, the Arbitration and Conciliation Act, 1996 is applicable.

Q39. Mr. Prabhu’s name was mentioned as an arbitrator in the arbitration agreement between the parties. After having an dispute parties appointed Mr. Arun as an arbitrator. After few months Mr. Arun shows his unwillingness to work so both parties appointed Mr. Shulka as an arbitrator.

Can Mr. Prabhu takes any action against parties? Why?
Can Mr. Arun submit his resignation during arbitration
Whether Mr. Shulka has to work from initial stage of arbitration?

No, Mr. Prabhu cannot take action against the parties. If the procedure of appointment of arbitrators is not agreed upon under the Section 11(2), and the arbitration is with the Sole Arbitrator, then one party to arbitration agreement makes a request to the other party to the arbitration agreement, to agree upon the appointment of Sole Arbitrator, then parties must agree within a period of 30 days from the date of receipt of the request.
Yes, Mr. Arun can submit his resignation. He can do it with the provisions of Section 14 of the Arbitration and Conciliation Act, 1996.
Mr. Shukla can be substituted as arbitrator under provisions of Section 15(2) of ththe Act. He may, at the discretion of the arbitral tribunal, start with a new procedure or may repeat any hearing previously held by Mr.Arun.

40. Mr Z appointed as an arbitrator by Mr C and Mr. D for the settlement of dispute. Mr. Z has some personal relations with Mr C an award was declared by Mr Z on the basis of some personal information which he get it from Mr.C.

Can Mr. Z declare an award on the basis of personal information?
Whether there is any breach of duty from Mr. Z?
What are remedies available to Mr. D?

No, Mr. Z cannot declare an award on the basis of personal information. Arbitrator must be independent and impartial. He should give chance to Mr. D to present his statement in response.
Yes, there is a breach of duty from Mr. Z. Under Section 12(1), a duty is imposed on the person who is to be appointed as an arbitrator, to disclose in writing existence of circumstances which may raise justifiable doubts against his independency and impartiality.
He can challenge arbitrator. Under Section 12(3) of the Arbitration and Conciliation Act, 1996, if circumstances exist that give rise to justifiable doubts as to his independence or impartiality, the party can challenge arbitrator. The procedure of challenge is given in Section 13 of the Act. Under Section 13(2) of the Act, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.

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The post Alternate Dispute Resolution Questions 21 to 40 (3 Marks) appeared first on The Fact Factor.

Alternate Dispute Resolution Questions 1 to 20 (3 Marks)

Hemant More — Sat, 07 May 2022 13:13:28 +0000

Law > Civil Laws > Alternate Dispute Resolution > Concept of ADR

Q1. State Salient features of Arbitration and Conciliation Act, 1996.

Following are some of the key features of the Arbitration and Conciliation Act, 1996 (Write only Three):

Replacement of three old statutes: The Act is a consolidation of three laws of arbitration previously in force – viz, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937, and the Foreign Awards (Recognition and Enforcement) Act, 1961 into one enactment. Though the three Acts have been consolidated the provisions regarding each of the acts have been kept distinct within the 1996 Act.
Necessity of Arbitration Agreement: The Act emphasizes the importance of the Arbitration agreement without which arbitration proceedings cannot be instituted. The arbitration agreement is a clause in a contract or an agreement between parties stating that any dispute will be referred to arbitration proceedings. The Act mentions that the arbitration agreement or arbitration clause must contain the following information – the subject matter of dispute, the timing of dispute (past/present/future), number of arbitrators, qualifications of arbitrators, jurisdiction, and composition of the tribunal.
Application to Domestic and International Arbitration: The Act provides the procedure not only for domestic arbitration but also includes International Commercial Arbitration. The 1996 Act is a law that relates to the enforcement of foreign Arbitration awards and ensures greater autonomy in the process of arbitration and puts a limit on the intervention of the judiciary.
Procedural Advantage: Arbitral Tribunal has full powers to decide the procedure to be followed unless parties agree on the procedure to be followed. The Tribunal also has powers to determine the admissibility, relevance, materiality, and weight of any evidence. The place of arbitration will be decided by mutual agreement. However, if the parties do not agree to the place, the same will be decided by a tribunal. Similarly, language to be used in arbitral proceedings can be mutually agreed upon. Otherwise, Arbitral Tribunal can decide. The Act allows parties to choose the substantive law to be applied by the arbitration tribunal and this must also be mentioned in the arbitration agreement.
Party Autonomy: The concept of party autonomy is the central theme of the Act. The expressions used in the Act – ‘unless otherwise agreed by the parties’, ‘with the agreement of parties’, `if the parties in dispute have expressly authorized’ etc., strengthens the idea of party autonomy.
Minimal Interference by Judiciary: One of the major defects of earlier arbitration law was that the party could access court almost at every stage of arbitration – right from the appointment of an arbitrator to implementation of the final award. Thus, the defending party could approach the court at various stages and stall the proceedings. Now, the approach to court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral Award is made.
Arbitral Award: Decision of Arbitral Tribunal is termed as ‘Arbitral Award’. The arbitrator can decide the dispute ex aequo et bono (In justice and in good faith) if both the parties expressly authorized him to do so. The decision of the Arbitral Tribunal will be by majority. The arbitral award shall be in writing and signed by the members of the tribunal. The award should be dated and the place, where it is made, should be mentioned. Copy of award should be given to each party.
Reasoned Award: The award must be in writing and signed by the members of the Arbitral Tribunal. It must state the reasons for the award unless the parties have agreed that no reason for the award is to be given. Previous to this Act reasoning of the award by the arbitrator was not mandatory.
Enforceability of Award: Under this Act, every final arbitral award is enforceable as a decree of the court of law and not required to be made a “rule of court”.
Over-Riding Effect of the Act: Section 5 of the Act clarifies that notwithstanding anything contained in any other law for the time being in force, in matters governed by the Act, the judicial authority can intervene only as provided in this Act and not under any other Act.
Applicability of the Limitation Act: For this purpose, the date on which the aggrieved party requests another party to refer the matter to arbitration shall be considered. If on that date, the claim is barred under Limitation Act, the arbitration cannot continue. If the Arbitration award is set aside by Court, time spent in arbitration will be excluded for purpose of the Limitation Act.
Aligning Procedure with the UNCITRAL Model Law: The Act has been enacted taking into account the United Nation’s Commission on International Trade Law (UNCITRAL) Model Law and UNCITRAL Conciliation Rules. This promotes unification and harmonization of International Tarde Law by harmonizing concepts of Arbitration and Conciliation of the legal system of the world.
Clear Distinction Between Arbitration and Conciliation: The provisions that relate to the process of Arbitration are contained in Part I which includes Chapters I to IX, while the provisions that relate to the process of Conciliation are dealt with in Part III that includes section 61 to 81.
Conciliation: Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator. Part III of the Act makes provision for conciliation proceedings. In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is an arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give an award. He only helps parties in arriving at a mutually acceptable settlement. After such an agreement, they may draw and sign a written settlement agreement. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award.

Q2. State any three differences between Arbitration & Conciliation Act

Arbitration	Conciliation
Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute.	Conciliation is a process of persuading parties to reach settlement in existing and ongoing conflict with the help of third impartial party called conciliator with the to preserve the relationship they have with each other.
The third impartial party is called arbitrator.	The third impartial party is called conciliator
An arbitrator has the power to enforce his decision.	A conciliator do not have the power to enforce his decision.
Pre-agreement is required for starting arbitration process.	There is no need of pre-agreement for starting the process of conciliation but acceptance to the process by both parties is necessary.
Arbitration is available for existing and future disputes.	Conciliation is available only for the existing disputes.
Sections 1 – 61 of the Arbitration and Conciliation Act, 1996 deals with the process of arbitration.	Sections 62 – 81 of the Arbitration and Conciliation Act, 1996 deals with the process of conciliation.
The ultimate decision to agree on the settlement remains with the parties.he parties are bound by the decision of the arbitrator.	The ultimate decision to agree on the settlement remains with the parties.

Q3. What does Arbitration agreement mean?

According to Section 7(1) of the Arbitration and Conciliation Act, 1996, the “Arbitration Agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arisen between them in respect of a defined legal relationship, whether contractual or not. Thus, the existence of a dispute is a pre-requisite to invoke arbitration and such a dispute must be covered by the arbitration clause to enable arbitrator to assume jurisdiction. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Q4. What is settlement agreement?

Q5. What is status of award of Lok-Adalat?

The word “Lok Adalat” means ‘People’s Court. The Legal Services Authority Act makes provisions in relation to the establishment, powers and functions etc. of the Lok Adalat. The object of establishment of Lok Adalat is to settle the disputes quickly by counselling and discussions, etc. Its basis is to provide quick justice with the mutual and free consent of the parties.

Q6. Write short note on New York Convention.

Two pre-requisites for enforcement of foreign awards under the New York Convention. These are:

The country must be a signatory to the New York Convention.
The award shall be made in the territory of another contracting state which is a reciprocating territory and notified as such by the Central Government.

Q7. When award can be set aside?

Grounds of Setting Aside of Arbitration Award:

The following are the grounds on which an award can be set aside:

Incapacity of a party.
Unlawful agreement.
No notice to the other party.
Subject matter extent to the scope of the arbitration agreement.
Formation of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.

Q8. What is Geneva convention? Write important provisions.

the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;
the subject-matter of the award is capable of settlement by arbitration under the law of India;
the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;
the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;
the enforcement of the award is not contrary to the public policy or the law of India.

Q9. Write short note on Arbitrator.

Chapter III of the Arbitration and Conciliation Act, 1996 lays down the arrangements for the Composition of an Arbitral Tribunal. The arbitrator must have requisite qualifications and none of the disqualifications prescribed in the arbitration agreement.

Section 11(1) of the Arbitration and Conciliation Act, 1996, a person of any nationality may be an arbitrator unless otherwise agreed by the parties. According to Section 11(2) of the Arbitration and Conciliation Act, 1996, if parties fail to appoint arbitrator as specified in Section 10 clause 2, then each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.

Q10. How Conciliator is appointed?

According to section 80 of the Act, a conciliator should not be an arbitrator or a representative of the parties in any kind of legal proceedings in respect to a matter that is subject of the dispute. He/she also cannot be presented as a witness for/against the parties in any arbitral or judicial proceeding.

Q11. Explain any three salient features of the Arbitration and Conciliation Act,1996.

Following are some of the key features of the Arbitration and Conciliation Act, 1996 (Write only Three):

Replacement of three old statutes: The Act is a consolidation of three laws of arbitration previously in force – viz, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937, and the Foreign Awards (Recognition and Enforcement) Act, 1961 into one enactment. Though the three Acts have been consolidated the provisions regarding each of the acts have been kept distinct within the 1996 Act.
Necessity of Arbitration Agreement: The Act emphasizes the importance of the Arbitration agreement without which arbitration proceedings cannot be instituted. The arbitration agreement is a clause in a contract or an agreement between parties stating that any dispute will be referred to arbitration proceedings. The Act mentions that the arbitration agreement or arbitration clause must contain the following information – the subject matter of dispute, the timing of dispute (past/present/future), number of arbitrators, qualifications of arbitrators, jurisdiction, and composition of the tribunal.
Application to Domestic and International Arbitration: The Act provides the procedure not only for domestic arbitration but also includes International Commercial Arbitration. The 1996 Act is a law that relates to the enforcement of foreign Arbitration awards and ensures greater autonomy in the process of arbitration and puts a limit on the intervention of the judiciary.
Procedural Advantage: Arbitral Tribunal has full powers to decide the procedure to be followed unless parties agree on the procedure to be followed. The Tribunal also has powers to determine the admissibility, relevance, materiality, and weight of any evidence. The place of arbitration will be decided by mutual agreement. However, if the parties do not agree to the place, the same will be decided by a tribunal. Similarly, language to be used in arbitral proceedings can be mutually agreed upon. Otherwise, Arbitral Tribunal can decide. The Act allows parties to choose the substantive law to be applied by the arbitration tribunal and this must also be mentioned in the arbitration agreement.
Party Autonomy: The concept of party autonomy is the central theme of the Act. The expressions used in the Act – ‘unless otherwise agreed by the parties’, ‘with the agreement of parties’, `if the parties in dispute have expressly authorized’ etc., strengthens the idea of party autonomy.
Minimal Interference by Judiciary: One of the major defects of earlier arbitration law was that the party could access court almost at every stage of arbitration – right from the appointment of an arbitrator to implementation of the final award. Thus, the defending party could approach the court at various stages and stall the proceedings. Now, the approach to court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral Award is made.
Arbitral Award: Decision of Arbitral Tribunal is termed as ‘Arbitral Award’. The arbitrator can decide the dispute ex aequo et bono (In justice and in good faith) if both the parties expressly authorized him to do so. The decision of the Arbitral Tribunal will be by majority. The arbitral award shall be in writing and signed by the members of the tribunal. The award should be dated and the place, where it is made, should be mentioned. Copy of award should be given to each party.
Reasoned Award: The award must be in writing and signed by the members of the Arbitral Tribunal. It must state the reasons for the award unless the parties have agreed that no reason for the award is to be given. Previous to this Act reasoning of the award by the arbitrator was not mandatory.
Enforceability of Award: Under this Act, every final arbitral award is enforceable as a decree of the court of law and not required to be made a “rule of court”.
Over-Riding Effect of the Act: Section 5 of the Act clarifies that notwithstanding anything contained in any other law for the time being in force, in matters governed by the Act, the judicial authority can intervene only as provided in this Act and not under any other Act.
Applicability of the Limitation Act: For this purpose, the date on which the aggrieved party requests another party to refer the matter to arbitration shall be considered. If on that date, the claim is barred under Limitation Act, the arbitration cannot continue. If the Arbitration award is set aside by Court, time spent in arbitration will be excluded for purpose of the Limitation Act.
Aligning Procedure with the UNCITRAL Model Law: The Act has been enacted taking into account the United Nation’s Commission on International Trade Law (UNCITRAL) Model Law and UNCITRAL Conciliation Rules. This promotes unification and harmonization of International Tarde Law by harmonizing concepts of Arbitration and Conciliation of the legal system of the world.
Clear Distinction Between Arbitration and Conciliation: The provisions that relate to the process of Arbitration are contained in Part I which includes Chapters I to IX, while the provisions that relate to the process of Conciliation are dealt with in Part III that includes section 61 to 81.
Conciliation: Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator. Part III of the Act makes provision for conciliation proceedings. In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is an arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give an award. He only helps parties in arriving at a mutually acceptable settlement. After such an agreement, they may draw and sign a written settlement agreement. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award.

Q12. Explain the role of the Conciliator.

According to section 67 of the Arbitration and Conciliation Act, 196.

the conciliator shall maintain his independence and impartiality and persuade the parties in away to help them reach an amicable settlement.
the conciliator should not only uphold the principles of objectivity, fairness and justice but should also keep in mind the rights and obligations of the parties and various circumstances surrounding the dispute.
the conciliator may conduct the proceedings of the case in a manner that is appropriate in his opinion. However, he should consider the circumstances leading to the case and the wishes of the parties or any other requests of the parties that are related to the subject of the dispute and are reasonable in the eyes of the law.
a settlement of the dispute can be proposed by the conciliator at any time when the proceedings are still in force. Any such settlement proposition need not be in writing or accompanied by a statement of reasons, necessarily.

Q13. Explain types of Arbitrations.

Different kinds of arbitrations are as follows:

Domestic Arbitration: It is that type of arbitration, which happens in India, wherein both parties must be Indians and the conflict has to be decided in accordance with the substantive law of India.
International Arbitration: When arbitration happens within India or outside India containing elements which are foreign in origin in relation to the parties or the subject of the dispute, and the dispute is decided in accordance with substantive law in India or any other country, then it is called as International Arbitration.
Institutional Arbitration: When an arbitral Institution conducts arbitration in accordance with the prescribed rules of such institution, it is called Institutional Arbitration.
Ad-hoc Arbitration: If the parties agree among themselves and arrange for arbitration, it is called Ad-hoc Arbitration without having an institutional proceeding. It can either be domestic, international or foreign arbitration.
Statutory Arbitration: It is mandatory arbitration, which is imposed on parties by the operation of law. There are many central and State Acts which makes arbitration mandatory.
Fast Track Arbitration: It is a time bound arbitration, with strict rules of procedure, which do not allow for any laxity or scope for extensions of time and delays.

Q14. Explain the role of Mediator.

The role played by the mediator is a key ingredient in the qualitative success of mediation.

The mediator is a facilitator and not a decision-maker. Unlike the Judge in a traditional Court setting or for that matter even an arbitrator; the mediator is neither a trier of fact nor an arbiter of disputes.
He should provide structure, focus, and assistance with communication to the parties in dispute. The role of the mediator is to create an environment in which parties before him are facilitated towards resolving the dispute in a purely voluntary settlement or agreement.
He should provide unbiased, impartial assistance and should not have any interest in the dispute. As a neutral, the function of the mediator is to enable the parties to arrive at a mutual and voluntary agreement.
He has to open up communication between the parties and between the parties and himself.
He has to enable the parties to understand their own interests and to understand the interests of the disputing party.
He must enable parties to distinguish between their positions and interests and to appreciate and evaluate their own interests and those of each other.
He has to ensure that through the mediation dialogue parties arrive at a solution which is in their best interest.
He has to control the process of negotiation.

Q15. What do you mean by Arbitral Award?

Essentials of Arbitration Award:

The award must be in writing. (Section 31(1))
It must be signed by all or majority members of the arbitral tribunal. Reasons for the non-signing of defaulting members should be mentioned in the award. (Section 31(2))
It must reasonable, legal and possible. (Section 31(3))
It must have a date and place of arbitration (Section 31(4))
It must talk about the cost of the arbitration (Section 31(5))
It must be certain. If it is uncertain, it cannot be enforced.
It must follow the agreement and not purport to decide matters, not within the agreement. An award outside the agreement is void, and the void award cannot be severed from the rest of the award, the whole award is void.
It must be final.
It must dispose-off all the differences submitted to arbitration.
The award must be reasoned in the circumstances earlier.

Q16. Explain – Foreign Award.

If the award is made in a foreign country.
If the subject matter of the arbitration agreement involves international transaction that, is it is related to international trade, commerce, investment, etc.
Where a tleast one of the parties to arbitration agreement is a foreign national
If the award is made in accordance with the foreign law.

As per the Geneva Convention, “foreign award” means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924

India is the signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 as well as the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927.

Q17. Explain – Lok Adalat.

Under Section 22 of Legal Services Authority Act, 1987, Powers of Lok Adalats are as follows:

The Lok Adalat will have similar powers of a Civil Court and is governed under the Code of Civil Procedure.
It has the power to summon and enforce the attendance of a witness and their examination under oath;
It has power to order the discovery and production of any document;
It has power to receive evidence on affidavits;
It has power to receive evidence regarding a particular case.
It has power to ask for any public record or document or copy of such record or document from any court or office;
The Lok Adalat has the power to follow its own procedure for determining any dispute.
The proceeding of a Lok Adalat is considered to be judicial proceedings.

Q18. Write any three qualifications of an Arbitrator.

The requisite qualifications of arbitrator are as follows:

The arbitrator must have requisite qualifications and none of the disqualifications prescribed in the arbitration agreement.
The arbitrator should possess all the required capacity by law to assume the office of the arbitrator.
H must be a person of the general reputation of fairness, integrity, and capable of applying objectivity in arriving at settlement in the dispute.
The arbitrator should be free from any bias
The arbitrator must be free from any connection with parties and the subject matter.

Q19. What do you mean by misconduct of Arbitrator?

Q20. Explain – Negotiation is the process of dispute resolution.

The main features of negotiation are as follows:

Since negotiation is an informal process, it is relatively flexible.
Quick resolutions as compared to litigation.
It facilitates in maintaining a healthy relationship between the disputing parties.
Takes place in a private environment

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International Commercial Arbitration

Hemant More — Tue, 03 May 2022 13:41:14 +0000

Law > Civil Laws > Alternate Dispute Resolution > International Commercial Arbitration

Everybody has their own opinion and views, hence there may be a conflict of opinions. In today’s society, such conflicts are inevitable and a quick, easy, and strong mechanism for resolution of such conflicts at minimum cost is need of time. Such a mechanism reduces the burden on the judiciary. Arbitration, Mediation, Conciliation, Negotiations, Lok Adalats are some methods that can be used in such situations. These methods are collectively known as the Alternate Dispute Resolution (ADR) System. Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. The decision given by the arbitral tribunal is called an award. In this article, we shall study International Commercial Arbitration in detail.

Different kinds of arbitrations are as follows:

Domestic Arbitration: Domestic arbitration is that type of arbitration, which happens in India, wherein both parties must be Indians and the conflict has to be decided in accordance with the substantive law of India.
International Arbitration: When arbitration happens within India or outside India containing elements which are foreign in origin in relation to the parties or the subject of the dispute, and the dispute is decided in accordance with substantive law in India or any other country, then it is called as International Arbitration.
Institutional Arbitration: When an arbitral Institution conducts arbitration in accordance with the prescribed rules of such institution, it is called Institutional Arbitration.
Ad-hoc Arbitration: If the parties agree among themselves and arrange for arbitration, it is called Ad-hoc Arbitration without having an institutional proceeding. It can either be domestic, international, or foreign arbitration.
Statutory Arbitration: It is mandatory arbitration, which is imposed on parties by the operation of law. There are many central and State Acts which make arbitration mandatory.
Fast Track Arbitration: Fast track arbitration is a method, which is time-dependent in the provision of the arbitration and conciliation act. Its procedure is established in a way that it has abandoned all the methods, which consume time.

International Arbitration:

Arbitration is an alternative to litigation. Arbitration is a procedure in which parties submit present or future disputes, to one or more arbitrators (arbitral tribunal) who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. The decision given by the arbitral tribunal is called an award.

Domestic arbitration is that type of arbitration, which happens in a particular country (say India), wherein both parties must be of the same country (say Indians) and the conflict has to be decided in accordance with the substantive law of that country only (say India).

When arbitration happens within a particular country or outside the country containing elements which are foreign in origin in relation to the parties or the subject of the dispute, and the dispute is decided in accordance with substantive law in that country or any other country, then it is called as International Arbitration.

‘international arbitration’ is often taken to mean ‘international commercial arbitration’. Companies frequently include international arbitration agreements in their commercial contracts with other businesses, so that if a dispute arises with respect to the agreement they are obligated to arbitrate rather than to pursue traditional court litigation.

‘International arbitration’ has been defined by the UNCITRAL Model Law in Article 1(3) as follows:

An arbitration is international if:

(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or

(b) one of the following places is situated outside the State in which the parties have their places of business:

(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;

(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or

(c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.

The UNCITRAL Model Law has defined the term ‘commercial’ in footnote to the Article 1 as follows:

“The term “commercial” should be 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, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing”

Section 2(f) of the Arbitration and Conciliation Act, “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 for in India and where at least one of the parties is-

an individual who is a national of, or habitually resident in, any country other than India; or
a body corporate which is incorporated in any country other than India; or
a company or ail association or a body of individuals whose central management and control is exercised in any country other than India; or
the Government of a foreign country;

International Arbitration Rules:

Most international arbitration institutions provide rules which govern the resolution of disputes to be resolved via arbitration. The best-known rules of arbitration include those of

the International Chamber of Commerce (“ICC”),
the London Court of International Arbitration (“LCIA”),
the International Centre for Dispute Resolution of the American Arbitration Association (“ICDR”),
the rules of the Singapore International Arbitration Centre (“SIAC”) and
the Hong Kong International Arbitration Centre (“HKIAC”).

Investment Arbitration:

A relatively recent phenomenon, “investment arbitration” is one of the types of arbitration that is growing the most rapidly. It concerns the institution of arbitration proceedings by foreign investors against States on the basis of bilateral or multilateral investment treaties, or domestic laws providing consent to arbitration by the State. It may be the only recourse in response to the expropriation of private investments by a State.

Investment arbitrations are often resolved under the rules of the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) or the United Nations Commission on International Trade Law (“UNCITRAL”) rules. Many arbitrations involving Russian businesses take place under the rules of the Stockholm Chamber of Commerce (“SCC”).

Enforcement of International Arbitration Awards:

International arbitration awards can be enforced in most countries under the New York Convention, which entered into force on 7 June 1959. Over 168 countries have ratified the New York Convention today, meaning that arbitration awards can be enforced in all major countries in the world.

Case Laws:

Conclusion:

International arbitration has grown in importance in the last few decades, in tandem with globalization. It is primarily used to resolve disputes arising from commercial contracts, especially contracts with an international element. The primary laws on the basis of which international arbitration lawyers argue a case are the governing law of a contract, or the law of tort relating to a contract, the arbitration laws of the seat of arbitration, and the New York and Washington convention (alternatively known as the ICSID Convention).

This process provides a way of dispute resolution for the parties of different culture, languages, and legal rules under one common procedure which is a binding on the disputed parties.

The post International Commercial Arbitration appeared first on The Fact Factor.

Statutory Arbitration

Hemant More — Fri, 25 Mar 2022 17:51:41 +0000

Law > Civil Laws > Alternate Dispute Resolution > Arbitration

Different kinds of arbitrations are as follows:

Domestic Arbitration: Domestic arbitration is that type of arbitration, which happens in India, wherein both parties must be Indians and the conflict has to be decided in accordance with the substantive law of India.
International Arbitration: When arbitration happens within India or outside India containing elements which are foreign in origin in relation to the parties or the subject of the dispute, and the dispute is decided in accordance with substantive law in India or any other country, then it is called as International Arbitration.
Institutional Arbitration: When an arbitral Institution conducts arbitration in accordance with the prescribed rules of such institution, it is called Institutional Arbitration.
Ad-hoc Arbitration: If the parties agree among themselves and arrange for arbitration, it is called Ad-hoc Arbitration without having an institutional proceeding. It can either be domestic, international, or foreign arbitration.
Statutory Arbitration: It is mandatory arbitration, which is imposed on parties by the operation of law. There are many central and State Acts which make arbitration mandatory.
Fast Track Arbitration: Fast track arbitration is a method, which is time-dependent in the provision of the arbitration and conciliation act. Its procedure is established in a way that it has abandoned all the methods, which consume time.

Statutory Arbitration:

Generally, arbitration flows from an arbitration clause or arbitration agreement entered by two or more parties. Thus, arbitration is an act of parties. Parties decide themselves the arbitral tribunal, the procedure, the place, the language of procedure, etc. Thus, the process of arbitration is voluntary and solely depends on the existence of the arbitration clause or the arbitration agreement. But there are certain statutes, which provide statutory arbitration which is compulsory or mandatory under those statutes. The Electricity Supply Act, 1948, for example, provides for disposal by arbitration the disputes that may arise about its provisions.

“Statutory Arbitrations” are arbitrations conducted in accordance with the provisions of certain special Acts which provide for arbitration in respect of disputes arising on matters covered by those Acts.

Section 2(4) of the Arbitration and Conciliation Act, 1996, lays down that Part I of the Act except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.

Government contracts generally provide for compulsory arbitration in respect of disputes arising thereunder and usually the arbitrator appointed to decide such disputes are senior government officials. A large number of public sector undertakings also follow a similar procedure. There is also the Government of India’s Scheme, evolved on the directions of the Supreme Court, with regard to the settlement of disputes between one Government Department and another and one Government Department and a public enterprise and between public enterprises themselves. This Scheme provides for the constitution of a standing committee of senior officers who ensure that no litigation involving such disputes is taken up in a court or tribunal without the matter having been having first examined by the said committee and the committee’s clearance on litigation is obtained. The Ministries concerned in specific cases are also represented in the said committee. The committee assesses the reasonableness of the rival stands before it decides. This procedure has helped in an amicable settlement of a large number of disputes which would have otherwise ended in litigation.

There is also permanent machinery of arbitrators constituted by the Government of India to settle all current and future commercial disputes between public sector undertakings inter se as well as between a public sector undertaking and a Government Department. The award of the arbitration in such a dispute is binding on the parties to the dispute. Any party aggrieved by the award may make a reference for setting aside or revision of the award to the secretary, Minister of Law, Justice and Company Affairs, Government of India, whose decision binds the parties finally and conclusively.

Some acts which provide for statutory arbitration or conciliation are as follows:

The Industrial Disputes Act, 1947 (Ss. 4, 5, and 12)
The Bombay Industrial Relations Act, 1946 (Ss. 6 and 7(1))
The Hindu Marriage Act, 1955 (S. 23(2))
The Family Courts Act, 1984 (S. 9)
The Code of Civil Procedure, 1908 (O. 23 r. 3, O. 27 r. 5b, Ss. 80, 89(1) and 107(2))
The Land acquisition Act, 1894 (Ss. 11, 12, 18 and 26)
The Presidency Towns Insolvency Act, 1907 (S. 68(h))
The Indian Trusts Act, 1882 (S. 48)
The Indian Electricity Act, 1910 (S. 52)
The Indian Railways Act, 1890 (Ss. 46 and 48)

Distinction Between Ordinary Arbitration and Statutory Arbitration:

Ordinary Arbitration	Statutory Arbitration
Ordinary arbitration flows from an arbitration clause or arbitration agreement entered by two or more parties.	“Statutory Arbitrations” are arbitrations conducted in accordance with the provisions of certain special Acts which provide for arbitration in respect of disputes arising on matters covered by those Acts.
For this type of arbitration, an arbitration clause or an arbitration agreement must exist.	The statutory provisions initiate the course of the arbitration
It is voluntary	It is mandatory
Proceedings in ordinary arbitration are due to the meeting of the minds of the parties in dispute.	Proceedings in statutory arbitration are a creation of parliament
It is linked with International Laws and Conventions	It is closely linked to the domestic provisions of each individual legal system.

Conclusion:

Strictly speaking, statutory arbitrations are not arbitrations, but they arise out of some provisions of the statutes. These provisions direct the parties to refer to the matter to arbitration. Thus this direction can be called as a statutory reference and the proceeding itself is a statutory arbitration. Provisions of the Arbitration and Conciliation Act, 1996 are applicable to this arbitration.

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Setting Aside of Arbitration Award (Section 34 of the Arbitration and Conciliation Act)

Hemant More — Wed, 23 Jun 2021 11:36:08 +0000

Law > Civil Laws > Alternate Dispute Resolution > Setting Aside of Arbitration Award (Section 34 of the Arbitration and Conciliation Act)

An arbitration award is an instrument embodying the decision of the arbitral tribunal, given after determination in a quasi-judicial manner of matters in dispute between two or more contending parties, referred in pursuance of a valid written arbitration agreement between them providing for such reference giving arbitrators the power to decide and imposing a duty which makes it incumbent upon the parties to obey the decision arising from the submission.

Essentials of Arbitration Award:

The award must be in writing. (Section 31(1))
It must be signed by all or majority members of the arbitral tribunal. Reasons for the non-signing of defaulting members should be mentioned in the award. (Section 31(2))
It must reasonable, legal and possible. (Section 31(3))
It must have a date and place of arbitration (Section 31(4))
It must talk about the cost of the arbitration (Section 31(5))
It must be certain. If it is uncertain, it cannot be enforced.
It must follow the agreement and not purport to decide matters, not within the agreement. An award outside the agreement is void, and the void award cannot be severed from the rest of the award, the whole award is void.
It must be final.
It must dispose-off all the differences submitted to arbitration.
The award must be reasoned in the circumstances earlier.

Setting Aside of Arbitration Award:

Section 34 of the Arbitration and Conciliation Act 1996 deals with the setting aside of the arbitral award. In order to set aside an arbitral award, individual needs to file an application in court. The court in general accepts an application of challenge only if it comes under the ambit of Sec. 34 only. Prior to filing an application in the court to set aside the award, the party filing the application has to hand over a notice of such filing to the opposite party. Application for setting aside award to the Court as defined in the Act (Principal Civil Court of Original Jurisdiction) should be made within 3 months from the date of receipt of the final award of arbitration. Extension of further 30 days can be given at the discretion of the Court. Section 20 and Section 44 of CPC are applicable. The effect of the order setting aside the arbitral award is that where only a part of the reward is set aside, the rest of the award is final and binding on parties and can be enforced under the Code of Civil Procedure.

Grounds of Setting Aside of Arbitration Award:

The following are the grounds on which an award can be set aside:

Incapacity of a party.
Unlawful agreement.
No notice to the other party.
Subject matter extent to the scope of the arbitration agreement.
Formation of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.

Incapacity of the parties

In case any of the parties is of unsound mind or is minor, then such persons are not bound to act in harmony with any agreement or contract. Therefore, the agreement itself becomes null and void and passing any award in such case can be set aside by the court.

Unlawful agreement

If the contract is unlawful, then the arbitration agreement will also be held to be invalid. All the essential elements of a contract have to accomplish in order for it to become enforceable.

No notice to the other party

A prior notice must be sent to the other party regarding the commencement of the proceedings or of invocation of the arbitral clause of the agreement.

Subject matter extent to the scope of Arbitration Agreement

While formulating an agreement, the parties describe as to what all can be enclosed in the subject matter and what are the disputes that are enclosed under the arbitration agreement. Consequently, only those subject matters can be referred to an arbitral tribunal to resolve the dispute, not any other. If the tribunal acts ultra vires to the agreement, the party affected may file an application in the court and challenge such award.

Formation of the Tribunal not as per the Agreement

In case the Arbitrator is not appointed as per the agreed terms of the agreement or by the parties which has not been followed or any other bureaucratic aspect that was decided earlier in the agreement by the parties has not been followed all the way through, then such affected party may challenge the award in the court to set aside the award.

Subject matter not under the ambit of Arbitration law

There are certain types of matters that are not arbitral in nature like criminal, insolvency or any other public matters. These matters have been unambiguously barred under the purview of arbitration.

Award in conflict with the Public Policy of India

This ground has additional three more explanations, which was added in the 2015 amendment.

Award through deception or dishonesty.
In contravention to the fundamental policy of India.
In disagreement with ethics or integrity.

If a party challenges the award of an arbitral tribunal (under section 34 of the Arbitration Act) by filing an application for the same in the court, just because he has applied would not set aside the arbitral award. The award will be set aside only when the court orders so. The court may put a stay on the arbitral award if it is satisfied that the award is against the principles of justice. The court shall record its reason for doing so.

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