PRESENTATION

ARBITRATION MECHANISM IN INDIAMANSI DHINGRA

ON

•Arbitration is the mechanism to settle disputes between parties to a contract, determined in a quasi-judicial manner.

•The Arbitration and Conciliation Act 1996 provides legal frame work for settlement of disputes by mutual settlement out side the court.

•Central Government may make rules for carrying out the provisions of this act subjected to the approval of the Parliament.

•Arbitration is an arrangement agreed upon by the parties concerned to refer the disputes to a third party for settlement.

INTRODUCTION

•The arbitration tribunal can be a panel of arbitrators or a sole individual.

•Any written document or a clause in a contract for referring the dispute to arbitration shall be an arbitration agreement.

•The parties to the contract will decide the constitution of arbitration tribunal and mode of appointment as laid down in the contract agreement.

•The arbitrator has to be appointed within 30 days of such request by any party.

•In case of failure to comply the above, the Chief Justice of the High Court shall appoint suitable arbitrator as per the request of the party.

•If the appointed arbitrator fails to perform, the court may replace him by a suitable arbitrator as per the request of the party.

APPOINTMENT OF ARBITRATOR

•The appointed arbitrator shall disclose any circumstances likely to occur to give doubt about his impartiality.

•The party to the dispute also can challenge the appointment of the arbitrator on the above count.

•The mandate of an arbitrator ends without proceedings starts or in the course of proceedings when–He is not able to perform.–He withdraws.–Parties agrees to terminate him.

•Proceedings of the arbitration commences from the date of receipt of communication by the respondents, for reference of the matter to the arbitration.

•The parties shall be treated equally and shall be given full opportunity to present their case.

•The procedure, place of hearing, time limit for production of documents / evidence etc can be agreed upon by the parties or otherwise decided by the arbitrator.

PROCEEDINGS

•The arbitral tribunal may appoint an expert/institution to examine and to give expert report.

•If the respondent fails to communicate his defense or fails to appear for oral hearing / fails to produce documents, tribunal shall not treat it as admission by the defaulting party but proceed with the evidences before it and make award.  

•The tribunal may direct the parties to deposit by the each party and also decides the cost payable to one party by the other. 

•An amount towards cost etc. as decided by it during the course of proceedings.

•The tribunal shall fix the cost of arbitration, the fee of arbitration, for witness, administrative charges, fees for experts etc.

ARBITRATION COST

•Arbitration award will be decided as per the substantive law in force in India taking into account the terms of contract and usage of trade.

•If the parties arrive at a settlement agreement and request the tribunal to give award accordingly and if tribunal has no objection it may give award accordingly which will have the same effect of the award. 

ARBITRATION AWARD

•The arbitral award is issued under the signature of all or majority of arbitrators on the basis of the decision or stating it as mutually agreed upon by the parties. Signed copy shall be delivered to all parties.

•The award is binding on all the parties. Award is enforceable as if it were a decree of the Court.  

CONTINUED..

While it is possible to challenge an award made by an arbitrator in court, the court will generally only overturn such a decision in rare cases. For the court to take such an action, it would be necessary to prove that:•The arbitrator had a serious conflict of interest.•Fraud was committed by any party during the arbitration, and that it influenced the decision.•The award was not final, and therefore there was no conclusion to the matter.•The award was somehow outside the scope of the arbitration agreement

CHALLENGING AN ARBITRATION AWARD

S.NO

Section

Pre-amended position

Post-amended position

1 Sec.2(s) Supervisors drawing wages not exceedingRs.1600/-p.m are coming within the definition of workmen.

Now, Supervisors drawing wages not exceeding Rs.10000/-p.m are coming within the definition of workmen. 

2 Sec.11 The present section does not refer to the manner of execution of awards made by Labour Court/ Industrial Tribunal.

New subsections (9) &(10) have been added to Section 11 where by the Labour Court or Industrial Tribunal shall transmit any award or order or settlement arrived before it to a civil court which will execute the same as if it were a decree passed by it.

AMENDMENTS

3 Sec.2A Under present provision, an individual dispute raised a workman who is retrenched or dismissed can be adjudicated by the Labour Court/Industrial Tribunal only when it is referred by the Government on recipt of report from Conciliation Officer.

After amendment, a new sub-sections (2)&(3) have been added which enable the individual workman who is retrenched or dismissed and who raises the dispute before conciliation officer, can now directly make an application to the Labour Court/industrial Tribunal for adjudication of his dispute after a lapse of 45 days from the date of making an application to the conciliation officer.(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).”. 

4 Chapter IIB-Sec.9(C)

The Present Sec. 9(C) does not precisely give the constitution of the grievance redressal mechanism and the procedure. This Section has been substituted by new Sec.9(C).

The new Section 9(C) provides –i)Composition of the Grievance Redressal Committee.ii)Fixes a thirty day time limit for redressal of the grievance. iii)Provides for appeal to the employer by the workman aggrieved by the decision of the committee.

CASE SETTLED IN ARBITRATION

Founder & Chairman: Naresh Goyal

Jet Airways faced Two Major industrial crisis during its lifetime:

1900 Employees Sacked and then Reinstated in 2008. The Pilots Revolt 2009

According to CAPA (Center for Asia Pacific Aviation), buying Sahara was a big strategic mistake by Jet Airways.

Jet had been constantly incurring losses since 2007-08.

In 2008, Naresh Goyal entered into an operational tie-up with its rival Vijay Mallya’s Kingfisher.

Jet sacked 1,900 cabin crew members in October 2008, all probationary and temporary workers, across all categories and departments.

The young pilots got insecure seeing the previous scenario and led to formation of National Aviators Guild the NAG on 24th July, 2009; registered by the Regional Labour Commissioner.

On July 31, 2009, the two senior pilots of Jet Airways, who were both office-bearers of NAG, were dismissed by a single-line e-mail stating that their services were terminated with immediate effect and no reasons were assigned for the same.

NAG issued a strike notice on August 24, 2009.

The management obtained an ex parte order from the Bombay High Court by virtue of Sections 22 and 23 of the Industrial Disputes Act restraining the NAG from striking.

Total of 500 pilots reported sick and went unanimously on leave.

During the 14 days of strike continued causing a loss of estimated Rs.15 Cr per day and hardship to innumerable customers due to flight cancelling.

The NAG withdrew the strike notice on the evening of September 7, 2009

The matter was yet to be resolved as the pilots were still agitated on their unfulfilled need.

The negotiations ended with the formation of a grievance committee consisting of both pilots and administration members to hear such cases.

It was decided that a committee to look into the coordination between the pilots and the management would be formed.

THANK YOU..