23412786 arbitration and conciliation
TRANSCRIPT
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THE ARBITRATION ANDCONCILIATION ACT, 1996
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Why ADRs
Resolutions of disputes through judicial
process is very time consuming and costly
in terms of time, money and energy.Litigations really weakens both the parties
and hence is not a business-based solution.
And so we need Alternate Dispute
Resolution
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Methods of ADR
Negotiation
Mediation Conciliation
Arbitration
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Arbitration Defined :
Halsburys LawAn Arbitration is the reference of
a dispute between not less than
two parties, for determination,after hearing both sides in a
judicial manner, by a person or
persons other than a court of
competent jurisdiction.
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Different parts of the Act
Part I Domestic arbitration
Part II Enforcement of foreign awards.
Part III Conciliation procedures.
Part IV Supplementary provisions
First Schedule Convention on recognition and enforcement of
foreign arbitral award as New York conventionSecond Schedule Protocol on Arbitration clauses.
Third Schedule - Convention on The execution of foreign arbitral award asGeneva convention
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Amendment of the law
U. N. commission on international
trade law.(UNCITRAL) --1985 ---the
uniformity in the law of Arb proceduresand the specific needs of the
International Commercial Arb.
Practice.Rules for Conciliation added.
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Advantages of Arbitration
Arbitration affords the partiesa choice of the law & a choice
of the judges that they dowant & more important toreject the law which and to
reject the particular judgewhom they do not want.Binding dispute settlement
mechanism
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Objectives of Amendment
Minimise the supervisory role of the Courts
Arbitral Tribunal to give reasons for Award
Permit Arb. Tribunal to use
Mediation,Conciliation, other procedures Arbitral Award enforced as if it were a decree
of the court
Conciliation proceedings --same status and
effect as an Arbitral Award Foreign Awards
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Expectations from Arbitration
An impartial, and expert, tribunal or arbitratorwill decide the case.
The parties can select arbitrators with expertise
in the issues and professionals who can beexpected to reach reasonable decisions foundedupon a mixture of law and industry custom.
Privacy and confidentiality in contrast tolitigation in public forums.
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Benefits for the Parties
1.Choose the arbitrator(s); 2. Choose the issues to be arbitrated;
3. Choose the place of arbitration;
4. Choose the substantive law that will control the
merits of the dispute; 5. Choose the procedural rules;
6. Choose the schedule;
7. Choose exhibits, witnesses and other evidence to beadduced
including arranging for tests and site visits;
8. Choose the form of relief to be awarded;
9. Choose the form of the award; and
10. Agree to facilitate enforcement of the award.
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In a country signatory to the New York
Convention on the Recognition andEnforcement of Foreign Arbitral Awards
(the New York Convention) the Award
may be enforced relatively ( more than120 signatory countries)
No such all-encompassing ConventionorTreaty or legal regime applies to
judgments rendered in national courts.
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ADVANTAGES OF
ARBITRATIONTechnical matter : appropriate special
qualifications of the Arbitrator.
Speedier than a court case
saving in the costsunwanted publicity can be avoided
Convenience of the parties as to time and
placeArb. Can view subject at any reasonable
time
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TERMS OF AN ARBITRATION
AGREEMENT
Insert lawful terms as parties wish
terms must be stated with certainty
powers of Arbitrator to be clearly stated questions to be determined by Arb .
Any matters for exclusion of reference
Any technical or legal bar to the partiesshould be inserted
Composition of Arbitral Tribunal
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Disputes inappropriate for resolution by
arbitration
French law: bankruptcy matters are inarbitrable. India:
Matrimonial matters, like divorce or restitution of conjugal rights;
matters relating to guardianship of a minor or other person underdisability;
testamentary matters, for example, questions about the validity ofa will;
insolvency matters, such as adjudication of a person as aninsolvent;
criminal proceedings;
questions relating to charities or charitable trusts;
matters falling within the purview of the Monopolies and RestrictiveTrade Practices Act; dissolution or winding up of a company.
matters involving morality, status and public policy cannot bereferred to arbitration.
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THE ARBITRATION AND CONCILIATION
(AMENDMENT) BILL, 2003
to enable the judicial authority to decide jurisdictionalissues,
to empower the Courts to make reference toarbitration in case all the parties to a legal proceeding
enter into an arbitration agreement to resolve theirdisputes during the pendency of such proceedingbefore it;
to provide for the appointment of arbitrators by the
Chief Justice of the Supreme Court or the High Courtto prevent writ petitions being filed on the basis that itis an administrative order of the Chief Justice.
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THE ARBITRATION AND CONCILIATION
(AMENDMENT) BILL, 2003-2
where the place of arbitration under Part I of is inIndia, between Indian parties or an internationalarbitration Indian law will apply.
completion of arbitrations within one year; at theend of one year the Court will fix up a timeschedule for completion of the proceedings untilthe award is passed.
empower the arbitral tribunal to pass peremptoryorders for implementation of interlocutory ordersand in case they are not implemented, to enablethe Court to order costs or pass other orders indefault.
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THE ARBITRATION AND CONCILIATION
(AMENDMENT) BILL, 2003-3
provide for the Arbitration Division in the High
Courts, for the speedy enforcement of awards
provide provisions for speeding up andcompleting all arbitrations
to introduce a new Chapter XI relating to single
member fast track arbitral tribunal and award
will have to be pronounced within six monthsand to specify procedure therefore in a new
Schedule.
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Appointment of an Arbitrator
Section -11:
(1) person of any nationality
(2) parties to agree on a procedure for appointmentof Arb.
Failing agreement as in above -- the two Arbshall appoint a third Arb who shall act as thepresiding Arb---Umpire.
30 days
failing which CJ or any person or institutiondesignated by him
Sec. 16--may rule on its own jurisdiction
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Procedure by Arbitrator
Delivery of points of claim and
defence--similar to pleadings
particulars of claim and counterclaim
discovery and inspection of documents
inspection of property and things by (1)
arbitrator (2) parties fixing the time and place of hearing
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Procedure
Claimant (or advocate) opens his case---also defence to counterclaim
Claimant calls and examines his witness--
who may be cross -examined by therespondent
Claimant may re-examine him
Respondent opens his case
Respondent calls and examines his witness-may be cross examined by the claimant
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If witness is cross examined the Respondent mayre-examine him
Respondent addresses the Arbitrator
The claimant replies
Sec.19 ---not bound by CPC.1908 or the IEA
1872---Freedom to agree on the procedure to befollowed
Sec.20 ----place of arb
Evidence--Oral , Documentary, Heresay,Primary
Evidence, Secondary Evidence
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Sec. 34--court can set aside Arb. Award
1. Incapacity of the parties.
2. Not valid under law.
3. No proper notice.4. Beyond the scope of the matter
decided to be referred to Arb.
5. Composition of the Arb. Tribunaldefective.
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No second appeal will lie from an order passsed in
an appeal:: right to appeal to the S.C. is notaffected Sec.--37
Mandatory for judicial authority to refer to Arb.Sec.---45
Limitation act 1963 shall apply to proceedings inArb. Sec.---43
Time commenced --on the date on which therequest for the dispute to be referred to arb isreceived by the respondent Sec ---21
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Content of Arb. Award
Sec. 31---
(1) shall be made in writing& signed by the Arb.
Tribunal
(3) shall state the reasons , unless
(a) parties have agreed no reasons be given(b)
award under agreed terms under Sec. 30
(4) state date and place
(5) signed copy delivered to each party
(6) interim award
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(7)(a) payment of money: include in the sum
for which award is made ---interest to paidfrom date on which cause of action arose
& the date on which award is made
(b) provision of 18% interest from the date of
award to the date of payment------unlessthe award otherwise directs.
Award does not transfer a property : parties
are directed to execute conveyance or other
wise make a transfer of the property in dispute