FAQs: Arbitration

What does Arbitration exactly define?

Arbitration is a procedure and technique to resolve a dispute of (normally) civil in nature (no criminal cases). In arbitration, an independent third party (as an arbitrator) is selected by both parties, who acts as a judge. An arbitrator listens to the issues of both parties, examines the facts and evidence, and based on the facts and evidence, he/she gives the judgment, which is legally binding on both parties.

 

What is the difference between Arbitration and Litigation?

Litigation is a courtroom trial where parties have no control; they have to follow the guidelines of the court and the instructions of the respective judge/s. In reference to litigation, arbitration is less formal, flexible, time-saving, money-saving, and parties can decide the time and place of hearing as per their convenience.

The parties can choose their arbitrator/s as per their choice, but they cannot choose a judge of their choice.

 

What is the difference between Arbitration and Mediation?

Arbitration differs from mediation, as it (arbitration) is an informal litigation procedure; all the procedures are very much similar to litigation i.e., presenting facts and evidence, etc. however, mediation is a sort of negotiation where the mediator suggests and guides the parties to make a mutually acceptable solution.

 

Why go for Arbitration? Or what are the benefits of Arbitration?

By virtue of being flexible, time-saving, and money-saving, arbitration has many advantages including:

·  It is faster, as you set the time and date as per your convenience.

· It is less expensive, as you don’t need to pay unexpected fees of your advocate along with the court fees.

·  Its decision is equally valid and binding as of a court.

·  It can be held in a private place.

·  It is highly confidential.

·  Parties can choose their arbitrator/s.

In addition to this, another important advantage of arbitration is – as parties have the liberty to choose their arbitrator/s of their choice; in such a case, they can choose an arbitrator who is the subject expert (in reference to the dispute). Some of the cases are required greater attention, testimony, complex evidence, and other factual documents; in such a case, knowledge of an arbitrator (of the respective field) facilitates him/her to understand the dispute clearly and arrive at a decision quickly.

How does Arbitration work?

Arbitration involves the following steps:

·  Selection of a neutral party as an arbitrator by the parties (in dispute);

· Setting up the rules of procedure by the parties along with the selected arbitrator;

·  A formal trial/hearing in front of an arbitrator;

· Hearing can be attended by the parties (themselves) or they can be represented by their attorneys;

·  Presentation of facts, evidence, witnesses (if any), and cross-examination by the respective party; and

·  Based on the given circumstance, giving a final binding award.

 

Is Arbitration final?

Like a court’s judgment and award, an arbitrator’s judgment/award is also final and legally binding on all the parties involved in the arbitration.

Who can be appointed as an Arbitrator?

Any person (at whom both parties have trust and mutual consent) can be appointed as an arbitrator. However, parties can take the help of a court of their jurisdiction while selecting an arbitrator, as courts make available the list of arbitrators.

 

What is the Role of an Arbitrator?

The arbitrator’s role is almost similar to a judge; therefore, he can be called as a private judge and can act just like a judge whose decision is as binding as that of a judge.

 

How much does the Arbitration process cost?

The cost normally varies, as it depends on the complexity of the case, arbitrator’s fee, and the length of the arbitration procedure.

 

How long does Arbitration last?

Though arbitration procedure is faster (than litigation), but depending upon the case, it may take a month to several months.

 

Am I required to hire a Lawyer?

Normally, you are not required to hire a lawyer, as you can present your case by yourself or by your representative. However, by understanding the complexities of your case, you might need a lawyer. The fee of your lawyer must be borne by you only.

 

How can I initiate Arbitration?

If you have signed an agreement (with an arbitration clause) that says that in the case of any dispute – if arises, then that will be resolved through arbitration; in such a case, you are required to follow the instruction of the arbitration clause.

In lack of an arbitration clause, you can decide it with the consent of your opponent party. However, sometimes judges also instruct the parties to find an arbitrator to resolve the issue.

 

Is the Arbitration Process Confidential?

The arbitration process is entirely a private room process; so, there is no involvement of any other person (who is not related to the case) or even media. Furthermore, the final decision of the arbitrator also remains confidential.

 

What kinds of disputes can be arbitrated?

Mostly civil cases can be arbitrated. Furthermore, whatever the issues that the parties agreed (in advance) to resolve through the arbitration, can be arbitrated. Such a kind of dispute, normally, involves a contract and other legal agreements.  

Rarely a criminal case can be arbitrated; as such, there is no scope that a criminal case can be arbitrated.

 

Where does Arbitration take place?

Arbitration can be taken place anywhere depending upon the convenience of the parties. It is entirely private in nature; hence, it can be held in a hotel room, conference room, office’s seminar room, arbitrator’s place, or even at your home if equipped with such facilities and parties agreed upon.

Who does bear the cost of arbitration?

The cost of the arbitration is entirely borne by the party who initiated it. Although they can split the expense if both parties agree to it. In several of the cases I worked on, the parties reached a compromise on how to divide the arbitrator's fees.

The cost of arbitration can be borne by both parties if they agree to split the expenses. However, it is not solely borne by the party who initiated it. The allocation of arbitration costs is usually determined by the arbitration agreement or the arbitrator's decision.

What is a mandatory arbitration clause?

A clause in a contract known as a "mandatory arbitration clause" mandates that both parties resolve any disputes or legal matters that occur during the duration of the agreement through arbitration.

How do you win an arbitration case?

There are some rules which you have to follow -

Rule No. (1) Never Impair Your Credibility with the Arbitrator.

Rule No. (2) Neither a Castigator nor a Whiner Be.

Rule No. (3) Throw Far-Fetched Claims and Defenses out the Window.

Rule No. (4) Don't Waste Time and Money on Motions.

Rule No. (5) presenting strong evidence and persuasive arguments

Rule No. (6) abiding by the arbitration process as outlined in the arbitration agreement or the applicable arbitration rules.

These are however general advice on how to win an arbitration case.

Is the arbitrator a judicial officer?

Judges play a crucial function in our legal system, and most arbitrators do not view themselves as private judges. By offering specialised, commercially relevant legal expertise and private decision-making, arbitrators serve the parties rather than the government. While the arbitrators do perform a decision-making role similar to judges, they are not government-appointed or affiliated with the judiciary.

Why would someone choose to go through arbitration rather than litigation (court)?

Someone choose to go through arbitration because arbitration is so much less expensive than litigation, which means both parties save money on legal bills, it is frequently preferred over courts. They can also rapidly settle their conflict without having to wait months or years for a court appearance. Arbitrators are impartial third parties, therefore their ability to base their decisions purely on the facts of the case is another advantage.

What is the purpose of FINRA arbitration?

Financial Industry Regulatory Authority, sometimes known as FINRA, is a self-regulatory body that regulates brokerage houses and financial advisors. Arbitration by FINRA is used to settle disagreements between clients and their brokers or financial advisors.

 

Can an arbitrator issue a summons?

According to section 27(3) of the Arbitration Act, the Court may decide to offer assistance, order the issuance of witness summonses, or require the production of documents.

 

What is a settlement award in arbitration?

The parties may ask the tribunal to issue an arbitral award or a conciliation statement in line with the terms of the settlement agreement if a settlement is reached throughout the arbitration without the need for conciliation by the tribunal.

 

Do I have to reply to an arbitration demand?

The asserted claims become in dispute and are open to the complaining party's burden of proof upon failing to respond to a demand or counterclaim, which is called a denial.

Generally, it is appropriate to respond to an arbitration demand, failing to respond may result in the claims being considered in dispute and subject to the burden of proof on the complaining party. However, the specific requirements and consequences may vary depending on the arbitration rules and the jurisdiction involved.

 

Who usually wins in arbitration?

The findings from the research show that in the forced choice scenario of final offer arbitration, neutrals are often more inclined to choose the union's offer than the employer's offer, with employers winning around 40% of the cases put to arbitration.

 

Do arbitrators need to be lawyers?

Arbitrators do not necessarily need to be lawyers. The educational and professional backgrounds of arbitrators are extremely diverse. Many people have backgrounds in law or are now practicing as solicitors, but there are also lots of people with backgrounds in accounting, insurance, finance, healthcare, construction, or other industries.

 

What is a judge called in arbitration?

In an arbitration hearing, an arbitrator acts as the decision-maker and "referee," much like a judge does in a court case.

 

How do you resolve conflict through arbitration?

The arbitration may be required or optional, and the ruling may be enforceable or irrevocable. Arbitration can be a mandatory or voluntary process depending on the arbitration agreement or the parties' choice. Mandatory arbitration means that the parties must arbitrate any disputes, whereas voluntary arbitration indicates that the parties may first attempt to resolve their differences through other means.

 

Who goes first in arbitration?

In most cases, the moving party makes its argument first. The respondent is often the party moving the jurisdictional hearing. The claimant is the party who moves the matter if it is a hearing on liability and/or damages. However, the specific order may be determined by the rules of the arbitration or by agreement between the parties.

 

What are the keys to successful arbitration?

There are some keys to successful arbitration, you must be knowledgeable about the following topics: how to draught and analyze arbitration agreements; how to choose arbitrators; how to handle pre-hearing procedures; how to effectively represent your client at arbitration hearings; and what remedies are available when arbitration verdicts are made.

 

Can an arbitrator take evidence?

During the arbitration procedure, parties will be required to submit pertinent evidence. Some arbitrators may demand that certain forms of evidence (such as bills, photos, and correspondence between the parties) be submitted in a particular format, such as in a binder, and labeled in a particular order.

 

Who are the parties in arbitration?

The parties to the arbitration agreement and either a single arbitrator or a panel of multiple arbitrators are the participants in any arbitration process.

 

Can a couple appoint an arbitrator?

Yes, just like in a court case when each side submits evidence in the form of documents, witnesses, and other elements, both parties can choose a single arbitrator and prepare for the hearing with the help of their attorneys. The impartial arbitrator then resolves divorce disputes by applying the relevant legal standards to the particular circumstances that were given.

 

Who pays the arbitration award?

The tribunal decides that the losing party must pay back the winning party for all or some of the arbitration-related expenses, including the arbitration award. The specifics of cost division could change, though, depending on the arbitration agreement, the rules that apply, and the tribunal's ruling.

 

Is the arbitration award final?

An "arbitral award" is a decision reached by a majority of the arbitral panel or a unanimous decision that is final and enforceable against the parties, meaning that the parties are legally bound by the decision and must comply with its terms.

 

Can you explain how arbitrators are chosen?

Arbitrators are often chosen by the parties to the dispute, but occasionally they may also be chosen by the court or other outside parties. I've been selected as an arbitrator multiple times, and I think my interpersonal skills and capacity for objectivity make me a strong contender.

 

What is a party-appointed arbitrator?

An arbitrator who is appointed by one of the parties to an arbitration dispute is known as a party-appointed arbitrator. This someone is impartial and unaffiliated with either side, although they frequently have expertise in the area where the conflict took place. They are frequently employed when both parties concur on their qualifications and want to guarantee that the arbitrator renders a fair conclusion.

 

Can you define Mediation and how it is useful in arbitration?

In mediation, two parties meet with an impartial third party who assists them in reaching a mutually agreeable solution. It is helpful because it prevents the need for a court hearing and enables both parties to participate in the decision-making process.

 

What does AAA stand for? How does it relate to arbitration?

The abbreviation for the American Arbitration Association is AAA. This company was established in 1927 to offer arbitration services to both corporate and private clients. The association strives to maintain transparency while equitably resolving conflicts.

 

What is the difference between binding and nonbinding arbitration?

When both parties accept the arbitrator's ruling as binding, the arbitration is said to be binding. Arbitration that is nonbinding means that the parties are not required to abide by the arbitrator's ruling.

 

What is the role of an arbitrator or mediator?

It is the responsibility of an arbitrator to make fair decisions for both parties to a dispute. They should have the capacity to pay close attention, inquire, and assess the available data. In order to effectively communicate their reasons to all parties, an arbitrator must also have great communication abilities. The main duty of mediators is to facilitate dialogue and compromise between two sides in order to end a disagreement. To accomplish these ends, they could employ strategies like active listening, empathy, and problem-solving.

 

Does arbitration always end with an agreement?

No, there isn't always a settlement reached during the arbitration. In actuality, this is uncommon.

 

How long does arbitration take to settle?

The duration of arbitration can vary depending on several factors, such as the complexity of the dispute, the number of issues involved, the availability of the parties and the arbitrator(s), and the procedural rules. While some cases can be resolved in a few days or weeks, others may take months or even longer. After the arbitration proceedings, the arbitrator will render a binding decision, and unless there is an appeal, the parties are expected to comply with the decision.

 

Is the result of an arbitration considered confidential?

Arbitration proceedings are typically confidential, meaning that the sessions are not open to outsiders, and the parties and the arbitrator(s) have an implied duty to maintain the privacy of the hearing and any records created during the arbitration, including the award.

 

Can an arbitrator summon a witness?

If permitted by the relevant laws or arbitration rules, an arbitrator may be able to call witnesses. However, the scope of the arbitrator's authority to call witnesses may differ based on the jurisdiction and the particular arbitration rules. Usually, the arbitration rules or the parties would specify the procedure and requirements for calling witnesses.

Is the arbitral decision interim or final?

Unless challenged under Section 34 of the Arbitration and Conciliation Act, 1996 ("Act"), it is final and binding on the parties. The process of drafting an award is difficult because the arbitrator must distill the entire proceeding into a logical and persuasive document.

 

Is an arbitration award final or appealable?

An arbitration award is final and binding on the parties and there is no possibility for appeal. According to Section 34 of the Arbitral and Conciliation Act of 1996, an aggrieved party may, nevertheless, apply to a court to have the arbitral judgment set aside on legal grounds.

 

When do arbitral awards become lawful and binding?

Any such amendment, clarification of the award, and/or additional reward shall be included in the final Award. The deadline under the legislation for challenging an Award expires when it becomes final, or if challenged, when the final decisions on those challenges are made.

 

 Can we appeal the arbitration decision?

According to Section 34 of the Arbitration Act, there are grounds for contesting an award, and the party contesting the award has only that one option for redress. An arbitral award may be appealed if it violates Indian public policy, according to Section 34(2)(b)(ii) of the Arbitration Act.

 

What happens in India after a decision in arbitration?

Each party must receive a signed copy of the award when it is produced. The provisions of Section 31 also require the arbitral award to include the grounds upon which it was based unless the parties have agreed that no grounds shall be provided or the award is an arbitral judgment on conditions agreed upon according to Section 30 (Settlement).

 

Can a court remove an arbitrator?

If an arbitrator has acted unfairly or if his interests in any way clash with those of one of the parties to the arbitration, the court may order his removal under Section 24 of the Arbitration Act of 1996.

 

Which parties are the arbitral third parties?

Those who are not signatories to the arbitration agreement and have no personal connection to it are referred to as third parties. They are neither regarded as necessary or proper parties to commence proceedings nor are they obligated by the contract, according to a number of rulings rendered by Indian judicial authorities.

 

Is there a burden of proof in arbitration?

In most circumstances, the principles that apply in civil cases—namely, that the person asserting a claim must prove it—are followed. This is clear from Section 34 of the Arbitration Act, which allows for judicial review of an arbitral ruling.

 

What part does the arbitrator play when the case is being heard by arbitration?

The arbitrator plays a crucial role in overseeing the process and making decisions. Arbitrators may use their discretion as permitted by national arbitration laws. Any pertinent evidence may be included at the arbitral tribunal's discretion, and any evidence that is irrelevant, repetitive, or unsuited to establish the facts it seeks to establish may be excluded. The arbitrator has discretion within the bounds of the applicable arbitration laws and rules to conduct the proceedings and render a fair and reasoned decision.

 

Who is not eligible to be chosen as an arbitrator?

According to Section 12(5), a person cannot be appointed as an arbitrator if they have a relationship with either party to the dispute that is listed in the Seventh Schedule. The Seventh Schedule includes relationships such as being an employee, consultant, or advisor to one of the parties, having a financial interest in the outcome of the dispute, or having a close family or business relationship with one of the parties.

 

How do I become an arbitrator after LLB?

In order to work as an arbitrator in India, you must possess the necessary educational credentials and work experience. Normally, you'll need to have at least ten years of expertise in an area that's relevant, like law, business, engineering, or construction.

 

How do I pay for an arbitration?

In order to cover the necessary Stamp Duty on the anticipated Arbitral Award, a set payment of Rs. 1500/- will be received as an advance from the Claimant. The relevant party is responsible for paying any additional stamp duty that is required over and above the set sum listed above, if it is required as specified in the Arbitration Award.

 

 What is the typical cost of an arbitration?

The arbitrator fees have been increased to Rs. 18000 per case and each arbitrator. Following this price increase, the client (where applicable) and Exchange will split any additional costs attributable to a client that go above and above the fee schedule outlined under "Arbitration Cost to be Collected from Parties." The trade member in question is required to pay the whole cost that is attributable to them.

If relevant, taxes may be assessed against the parties in accordance with the current legal framework.

 

What is the typical duration of an arbitration?

An arbitration proceeding must be finished within 12 months (and an additional six months if both parties agree to it) of the date the statement of claim and statement of defence are filed.

 

What is fast-track arbitration?

Fast-track arbitration is an expedited procedure designed to streamline and accelerate the arbitration process, particularly for lower-value claims or cases with simpler issues. It aims to lower the cost of the arbitration. A fast-track arbitration agreement is enforceable and binding on the parties, just like any other arbitration agreement. Similar to a court decision, an arbitral award is final and enforceable against the parties since it is a decision made under the authority of the law.

 

What is arbitration?

Arbitration is the process where, two parties agree to present their differences to a neutral third party, known as the arbitrator, for a legally binding ruling. After hearing all sides of the narrative, the arbitrator renders a decision based on the available evidence. The arbitrator, who is usually an expert in the relevant field, listens to the arguments and evidence presented by the parties and renders a decision based on the merits of the case.

 

 What are the three foundational principles of arbitration?

The three basic principles of arbitration legislation are laid out in Section 1 of the Act, namely: (i) a speedy, inexpensive, and fair hearing by an impartial tribunal; (ii) party autonomy; and (iii) minimal court intervention:

(i) Speedy, inexpensive, and fair hearing by an impartial tribunal: Arbitration aims to provide a process that is efficient and timely, ensuring a fair hearing for both parties involved. The proceedings should be conducted without undue delay and excessive costs, promoting a balanced and equitable resolution.

(ii) Party autonomy: Arbitration respects the principle of party autonomy, which means that the parties have the freedom to choose the arbitrators, determine the procedural rules, and shape the arbitration process according to their agreement. The parties have control over the dispute resolution process within the boundaries set by the applicable laws.

(iii) Minimal court intervention: Arbitration seeks to minimize court intervention and uphold the finality and enforceability of arbitral awards. Courts typically play a limited role in the arbitration process, primarily to provide support, enforce agreements, appoint arbitrators, and assist in certain procedural matters.

 

What makes arbitration different from litigation?

In arbitration, a neutral third party is chosen to investigate the conflict, hear from the parties, and then provide recommendations for resolving it. Contrarily, litigation is defined as a legal procedure where parties go via the court system to resolve their differences.

Arbitration and litigation are different in a number of ways:

1. A judge or jury is chosen to render a binding ruling in litigation, whereas the parties choose a neutral arbitrator or panel of arbitrators to settle their disagreement in arbitration.

2. The parties to an arbitration agreement, sometimes based on an arbitration clause in a contract, voluntarily agree to submit their disagreement to arbitration. Contrarily, litigation follows a formal judicial process that is governed by laws and regulations.

3. Unlike litigation, which often adheres to rigid court procedures, arbitration has greater freedom in terms of procedure and norms. The parties have more control over the arbitration process, which might be more informal.

4. Unlike court hearings, which are often open to the public, arbitration sessions are typically private and secret.

5. Unlike court judgments, which may be subject to additional appellate procedures, arbitral decisions are final and binding on the parties with few grounds for appeal.

 

What is the rule of law in arbitration?

Everything depends on the agreement between the parties and the relevant legal framework. Also, keep in mind that there is no precedent doctrine in commercial arbitration. It ensures that the fundamental principles of fairness, due process, and legality are upheld throughout the arbitration process. The rule of law also ensures that the arbitral awards are enforceable and can be recognized and enforced by courts if necessary. As a result, arbitrators don't make law; rather, they settle disputes.

 

What are the kinds of Arbitration?

There are three kinds of arbitration -

(1) Institutional Arbitration: Institutional arbitration is arbitration conducted by an arbitral institution. The parties may decide to state in the arbitration agreement that the disputes will be resolved in accordance with the norms of the institution they have chosen to serve as their arbitral institution

(2) Ad hoc Arbitration: Ad hoc Arbitration without an institutional proceeding is what is done if the parties mutually agree to arbitrate their dispute and make the necessary arrangements. Arbitration may take place domestically, internationally, or abroad.

(3) Fast Track Arbitration: A procedure in the Arbitration and conciliation act called "fast track arbitration" is time-sensitive. Its procedure is set up in such a way as to forgo any time-consuming techniques and uphold the simplicity that was initially the main goal of such arbitration.

 

What do you mean by Ad-hoc Arbitration?

Ad Hoc arbitration denotes that the arbitration proceedings shouldn't follow the procedures of a particular arbitral institution. Parties are allowed to set their own procedural rules for their arbitration because they are not required to follow the norms of an arbitral institution. Ad hoc arbitration's geographic jurisdiction is crucial since the majority of arbitration-related disputes will be settled in line with the national legislation of the arbitration venue.

 

What do you mean by Institutional Arbitration?

Institutional arbitration is arbitration conducted by an arbitral institution. The parties may decide to state in the arbitration agreement that the disputes will be resolved in accordance with the norms of the institution they have chosen to serve as their arbitral institution. Examples of arbitral institutions include the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association (AAA). Institutional arbitration provides a framework and established rules for conducting arbitration, ensuring procedural fairness and consistency in the resolution of disputes.

 

What do you mean by Statutory Arbitration?

The term "Statutory Arbitrations" refers to arbitrations that are conducted in compliance with certain special Acts that mandate arbitration for disputes relating to subjects covered by such Acts.  In statutory arbitration, the arbitration is conducted in compliance with the provisions and requirements set forth in the applicable legislation. A clause or agreement requiring arbitration must exist for this particular sort of arbitration.

 

What do you mean by the Arbitration Agreement?

An arbitration agreement is a contractual agreement between parties that determines their intention to submit disputes arising from their relationship to arbitration rather than pursuing litigation in court. It is a formal agreement that establishes the terms and conditions under which the arbitration will take place, including the selection of arbitrators, the rules governing the arbitration, and the place of arbitration. The arbitration agreement is usually a separate clause within a broader contract or can be a standalone agreement. The arbitration process is similar to the courtroom proceedings in that the parties may be represented by solicitors, information is exchanged, and there is a hearing where the parties cross-examine witnesses and make their points.

 

Is an arbitration agreement necessary?

An arbitration agreement is necessary if the parties want to resolve their disputes through arbitration instead of going to court. Without an arbitration agreement, the default option would be to seek resolution through the judicial system. The agreement to arbitrate is a fundamental requirement for the parties to submit their disputes to arbitration. It ensures that both parties have consented to the arbitration process and have agreed to abide by the decision of the arbitrator(s).

 

What were the primary benefits of the arbitration agreement?

Many of the nation's courts are already overburdened with cases. This where arbitration agreements become beneficial and useful. The primary benefits of an arbitration agreement include:

1. Efficiency: Arbitration can offer a more streamlined and efficient dispute resolution process compared to litigation, potentially saving time and costs.

2. Expertise: Parties can choose arbitrators with expertise in the specific subject matter of the dispute, ensuring that the decision-maker has relevant knowledge and experience.

3. Flexibility: Arbitration allows parties to tailor the arbitration process to their specific needs, including procedural rules, language, and the selection of arbitrators.

4. Confidentiality: Arbitration proceedings are generally private and confidential, providing parties with greater confidentiality compared to court proceedings, which are typically public.

5. Finality and enforceability: Arbitral awards are generally final and binding on the parties, and they are enforceable in domestic and international jurisdictions under the New York Convention.

6. Reduced court involvement: Arbitration reduces the need for extensive court involvement and allows parties to resolve their disputes outside of the formal court system, providing autonomy and control over the process.

 

What is the importance of arbitration agreements in India?

In India, arbitration is significant for a variety of reasons. First of all, compared to litigation, it is a quicker and more effective method of settling conflicts. The Indian legal system is overworked, and cases often languish for years before being decided.

 

What do you mean by "Foreign Award"?

According to section 44, a foreign award is an arbitral decision relating to disagreements over things that India's legal system considers to be commercial.

 

What do you mean by Arbitral Tribunal?

A panel of one or more arbitrators who have been constituted to arbitrate a dispute is known as an arbitral tribunal. The tribunal may be made up of just one arbitrator or it may have two or more, together with a chairperson or umpire.

 

What do you mean by Domestic Award?

A domestic award is the outcome of domestic arbitration, therefore it is limited to the territory of India. The parties must have a connection to or be of Indian origin, so the territory is essentially a factor in determining whether arbitration is domestic. Part 1 of the Act is in charge of it.

 

How does the arbitration procedure work?

In arbitration, the procedure typically involves the following steps:

1. Agreement to arbitrate: The parties agree to resolve their disputes through arbitration and include an arbitration clause in their contract or enter into a separate arbitration agreement.

2. Appointment of arbitrators: The parties agree on the appointment of arbitrators or follow the prescribed procedure for selecting arbitrators as per the arbitration agreement or applicable rules.

3. Preliminary hearings: The arbitral tribunal may conduct preliminary hearings to establish the procedural rules, determine the scope of the dispute, and address any preliminary issues.

4. Exchange of statements of claim and defense: The parties present their case by submitting written statements of claim and defense, outlining their arguments and supporting evidence.

5. Hearings: The parties have the opportunity to present their case orally, present witnesses, cross-examine witnesses, and submit additional evidence.

6. Deliberation and award: After considering the evidence and arguments, the arbitral tribunal deliberates and renders a written decision or award, which is binding on the parties.

7. Enforcement: The award can be enforced in accordance with the applicable laws and procedures in the jurisdiction where enforcement is sought.

 

What are the grounds for challenging the jurisdiction of an arbitrator?

The facts and circumstances of the case, particularly the nature of the question to be resolved, must be considered when making a decision about a claim of prejudice or bias. The party who appointed the arbitrator may contest his or her appointment, but only for factors of which the party became aware after the appointment was made.

 

Is arbitration a civil law?

Arbitration is a method of resolving disputes that is distinct from civil law or litigation. While civil law refers to the legal system that governs private rights and remedies, arbitration is an alternative dispute resolution process in which the parties agree to submit their dispute to one or more arbitrators who make a binding decision. Arbitration can be used in both civil law jurisdictions and common law jurisdictions as a means to resolve disputes outside of the court system.

 

Is the registration of an arbitral award required?

In M. Venkataratnam and Anr. vs M. Chelamayya and Anr. (AIR 1967 AP 257). The Full Bench ruled that in order for an award to be effective, it must be registered in accordance with section 17(1)(b) of the Registration Act if it concerns immovable property. It was noted that the Registration Act of 1908 and the Arbitration Act of 1940 needed to be read together.

 

How do you challenge the jurisdiction of arbitration?

According to the Act, a party has the option to dispute an arbitral tribunal's jurisdiction on a number of different grounds. The arbitral tribunal must receive an application under section 16 of the Act from a party that intends to challenge the arbitral tribunal's jurisdiction in most circumstances. The tribunal will then consider the objection and make a decision on its own jurisdiction. If the tribunal upholds its jurisdiction, the challenging party may have the option to seek judicial review of the decision in accordance with the applicable laws of the jurisdiction.

 

How is an arbitration tribunal appointed?

The appointment of an arbitration tribunal typically involves the following steps:

1. The parties agree on the number of arbitrators: The arbitration agreement or the rules chosen by the parties specify the number of arbitrators who will constitute the tribunal. It can be a sole arbitrator or a panel of multiple arbitrators.

2. Each party appoints an arbitrator: Each party has the opportunity to appoint an arbitrator of their choice. The method and timeline for appointing arbitrators may be set out in the arbitration agreement or the applicable rules. If a party fails to appoint an arbitrator within the specified time, or if the parties agreed on a three-member tribunal and cannot agree on the appointment of the third arbitrator, the appointment may be made by a designated appointing authority or a court.

3. Appointment of the presiding arbitrator or the tribunal chairman: Once the party-appointed arbitrators are selected, they may proceed to appoint a presiding arbitrator or a chairman of the tribunal. This appointment can be made by mutual agreement between the party-appointed arbitrators or according to the agreed-upon procedure in the arbitration agreement or applicable rules.

The specific process for the appointment of arbitrators may vary depending on the agreed-upon rules or institutional procedures chosen by the parties.

 

How is an arbitral tribunal formed?

The formation of an arbitral tribunal depends on the rules or procedures chosen by the parties. In the context of ICSID (International Centre for Settlement of Investment Disputes) arbitrations, the tribunal is formed as follows:

1. Appointment by the parties: Each party typically appoints one arbitrator to the tribunal. These arbitrators are chosen from the ICSID Panel of Arbitrators.

2. Selection of the third arbitrator or presiding arbitrator: After the party-appointed arbitrators are selected, they may proceed to select the presiding arbitrator or the third arbitrator, depending on the agreed-upon procedures. This can be done through mutual agreement or according to the rules or procedures specified by ICSID.

 

Who is the founder of arbitration?

The concept of arbitration has been practiced for centuries, and it is difficult to attribute its founding to a single individual. According to biblical theory, the first arbiter to resolve a dispute involving two women claiming to be the mothers of a baby boy was King Solomon. A few have also claimed that King Solomon's arbitration process was analogous to current arbitration practices.

According to biblical tradition, King Solomon resolved a dispute between two women claiming to be the mother of a baby by proposing a test and rendering a wise judgment. While King Solomon's arbitration process predates the formal systems and frameworks we have today, it is seen as an early illustration of resolving conflicts through a neutral third party.

 

What do you mean by the correction award?

The Arbitration & Conciliation Act discusses the modification of an arbitral award after it has been issued under Section 33. Under Section 33 of the Arbitration and Conciliation Act, 1996, parties can request the arbitral tribunal to correct any errors that may have occurred in the award. This could include typographical mistakes, calculation errors, or other similar errors that are considered minor and do not impact the substance of the award. The purpose of the correction award is to ensure the accuracy and clarity of the final award.

 

What is the jurisdiction of the arbitral tribunal in India?

Section 16 of the Arbitration and Conciliation Act, 1996 gives the arbitral tribunal the authority to decide what jurisdictions it has. The arbitral tribunal has the authority under Section 16 to decide whether it has jurisdiction to decide the issue.

 

What are the general duties of an arbitral tribunal?

The term “arbitral tribunal” refers to either a single arbitrator or a panel of arbitrators. They have to decide the dispute, render an arbitral award, and adjudicate it.

The general duties of an arbitrator are:

1. To be independent and impartial

2. To fix a time and place for arbitration, which is convenient to the parties

3. Duty to disclose

4. Duty to efficiently resolve the dispute

5. Duty to determine the rules for the procedure

 

When can the court remit the award to the arbitral tribunal for reconsideration?

The following requirements must be met before the court will adjourn the proceedings under section 34(4): (i) an application to set aside the award under section 34(1) of the Act;

(ii) the court’s finding that the same is appropriate; and

(iii)  a party's request in this regard.

 

Whether the court is empowered to set aside the award, if so, on what grounds?

Yes, the court is empowered to set aside an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996. The grounds on which a court may set aside an award include:

1. Incapacity of a party: If a party to the arbitration agreement was under some incapacity or the agreement itself is invalid under the law applicable to the parties.

2. Invalid arbitration agreement: If the arbitration agreement is found to be invalid, null, or inoperative.

3. Lack of proper notice or inability to present the case: If a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or if they were unable to present their case.

4. Violation of public policy: If the award is in conflict with the public policy of India.

5. Improper composition of the tribunal: If the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties.

 

What happens after the award has been set aside?

The parties are returned to their former positions once an arbitral award is set aside, and they are free to decide what should happen next. Section 19 of the Arbitration Act allows them to choose the terms of the process that must be followed whenever they start over.

 

When will the arbitral award be final?

The arbitral award is final and enforceable against the parties and anybody making a claim on their behalf. The parties’ initial agreement is definitive and binding.

 

What is the additional award?

An additional award is one that the tribunal makes in response to a claim that was brought before it but was not addressed by the main award, either on its own initiative or at the request of a party. The additional award is intended to address any remaining issues or claims that were left unresolved in the main award.

 

At what time is an additional award made after the final award?

The tribunal must issue an additional award within 60 days of receiving the request. The arbitral tribunal may extend the deadline for providing its interpretation, correction, or supplementary award in the event of a complex award or a protracted dispute.

 

What is an award when can an award be corrected and set aside?

According to the reasons outlined in Section 34 of the Arbitration and Conciliation Act of 1996, a court may overturn an arbitral ruling. These elements consist of: Parties’ lack of ability. The invalidity of the contract. Some common grounds for setting aside an award include; incapacity of a party, invalid arbitration agreement, lack of proper notice or inability to present the case, if a party was not given proper notice of the appointment of an arbitrator or the arbitral proceedings, or if they were unable to present their case and violation of public policy.

 

What is the arbitration award’s remedy?

In an arbitration award, the remedies available depend on the nature of the dispute and the relief sought by the parties. The arbitral tribunal has the authority to grant various types of remedies, including:

1. Monetary damages: The tribunal can award monetary compensation to one party, requiring the other party to pay a specific amount as compensation for the losses suffered.

2. Specific performance: The tribunal may order a party to fulfill specific obligations or perform a certain action as agreed upon in the contract.

3. Injunctive relief: In certain cases, the tribunal can grant injunctive relief, such as temporary restraining orders or injunctions, to prevent a party from taking certain actions or to maintain the status quo.

4. Declaratory relief: The tribunal may issue a declaration regarding the rights and obligations of the parties without providing specific monetary or injunctive relief.

 

Can a judge change an arbitration decision?

The Arbitration and Conciliation Act, 1996 provides for limited judicial intervention in the arbitration process. Once an arbitral award is issued by the arbitral tribunal, it is considered final and binding on the parties, and the courts generally have a limited scope of review.

Under Section 34 of the Act, a party may apply to a court to set aside an arbitral award on specific grounds, such as the incapacity of a party, the invalidity of the arbitration agreement, lack of proper notice, or violation of public policy. The court's role in such cases is to determine whether the grounds for setting aside the award are met, rather than altering the decision itself.

However, it's important to note that there have been discussions and debates surrounding the extent of judicial interference in arbitration in India. In some instances, courts have been criticized for overstepping their authority and interfering with arbitral awards. The courts' approach and involvement in arbitration matters may vary based on the specific circumstances and judicial interpretation.

 

What authority does the court have to change the arbitration decision?

When addressing an application to set aside the award, the court would have the incidental or ancillary authority to alter the award. This power would be used to support the ultimate processes, namely the motion to set aside the award.

 

When may the arbitral award be challenged in court?

Section 37 of the Arbitration Act allows for an appeal from a decision upholding or rejecting the annulment of an arbitral award made pursuant to section 34.

 

When Award operates as res-judicata?

An arbitral award is a judgment that the same parties may use as precedent in any future legal action they may attempt to bring against one another. According to res judicata, the ruling is regarded as final and binding on the parties.

 

Is Res Judicata applicable in tribunals? 

The concepts of equity, justice, and good conscience serve as the cornerstones of the res judicata doctrine. The doctrine is applicable to all civil, criminal, and quasi-judicial actions before tribunals.

 

When res judicata does not apply?

When an interlocutory order is made on the prior lawsuit, the Res Judicata principle will not be applied. It’s because there is no finality to the decision and the parties receive immediate relief under an interlocutory order, which can also be changed by a subsequent application.

 

When an award be enforced?

It states that once the deadline for filing an application to set aside the award under Section 34 of the Act has passed, the award shall be enforced. As if it were a court order, this award must be enforced in accordance with the guidelines of the Code of Civil Procedure, 1908.

 

How can awards be enforced?

According to section 47 of the Arbitration Act, an award may be recognised and enforced based on an application submitted by the award holder. The application for the award’s recognition and execution under section 48 of the Act may be contested by the judgment debtor through written objections.

 

What steps must be taken to create and uphold an arbitral award?

The process of upholding an arbitration award in India is primarily governed by the Arbitration and Conciliation Act, 1996, and not the Code of Civil Procedure, 1908.

1. Issuance of the Award: After the completion of the arbitration proceedings, the arbitral tribunal issues the final arbitration award. The award contains the decision on the dispute and the rationale behind it.

2. Filing of the Award: The party seeking to enforce the award is required to file the original or a duly certified copy of the award with the appropriate court specified in the Act. This is typically done within a prescribed time frame after the award is received.

3. Setting Aside the Award: If a party wishes to challenge the validity of the award, they can file an application to set aside the award before the relevant court. This must be done within the specified time limit and on the grounds provided in Section 34 of the Arbitration and Conciliation Act.

4. Enforcement of the Award: If no application is made to set aside the award within the prescribed time or if the court rejects the application, the award becomes enforceable. The party seeking to enforce the award can apply to the court for the execution of the award.

5. Execution Proceedings: Once the award is deemed enforceable, the party can initiate execution proceedings in accordance with the relevant provisions of the Civil Procedure Code, 1908, for the enforcement of the award. The court may issue necessary orders for the execution of the award.

 

What orders are appealable?

In general, any order issued in accordance with the rules from which an appeal is expressly permitted by the rules; provided, however, that no appeal may be brought against any of the orders listed in subsection (ff) other than on the basis that the order should not have been made or that it should have been for the payment of a lower amount.

 

What orders are not appealable?

Orders that are typically considered interlocutory or procedural in nature are generally not appealable. These include orders that do not finally determine the rights or liabilities of the parties or are passed during the pendency of the main proceedings. However, there may be specific provisions in the applicable laws or rules that allow for an appeal against certain interlocutory orders. Section 104 and Order 43 Rule 1 contain a full list of appealable orders.

 

What is the difference between appealable and non-appealable orders?

Orders are of two kinds:

(1) Appealable orders – Orders against which an appeal lies.

(2) Non-appealable orders – Orders against which no appeal lies.

 

Whether a party has a right to appeal in Supreme Court?

Yes, parties in India have the right to appeal to the Supreme Court under certain circumstances. The right to appeal to the Supreme Court is primarily governed by Article 136 and Article 32 of the Constitution of India.

Article 136 grants the Supreme Court discretionary power to grant special leave to appeal from any judgment, decree, determination, sentence, or order passed by any court or tribunal in the territory of India. It means that parties can seek special permission from the Supreme Court to appeal a decision even if there is no automatic right of appeal.

Article 32 of the Constitution provides the right to move the Supreme Court directly for the enforcement of fundamental rights. If a party believes that their fundamental rights have been violated, they can approach the Supreme Court directly under Article 32 for appropriate relief.

 

Can there be a revision or review of an award?

Revision can be done after the case has been determined, but the review can only be done after the order has been issued. In contrast to the order awarding a revision, the decree granting a review is not subject to appeal. In Indian law, there is a provision for the review and revision of certain orders, but not for arbitral awards. Once an arbitral award is issued, it generally cannot be revised or reviewed by the same arbitral tribunal. The finality of the arbitral award is one of the fundamental principles of arbitration.

 

What is the difference between Review and Revision?

In Indian legal terminology, "review" refers to the process of re-examining a final order of a court or tribunal by the same court or tribunal to correct any errors apparent on the face of the record. On the other hand, "revision" refers to the power of a higher court to examine the legality, regularity, or propriety of an order passed by a lower court. The same court that issued the decree reviews it to make any necessary corrections to the record of the mistake or error. Only when the subordinate court’s ruling is in violation of the proper legal framework can a revision application be submitted to the High Court.

 

Who acts as an arbitrator’s umpire?

The presiding arbitrator, who is one of the arbitrators, is to be distinguished from an umpire, a third party chosen by the arbitrators to resolve disputes between the arbitrators. In a three-person arbitral tribunal, the range of duties for an umpire and the presiding arbitrator may vary.

 

What does arbitration cost submission mean?

A submission on costs also includes a party’s views as to how and by whom the costs should be paid, while a statement of costs only discloses the expenses incurred by a party, including the costs of its legal representation. The losing party is generally responsible for paying the arbitration expenses.

 

Does the Court Fees Act cover arbitration proceedings?

The Act and/or even Section 89 of the Code of Civil Procedure (CPC) do not require the payment of any court fees at the time that petitions are filed before the Arbitrator, regardless of the amount of the claim.

 

Whether the Limitation Act, 1963 shall apply to arbitrations as it applies to the proceedings in the court?

Section 43(1) of the Arbitration Act stipulates that the Limitation Act, 1963 “shall be applicable to arbitrations as it applies to the proceeding of the court”. This means that the time limits and provisions for filing claims and initiating arbitration proceedings are subject to the limitations prescribed in the Limitation Act.

 

What is the distinction between foreign and domestic awards?

A “domestic award” is an arbitral judgment given within the borders of a state. The term “foreign award” refers to an arbitral judgment that was made in another nation or that was proven to have been made abroad.

 

What is the meaning of the term commercial arbitration?

Commercial arbitration is a method of resolving disagreements by submitting them to an arbitrator who has been appointed by the parties and who will make a determination based on the facts and defenses put out before the arbitration tribunal.

When is a foreign award binding?

A foreign arbitral award is binding when it is recognized and enforced by the competent court in the country where enforcement is sought. The binding nature of a foreign award arises from international conventions, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which require member countries to recognize and enforce arbitral awards made in other member countries.

 

When can the enforcement of an arbitral award may be refused by the court?

The enforcement of an arbitral award may be refused by the court in certain circumstances, which can vary depending on the applicable laws and international conventions. Some common grounds for refusing enforcement include:

1. Invalidity of the arbitration agreement.

2. Lack of proper notice or inability to present a case.

3. The award deals with a matter beyond the scope of the arbitration agreement.

4. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or the law of the country where the arbitration took place.

5. The award has been set aside or suspended by a competent authority in the country where the award was made.

6. The subject matter of the dispute is not capable of arbitration under the law of the enforcing country.

 

When can the foreign award be enforced?

A foreign arbitral award can be enforced when it meets the requirements for enforcement under the law of the country where enforcement is sought. Typically, this involves submitting an application to the competent court and demonstrating that the award meets the necessary legal criteria for enforcement. The enforcing court will examine the validity of the award, compliance with due process, and any grounds for refusal of enforcement.

 

Whether judicial authority is empowered to refer parties to arbitration?

Yes, judicial authorities are often empowered to refer parties to arbitration. In many jurisdictions, including India, courts have the power to refer parties to arbitration if there is a valid arbitration agreement between the parties and one party seeks to initiate legal proceedings in breach of that agreement.

 

What is the role of conciliator?

A conciliator is a neutral third party who assists parties in resolving their disputes through the process of conciliation. The role of a conciliator is to facilitate communication, promote understanding, and assist the parties in reaching a mutually acceptable settlement. Unlike an arbitrator, a conciliator does not have the power to impose a binding decision on the parties but rather helps them explore options and find common ground for resolution.

 

What do you mean by the settlement agreement?

A settlement agreement, also known as a compromise agreement or a settlement agreement, is a legally binding contract reached between parties to a dispute to resolve their differences and avoid further litigation or arbitration. The settlement agreement typically sets out the terms and conditions agreed upon by the parties, including any obligations, rights, or remedies. Once the parties have reached a settlement agreement and it is duly executed, it becomes enforceable like any other contract.

 

What is the 'Negotiation’?

Negotiation is a process of discussion and communication between parties with the aim of reaching a mutually acceptable agreement or resolving a dispute. It involves the exchange of proposals, arguments, and compromises in order to find common ground and achieve a satisfactory outcome. Negotiation can take place in various contexts, including business transactions, contractual disputes, or diplomatic negotiations, and it can be conducted informally or through structured procedures.

 

What is Conciliation?

Conciliation is a voluntary and structured process of dispute resolution in which a neutral third party, known as a conciliator, assists the parties in reaching a mutually acceptable solution to their dispute. The conciliator facilitates communication, encourages dialogue, and helps the parties explore their interests and options for resolution. Unlike arbitration, the conciliator does not make a binding decision but instead facilitates the parties in reaching a settlement through mutual agreement.

 

What are the disputes that can be resolved through Arbitration?

 Arbitration is a flexible and widely recognized method of resolving various types of disputes. It can be used to resolve both domestic and international disputes across a broad range of legal matters, including:

1. Commercial disputes: Such as contract disputes, breach of contract claims, commercial lease disputes, partnership disputes, and business transaction disputes.

2. Construction disputes: Including disputes arising from construction contracts, delays, defects, payment issues, and interpretation of contractual provisions.

3. Labor and employment disputes: Such as employment contract disputes, wrongful termination claims, discrimination claims, and disputes related to collective bargaining agreements.

4. Intellectual property disputes: Including disputes over patents, trademarks, copyrights, trade secrets, and licensing agreements.

5. International trade disputes: Such as disputes arising from international sale of goods contracts, distribution agreements, and trade-related contractual disputes.

6. Consumer disputes: Including disputes between consumers and businesses regarding product defects, warranties, consumer contracts, and services provided.

Investment disputes: Arising from investment agreements, bilateral investment treaties (BITs), and disputes between investors and states.

7. Investment disputes: Arising from investment agreements, bilateral investment treaties (BITs), and disputes between investors and states.

 

Which cases are subject to arbitration?

The parties add an arbitration clause to the applicable contract in the event that any future disputes arise from the agreement. Through a submission agreement between the parties, a current dispute may be brought to arbitration. A party cannot leave the arbitration process on their own, unlike in mediation.

Additionally, current disputes can be brought to arbitration through a submission agreement between the parties. It's important to note that a party cannot unilaterally withdraw from the arbitration process, unlike in mediation.

 

What conflicts are exempt from arbitration under Indian law?

Non-arbitrable problems include those resulting from crimes, divorce, will disputes, and tenancy issues covered by specific legislation where tenants have legal protection.

 

What are the different kinds of arbitrations found in India?

Types of Arbitration in India

1- Domestic Arbitration.

2- International Arbitration.

4- Institutional Arbitration.

5- Ad-Hoc Arbitration.

6- Fast Track Arbitration.

7- Contractual Arbitration.

8- Statutory Arbitration.

9- Foreign Arbitration.

 

Are Labour disputes arbitrable?

It is crucial to keep in mind that labour and industrial disputes are not inherently non-arbitrable; rather, they can only be arbitrated in accordance with the terms and to the degree provided by the Industrial Disputes Act of 1947.

 

Where is arbitration mostly used?

In contrast to mediation and conciliation, which are frequently used to resolve labour conflicts between management and labour unions, arbitration is most frequently employed to resolve commercial problems.

 

What are the advantages of arbitration agreement?

The Advantages of Arbitration:

1.  Efficient and Flexible: Quicker Resolution, Easier to schedule.

2.  Less Complicated: Simplified rules of evidence and procedure.

3.  Privacy: Keep it out of the public eye.

4.  Impartiality: Choosing the “judge”.

5.  Usually less expensive.

6.  Finality: The end of the dispute.

 

Can arbitration be used in criminal cases?

Arbitration is primarily used in civil matters and is not commonly applied in criminal cases. Criminal cases involve offenses against the state and public interest, and the resolution of such cases is typically handled through the criminal justice system and courts.

 

Are land conflicts subject to arbitration?

Land conflicts can be subject to arbitration if the parties involved agree to resolve their dispute through arbitration. However, certain land disputes involving public rights, issues of title, or matters regulated by specific land laws may be excluded from arbitration by law or public policy.

 

Are costs recoverable in arbitration?

Unlike litigation where cost recovery rates are significantly poorer a successful party in arbitration can expect to recover a very high proportion of its legal spend. The ability to recover costs in arbitration depends on the arbitration rules, the terms of the arbitration agreement, and the applicable law.

 

What is Section 7 of arbitration?

Section 7 of the Arbitration and Conciliation Act, 1996 defines an "arbitration agreement." According to this section, an arbitration agreement is an agreement between the parties to submit all or certain disputes arising from a defined legal relationship, whether contractual or not, to arbitration. The section provides the basic definition and scope of an arbitration agreement under the Act.

 

What is Section 10 of the arbitration Act?

Section 10 of the Arbitration and Conciliation Act, 1996 deals with the composition of the arbitral tribunal, it says that-

 (1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.

 (2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator.

 

What is Section 5 of arbitration?

Section 5 of the Arbitration and Conciliation Act, 1996 deals with the authority of appointed arbitrators or umpires. According to this section, the authority of appointed arbitrator or umpire irrevocable except by leave of Court. The authority of an appointed arbitrator or umpire shall not be revocable except with the- leave of the Court, unless a contrary Intention is expressed in the arbitration agreement.

 

How does the Arbitration Act's Section 77 work?

The use of arbitral and legal proceedings is discussed in Section 77. While conciliation is taking place, the parties shall not commence any arbitration or legal action over the dispute. Only if it becomes necessary to protect its rights can the arbitral or judicial actions be started.

 

Can an arbitrator impose penalties?

Arbitrators generally do not have the authority to impose penalties in the same manner as a court. The role of an arbitrator is to resolve disputes and make binding decisions based on the evidence and arguments presented by the parties. However, under certain circumstances and as provided by applicable laws or arbitration rules, an arbitrator may have the power to award monetary damages or other remedies to the prevailing party. The extent of an arbitrator's powers and the remedies they can grant are determined by the arbitration agreement, applicable laws, and the rules governing the arbitration process.

 

What does arbitration's Section 8 entail?

According to Section 8, the party seeking arbitration just needs to hint at the arbitration provision to the court before filing the initial declaration. After that, the judicial authority must compel the parties to submit to arbitration.

 

What is Section 36 of arbitration?

Section 36 of the Arbitration and Conciliation Act lays that Enforcement of an arbitral award in a Domestic Arbitration is to be carried out in the same manner as done in a decree passed by the court.

 

Which is better arbitration or conciliation?

Arbitration is generally considered more formal and structured, similar to a court proceeding. It involves the submission of the dispute to one or more arbitrators who make a binding decision based on the evidence and arguments presented. Arbitration is often chosen when parties seek a final and enforceable decision, especially in complex commercial disputes.

On the other hand, conciliation is a less formal and more flexible process aimed at facilitating communication and reaching a mutually acceptable resolution. A conciliator acts as a facilitator, assisting the parties in exploring options and finding common ground. Conciliation is often preferred when parties wish to maintain a cooperative relationship and have more control over the outcome.

Ultimately, the choice between arbitration and conciliation should be based on the nature of the dispute, the desired level of formality, the need for a binding decision, and the willingness of the parties to collaborate in reaching a resolution.

 

What does Section 62 of the Arbitration Act entail?

A conciliation proceeding may be started under Section 62. All that is necessary for conciliation to be used as a means of dispute resolution is a proposal in writing and acceptance of that proposal.

 

What arbitration court has the best record?

One of the prominent and highly regarded arbitration institutions is the International Court of Arbitration (ICA) which is part of the International Chamber of Commerce (ICC). The ICA is known for its expertise in commercial arbitration and its extensive experience in handling complex international disputes.

 

What does Section 49 of the Arbitration Act mean?

According to Section 49, the award will be regarded as a decree of that Court if the Court determines that the foreign award is enforceable under this Chapter.

 

What is Section 39 of arbitration?

Section 39 of the Arbitration and Conciliation Act, 1996 deals with lien i.e a right to keep possession of property belonging to another person until a debt owed by that person is discharged, on arbitral awards.

 

What is the main issue with arbitration?

Lack of Consistency: Because there are no established arbitration norms, it is challenging to identify consistency. An arbitrator might be biased, which occasionally happens in contracts that require arbitration.

 

Why doesn't arbitration work in India?

In India, courts frequently meddle and disregard the autonomy of the parties. The expectation that the award will be subject to an appeal or review by higher courts does not exactly inspire confidence among the parties to a dispute. These issues discourage parties from choosing arbitration.

Furthermore, there have been instances where courts in India have set aside arbitral awards on various grounds, including public policy considerations. This has created uncertainty and eroded confidence in the arbitration system. The lack of timely enforcement of arbitral awards has also been a concern, as parties may face difficulties in effectively enforcing their awards and obtaining the desired relief.

 

How successful is arbitration?

Due to its speed, cost-effectiveness, and increased procedural flexibility, arbitration is typically seen as a more effective process than litigation. The arbiter is frequently chosen by the parties, who also have some control over other aspects of the arbitration process. Arbitration awards are typically enforceable and binding on the parties, providing a final resolution to the dispute. All these factors combined make arbitration a successful dispute resolution mechanism.

 

What does the Indian Arbitration Act entail?

The Indian Arbitration Act refers to the Arbitration and Conciliation Act, 1996, which is the primary legislation governing arbitration in India. It is an Act to define the law pertaining to conciliation and for things associated therewith or incidental thereto, as well as to consolidate and revise the law dealing to domestic arbitration, international commercial arbitration, and enforcement of foreign arbitral awards.

 

What is the date of enforcement of Arbitration and Conciliation Act?

The Act was enforced on 22nd August 1996 but the ordinance was promulgated by the President on 16th January 1996.

 

Is Arbitration and Conciliation Act, 1996 repealed?

On March 11, 2021, the ordinance was repealed and replaced by the Arbitration Conciliation Act (Amendment) of 2021 (hereinafter called “2021 Amendment”).

 

Who is the co-founder of ADR?

Prof. Pankaj Chandra (Founder) has a Bachelors degree in Technology from Benaras Hindu University Institute of Technology, and a Ph. D.

 

Who coined the term ADR?

Frank Sander is credited with coining the term 'alternative dispute resolution' in his address to the 'Pound Conference' in 1976.

 

What is the oldest form of ADR?

Arbitration, the oldest and most adversarial form of ADR, is now a compulsory prerequisite to litigation in many countries. This process predates modern court systems and continues to be widely utilized today.

 

Who is the ADR ombudsman?

ADR may be conducted or facilitated by the Office of the Ombudsperson. If either side objects to the Ombudsperson, they can help the parties choose a neutral ADR practitioner by accepting the complaint and sending it to the other party.

 

What are main functions of arbitration?

Matters coming under the purview of the Arbitration and Conciliation Act, 1996.

●   Power to administer an oath to the parties and witnesses.

●   Power to take interim measures.

●   Power to proceed to ex-parte.

●   Power to appoint an expert.

●   Power to make awards.

●   Duties to be independent and impartial.

 

Why is it called arbitration?

Arbitration is called so because it involves the use of an arbiter or a neutral third party to resolve a dispute. The term "arbitration" is derived from the Latin word "arbitrari," which means "to judge." In the context of dispute resolution, arbitration refers to the process in which the parties submit their dispute to an arbitrator or a panel of arbitrators, who act as the judges and make a binding decision on the matter. The name "arbitration" reflects the role of the arbitrator in judging the dispute and rendering a decision.

 

What is a valid arbitration contract?

A valid arbitration agreement must, among other things, reflect the parties' deliberate, voluntary, and free decision to pursue arbitration rather than alternative dispute resolution options, such as state courts. Arbitration is only possible if both parties agree to have their dispute arbitrated.

 

 What are the five methods of dispute resolution?

There are five methods of Dispute resolution as given below-

1.  Litigation

2.  Arbitration

3.  Mediation

4.  Conciliation

5.  Negotiation

 

What is Section 28 of arbitration?

Section 28 of the Arbitration and Conciliation Act pertains to the power of the court to enlarge the time for making an award. It states that the court, if it deems appropriate, has the authority to extend the time for making an award, whether the original time has expired or not, and whether the award has been made or not.

 

What is Section 27 of the Arbitration and Conciliation Act cases?

Section 27 of the Arbitration and Conciliation Act deals with the power of the arbitral tribunal or a party with the approval of the tribunal to seek the assistance of the court in taking evidence. The provision allows the arbitral tribunal to apply to the court for assistance in conducting the necessary evidentiary proceedings, such as summoning witnesses, ordering the production of documents, or taking testimony under oath.

 

Is the arbitration clause still enforceable even if the primary contract is void?

An arbitration clause must exist completely separately from the contract. The arbitration agreement must not be invalidated by any amendment, extension, or revocation of the contract, or by the invalidity or unenforceability of the contract. The arbitral panel and the appropriate court will evaluate whether the arbitration agreement is valid.

 

What happens if one party refuses to arbitrate disputes and instead files a lawsuit?

If one party refuses to arbitrate disputes as required by an arbitration agreement and chooses to file a lawsuit instead, the other party can raise the issue of the arbitration agreement in court. The court will then determine whether the arbitration agreement is valid and enforceable. If the court finds the arbitration agreement to be valid and enforceable, it will dismiss the lawsuit and direct the parties to pursue arbitration as per their agreement. However, if the court finds the arbitration agreement to be invalid or incapable of being performed, it may retain jurisdiction over the case and allow the lawsuit to proceed.

 

What is a tribunal?

A tribunal is another term for the arbitrator(s) chosen to resolve a dispute. The arbitrator in charge of the panel of arbitrators and frequently the day-to-day management of the arbitration is referred to as the chair or presiding arbitrator when three or more arbitrators are selected.

 

Is it vital for an agreement to have an arbitration clause, or should I just sign it without it?

The arbitration clause is a crucial clause that you should not ignore. When a disagreement emerges, the arbitration's costs will be a significant element. Since these costs depend on the arbitration's location, the tribunal's forum, the applicable law, and many other factors, it is crucial to carefully plan and design any arbitration clauses or agreements.

 

How do you enter into an arbitration agreement?

An arbitration agreement can take the shape of a separate agreement or an arbitration clause in a contract. An arbitration agreement must be in writing.

The requirement that an arbitration agreement be in writing has been met;

1.  If the parties have signed the document.

2.  If the Arbitration is entered into through the exchange of letters, telex, telegrams, or other forms of communication that serve as a record of the agreement; or

3.  Through the exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

 

Does the arbitral tribunal have to provide a rendition of accounts?

If required by the arbitration agreement then the arbitral tribunal must render accounts before accepting the deposits made by the parties in accordance with its call. The arbitral tribunal shall render accounts of the deposits received to the parties at the conclusion of the arbitration, that is, between the time the arbitration is terminated with the parties' permission and the rendering of the award.

 

 

Whether the mandate of arbitrator is terminated on the death of any party?

The language of S. 40(2) is quite plain and simple and does not seem to be open to two interpretations. The mandate of arbitrator does not terminate on the death of any party. The arbitrator can continue with the arbitration process and issue an award based on the evidence and arguments presented, even if one of the parties has passed away.

 

Whether a judge has the authority to refer a case to arbitration?

Yes. S. 45 states that regardless of anything in Part I or the Code of Civil Procedure, 1908, a judicial authority shall, at the request of one of the parties or any party claiming under through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative, or incapable of being performed.

 

Whether the validity of foreign award can be challenged on the ground that it is against the provisions of the foreign law or Indian law or the public policy of India?

Under the Arbitration and Conciliation Act, 1996, the validity of a foreign award cannot be challenged on the ground that it is against the provisions of the foreign law or Indian law or the public policy of India. It has been decided that in cases where the arbitration agreement was legal under the applicable law and the award is final in the foreign country where it was made, it cannot be deemed bad or invalid simply because the arbitrator followed the rules of the Act, which does not apply in that country, in making the award. Invoking any Indian legislation or Indian public policy will have no bearing on the legitimacy of the award.

 

What do you mean by administrative assistance?

Administrative assistance, as defined under Section 68 of the Arbitration and Conciliation Act, refers to the arrangement made by the parties or the conciliator with the consent of the parties for facilitating the conduct of the conciliation proceedings. This assistance can be provided by a suitable institution or person who can help with administrative tasks such as scheduling meetings, managing communication, organizing documents, or providing logistical support. The purpose of administrative assistance is to ensure the smooth functioning of the conciliation process.

 

What is the status and effect of settlement agreement?

According to Section 74 of the Arbitration and Conciliation Act, a settlement agreement reached through conciliation has the same status and effect as if it is an arbitral award on agreed terms rendered by an arbitral tribunal under Section 30. This means that the settlement agreement is binding on the parties and can be enforced as if it is a court decree. It carries the same legal weight and finality as an arbitral award, providing a legally enforceable resolution to the dispute.

 

What situations would the conciliation proceedings allow for the use of arbitral or judicial proceedings?

According to S. 77, parties are prohibited from starting arbitral or judicial proceedings in relation to a dispute that is the focus of the conciliation proceedings, with the exception of situations where the initiating party believes that such proceedings are necessary to protect his rights.

 

What types of dispute settlement procedures are accepted in India?

The three primary methods of alternative dispute resolution that are accepted in all democratic nations of the world are arbitration, conciliation, and mediation. In addition to this, the ADR system and Adalat are both widely used in India.

 

What is a MEDOLA?

The Medola process begins when the parties are unable to resolve their differences through mediation. In this approach, the mediator fills the role of the arbiter. He then hears the dispute as an impartial third party.

 

What is Mini-trial?

It is a non-binding procedure in which the summaries of the disputing parties are presented to enable them to assess the strengths, weaknesses and prospects of their cases. The neutral advisor assists the parties in reaching at a negotiated settlement.

 

What is ICADR?

The International Centre for Alternative Dispute Resolution, or ICADR, was founded by distinguished individuals from the legal, administrative, and business worlds. This institution was founded in Delhi on May 31, 1995. This centre aims to increase the use of ADR systems for resolving public conflicts across the nation.

 

What are the primary goals of ICADR? 

The following are the ICADR's primary goals: (i) To spread awareness of, encourage, and promote the use of various forms of ADR in local and international dispute resolution.

(ii) To offer venues, administrative services, and other support services for conducting arbitration, mini-trials, and conciliation proceedings.

(iii) To encourage changes to the conflict resolution process and its healthy growth to meet the community's social, economic, and other requirements.

(iv) To select arbitrators, mediators, conciliators, etc. as needed by the parties. 

Is there any appeal provision?

If you are not happy with the arbitrator’s decision and you believe that the arbitrator was biased or has been given an award under some undue influence, or the decision is not fair (because of some substantial reason that you can prove); in such a case, you can ask your arbitrator to reconsider the decision or else you can appeal in the court of law.