Arbitration FAQs Final 24.01.2020

Q-1- Discuss in details legal aid movements.
Ans:-
Legal service in its literal sense means help, assistance, or free service in the field of
law. Previously the word legal- aid was used in place of legal- service but the Apex
Court of India has time and again asserted that legal aid is not a charity but a
paramount duty of a welfare State. Now legal assistance from State can be claimed
as a matter of right, therefore, the word legal- service is being used in place of legal-
aid.
Legal Services' are of two types:
A) Pre-litigation Legal Services and
B) Post-litigation Legal Services
Pre-litigation Legal Services It is rightly said that, prevention is better than cure. In
these days, the number of litigation is increasing day by day, which is very
dangerous for smooth administration of justice.
So far, emphasis was given only on post-litigation • assistance or help but now it is
being realised that pre-litigation legal services are more useful than post-litigation
legal services.
Pre-litigation legal services include:
i) Legal education
ii) Legal advice
iii) Legal Awareness
iv) Pre-litigation settlement etc.
In order to provide pre-litigation services, the voluntary organisations have been
encouraged and boosted by financial support from the State.
In law colleges and law faculties in the Universities, Legal aid clinics have to be
established.
Post-Litigation Legal Services Traditionally legal aid has been provided at post-
litigation stage.
Post litigation legal services include – appointment of lawyer for indigent,
reimbursement of process fee, witnesses' expenditure, court fee etc. by the State.
The movement for free legal aid to the poor in India is not a sudden fanciful idea of
few utopian philosophers. We can trace the legal aid Philosophy even in ancient
Indian Society, which is known to have systematically commenced with Vedic age.
It includes the following subdivisions:
1. Vedic Period
2. Muslim Period
3. Vikramaditya Period
4. British Period
5. Post- independence period
Arbitration and Alternate Dispute Resolution, LLB 3rd Year, 2ndSemester, (Musahib)
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6. Post -Constitution period
7. Reports of several committees on legal aid
8. 42nd Amendment to the Constitution, 1976 and
9. Criminal Procedure Amendment Act, 2005
1. Vedic Period:
 Rig Veda the earliest of the four Vedas does contain such elements of legal
aid or social aid and refer to the need for saving people from `rakshas' and
violent people, procuring strength for such protection alongside praying the
Almighty to bless those who donate.
 Rig Veda provides for mustering strength, including monetary assistance, i.e.
'Dann' for extending aid and assistance to those fearing or facing the attacks.
2. Muslim Period:
 During the reign of Shahjahan and Aurangzeb, the state vakils were directed
to give advice free of charge to the poor.
 Such state lawyer known as vakil — e - sarkar4 or vakil —e-sharai were
whole time and appointed by Chief Qazi of the province or sometimes by the
Chief Justice, the Qazi-ul-Quzat.
3. Vikramaditya Period
 During the time of Vikramaditya period a judge of the highest court was paid
five thousand silver coins and was provided with a free furnished home.
 There was an evolved law of pleadings very similar to the present one.
 Jurists of the Stature of Manu, Yagnyavalk, Jairnini, Brahaspati and Narad did
adorn the legal panorama of this country in its golden age of history but the
common man was not required to spend even a pittance for seeking justice.
 Through the village and community panchayats' justice reached the doors of
the poorest sufferers.
4. British Period
 In India, in the olden days Justice was rendered very cheaply without charging
any court fee or stamp duty.
 Pre- British India had practiced "Constitutional monarchy" and the days of the
Hindu and Muslim rulers had witnessed unsophisticated methodology of
dispensing justice to the poor, inexpensively and immediately.
 In short, justice to the citizens, high and low has been an Indian creed of long
ago.
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 British brought with them an expensive system of Administration of justice,
which has made Legal Aid to poor an obvious necessity.
The Civil Procedure Code, 1908

 Order 33 of the Civil Procedure Code provides for filing of suits by indigent
persons.
 It enables persons who are too poor to pay court fees to institute suits without
payment of requisite court fees.
Bombay Legal Aid Society, 1924

 For providing Legal Aid in the pre-independence phase the Bombay Legal Aid
Society (BLAS) was formed in 1924.
 The main object of the society is making justice accessible to the poor and
reducing the cost of litigation, providing lawyers to the poor on the basis of
need, rendering Legal Aid gratuitously and to make provision for payment of
court fees.
 To qualify for legal aid, an applicant had to satisfy the means test and had to
have a bonafide case.
5. Post- independence period

Justice Bhagwati Committee
 On 23rd March 1949, Government of Bombay appointed a committee under
chairmanship of Justice N.H. Bhagwati.
 The Committee has given various recommendation regarding free legal aid
and also provided that Legal Aid includes
a) Court fees b) Process fees c) Diets of witnesses, d) cost of certified
copies e) Pleaders fee etc.
Trevor Harries Committee
 Trevor Harries Committee in West Bengal recommended a three - tier
institutional structure for delivery of Legal Aid Services.
 Legal representation at state expense however was available only where an
indigent accused was being tried for an offence punishable with a capital
sentence.
 This was not a statutory right but made available at the discretion of the court.
6. Post -Constitution period

 Indian Constitution which came into force in 1950 sets out social justice,
liberty and equality of status as its main aim. The Fundamental Rights along
with the Directive Principles of State Policy aims to create an egalitarian social
order where justice dwells in all walks of life be it, social, political or economic.
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Fundamental Rights
 Securing equality is a fundamental entitlement, set out in Article14 of the
Constitution. Art.14 directs the State not to deny equality before the law and
equal protection of the laws to any person within the territory of India.
 Right to personal liberty is one of the cardinal principle of the Constitution is
guaranteed under Article 21. Now the Supreme Court of India has laid down
that right to free legal services is an essential ingredient of reasonable, fair
and just procedure for a person accused of an offence and it is implicit in the
guarantee of Art.21.
 Article 21 has been reinforced by Article 39-A, therefore the State must give
to the accused the facility to be defended by a counse1.
 Further, Art.22 states that no person shall be denied the right to consult, and
to be defended by a legal practitioner of his choice.
Directive Principles of State Policy

 Article 39A provides for Equal Justice and free legal aid and states that "The
state shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall in particular, provide free legal aid, by
suitable legislation or schemes or in any other way to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities."
7. Reports of several committees on legal aid

First Report of Law Commission of India
 The First Law Commission of India under the Chairmanship of Mr. M. C.
Setalvad addressed itself more seriously to the question of equal access to
justice in the context of constitutional background.
 Third All India Lawyers Conference The provision of legal aid was considered
jointly by lawyers in Third All India Lawyers Conference (1962) and they made
many recommendation.
8. 42nd Amendment to the Constitution, 1976

 Article 39A is added by the Constitution (42'1 Amendment) Act, 1976 to
ensure equal justice which has been promised to all citizens by the Preamble
and to further guarantee equality before law (Article 14), which would have no
meaning to the poor so long as they are unable to pay for their legal
admission:
 The impact of Article 39A read with Article 21 has been to reinforce the right
of a person involved in a criminal proceeding to legal aid.
9. Criminal Procedure Amendment Act, 2005

 Criminal Procedure Amendment Act, 2005 has also made several
amendments to ensure free legal aid to citizens.
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Q-2- Examine in details the provisions of Article 323A and 323B of Indian
Constitution.
Ans:-
323A. Administrative tribunals.-
1. Parliament may, by law, provide for the adjudication or trial by administrative
tribunals of disputes and complaints with respect to recruitment and conditions of
service of persons appointed to public services and posts in connection with the
affairs of the Union or of any State or of any local or other authority within the
territory of India or under the control of the Government of India or of any
corporation owned or controlled by the Government.
2. A law made under clause (1) may—
a) Provide for the establishment of an administrative tribunal for the Union and a
separate administrative tribunal for each State or for two or
more States;
b) specify the jurisdiction, powers (including the power to punish for contempt)
and authority which may be exercised by each of the said tribunals;
c) provide for the procedure (including provisions as to limitation and rules of
evidence) to be followed by the said tribunals;
d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme
Court under article 136, with respect to the disputes or complaints
referred to in clause (1);
e) provide for the transfer to each such administrative tribunal of any cases
pending before any court or other authority immediately before the
establishment of such tribunal as would have been within the jurisdiction of
such tribunal if the causes of action on which such suits or proceedings are
based had arisen after such establishment;
f) repeal or amend any order made by the President under clause (3) of article
371D;
g) contain such supplemental, incidental and consequential provisions (including
provisions as to fees) as Parliament may deem necessary for the
effective functioning of, and for the speedy disposal of cases by, and the
enforcement of the orders of, such tribunals.
3. The provisions of this article shall have effect notwithstanding anything in any
other provision of this Constitution or in any other law for the time being in force.
323B. Tribunals for other matters.-

1. The appropriate Legislature may, by law, provide for the adjudication or trial by
tribunals of any disputes, complaints, or offences with respect to all or any of the
matters specified in clause (2) with respect to which such Legislature power to
make laws has.
2. The matters referred to in clause (1) are the following, namely:—
a) levy, assessment, collection and enforcement of any tax;
b) foreign exchange, import and export across customs frontiers;
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c) industrial and labour disputes;
d) land reforms by way of acquisition by the State of any estate as defined in
article 31A or of any rights therein or the extinguishment or modification of any
such rights or by way of ceiling on agricultural land or in any other way;
e) ceiling on urban property;
f) elections to either House of Parliament or the House or either House of the
Legislature of a State, but excluding the matters referred to in article 329 and
article 329A;
g) production, procurement, supply and distribution of food-stuffs (including
edible oilseeds and oils) and such other goods as the President may, by
public notification, declare to be essential goods for the purpose of this article
and control of prices of such goods;
h) rent, its regulation and control and tenancy issues including the right, title and
interest of landlords and tenants;
i) offences against laws with respect to any of the matters specified in sub-
clauses (a) to (h) and fees in respect of any of those matters;
j) any matter incidental to any of the matters specified in sub-clauses (a) to (i).
3. A law made under clause (1) may—

a) provide for the establishment of a hierarchy of tribunals;
b) specify the jurisdiction, powers (including the power to punish for contempt)
and authority which may be exercised by each of the said tribunals;
c) provide for the procedure (including provisions as to limitation and rules of
evidence) to be followed by the said tribunals;
d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme
Court under article 136, with respect to all or any of the matters falling within
the jurisdiction of the said tribunals;
e) provide for the transfer to each such tribunal of any cases pending before any
court or any other authority immediately before the establishment of such
tribunal as would have been within the jurisdiction of such tribunal if the
causes of action on which such suits or proceedings are based had arisen
after such establishment;
f) contain such supplemental, incidental and consequential provisions (including
provisions as to fees) as the appropriate Legislature may deem necessary for
the effective functioning of, and for the speedy disposal of cases by, and the
enforcement of the orders of, such tribunals.
4. The provisions of this article shall have effect notwithstanding anything in any
other provision of this Constitution or in any other law for the time being in force.
Explanation.—In this article, “appropriate Legislature”, in relation to any matter,
means Parliament or, as the case may be, a State Legislature competent to
make laws with respect to such matter in accordance with the provisions of Part
XI.
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Q-3- (A) Write Short Notes on Lok Adalat
Organisation of Lok Adalats:-

1. Every State Authority or District Authority or the Supreme Court Legal Services
Committee or every High Court Legal Services Committee or, as the case may
be, Taluka Legal Services Committee may organise Lok Adalats at such intervals
and places and for exercising such jurisdiction and for such areas as it thinks fit.
2. Every Lok Adalat organised for an area shall consist of such number of -
a) Serving or retired judicial officers; and
b) Other persons of the area as may be specified by the State Authority or the
District Authority or the Supreme Court Legal Services Committee or the High
Court Legal Services Committee, or as the case may be, the Taluka Legal
Services Committee, organising such Lok Adalats.
3. The experience and qualifications of other persons referred to in clause (b) of
sub-section (2) for Lok Adalats organised by the Supreme Court Legal Services
Committee shall be such as may be prescribed by the Central Government in
consultation with the Chief Justice of India.
4. The experience and qualifications of other persons referred to in clause (b) of
sub-section (2) for Lok Adalats other than referred to in sub-section (3) shall be
such as may be prescribed by the State Government in consultation with the
Chief Justice of the High Court.
5. A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute in respect of -
(i) Any case pending before; or
(ii) Any matter which is falling within the jurisdiction of, and is not brought before,
any court for which the Lok Adalat is organised.
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or
matter relating to an offence not compoundable under any law.
Cognizance of cases by Lok Adalats.-

1. Where in any case referred to in clause (i) of sub-section (5) of Section 19-(i)
a) The parties thereof agree; or
b) One of the parties thereof makes an application to the court for referring the
case to the Lok Adalat for settlement and if such court is prima facie satisfied
that there are chances of such settlement; or
c) The court is satisfied that the matter is an appropriate one to be taken
cognizance of by the Lok Adalat, the court shall refer the case to the Lok
Adalat; Provided that no case shall be referred to the Lok Adalat under sub-
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clause (b) of clause ( i) or clause (ii) by such court except after giving a
reasonable opportunity of being heard to the parties.
2. Notwithstanding anything contained in any other law for the time being in force,
the Authority or Committee organising the Lok Adalat under sub-section (1) of
Section 19 may, on receipt of an application from any, one of the parties to any
matter referred to in clause (ii) of sub-section (5) of Section 19 that such matter
needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for
determination;
Provided that no matter shall be referred to the Lok Adalat except after giving a
reasonable opportunity of being heard to the other party.
3. Where any case is referred to a Lok Adalat under sub-section (1) or where a
reference has been made to it under sub-section (2), the Lok Adalat shall
proceed to dispose of the case or matter and arrive at a compromise or
settlement between the parties.
4. Every Lok Adalat shall, while determining any reference before it under this Act,
act with utmost expedition to arrive at a compromise or settlement between the
parties and shall be guided by the principles of Justice, equity, fair play and other
legal principles.
5. Where no award is made by the Lok Adalat on the ground that no compromise or
settlement could be arrived at between the parties, the record of the case shall be
returned by it to the court, from which the reference has been received under
sub-section (1) for disposal in accordance with law.
6. Where no award is made by the Lok Adalat on the ground that no compromise or
settlement could be arrived at between the parties, in a matter referred to in sub-
section (2), that Lok Adalat shall advice the parties to seek remedy in a court.
7. Where the record of the case is returned under sub-section (5) to the court, such
court shall proceed to deal such reference under sub-section (1).
Award of Lok Adalat:-

1. Every award of the Lok Adalat shall be deemed to be a decree of a civil court or,
as the case may be, an order of any other court and where a compromise or
settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-
section (1) of Section 20, the court-fee paid in such case shall be refunded in the
manner provided under the Court Fees Act, 1870 (7 of 1870).
2. Every award made by a Lok Adalat shall be final and binding on all the parties to
the dispute, and no appeal shall lie to any court against the award.
Powers of Lok Adalats:-

1. The Lok Adalat shall, for the purposes of holding any determination under this
Act, have the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908 (5 of 1908), while trying a suit in respect of the following
matters, namely:-
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a) The summoning and enforcing the attendance of any witness and examining
him on oath.
b) The discovery and production of any document.
c) The reception of evidence on affidavits.
d) The requisitioning of any public record or document or copy of such record or
document from any court or office; and
e) Such other matters as may be prescribed.
2. Without prejudice to the generality of the powers contained in sub-section(1),

every Lok Adalat shall have the requisite powers to specify its own procedure for
the determination of any dispute coming before it.
3. All proceedings before a Lok Adalat shall be deemed to be judicial proceedings
within the meaning of Sections 193, 219 and 228 of the Indian Penal Code (45 of
1860) and every Lok Adalat shall be deemed to be a civil court for the purpose of
Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973(2 of
1974).
Lok Adalats have the competence to deal with a number of cases

like:
1. Compoundable civil, revenue and criminal cases

2. Motor accident compensation claims cases
3. Partition Claims
4. Damages Cases
5. Matrimonial and family disputes
6. Mutation of lands case
7. Land Pattas cases
8. Bonded Labor cases
9. Land acquisition disputes
10. Bank’s unpaid loan cases
11. Arrears of retirement benefits cases
12. Family Court cases
13. Cases, which are not subjudice
Advantages of Lok Adalats

1. Speedy Justice
2. Economical
3. Unburdening of Courts and thus reducing the backlog of case
4. Maintenance of Cordial Relations (since the main thrust is on compromise and
not punishment)
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Q-3- (B) Write Short Notes on Mediation
Ans:-
What is mediation?
 Mediation is an alternative dispute resolution process where the parties engage
in negotiation to resolve the issues in dispute.
 An independent third party, the mediator, will assist the parties to identify the key
issues in dispute and consider options and alternatives to settle the matter.
 Mediation can be voluntary, court ordered or required as part of a dispute
resolution clause in a contract.
 The mediator acts as an independent third party who facilitates the discussion
between the disputing parties. They will explain how the mediation will take place,
identify the real issues in dispute by asking questions to the parties and help
develop options to resolve the dispute.
 In most mediations, the parties will be physically separated - as in, they will sit in
different rooms, with the mediator speaking with one party at a time, shuffling
between parties through the course of the mediation.
 As an independent third party, the mediator can provide innovative solutions that
the parties may not have considered prior to the mediation. However, they will not
give advice, take sides or make decisions.
 In commercial disputes, and depending on the size of the matter, mediators are
often retired judges or other senior lawyers.
 A mediation usually occurs over the space of a single day. However the parties
are able to adjourn a mediation and reconvene on another date if they agree that
it may result in a resolution.
What are the advantages of mediation?

Some of the key advantages of mediation include:
1. it is much less formal and more cost effective than arbitration or litigation;
2. it is confidential;
3. The parties can offer creative settlements that go beyond usual monetary
offers. This allows both parties to make offers that protect their commercial
interests which can facilitate a win/win outcome;
4. compared with litigation or arbitration, it is extremely inexpensive;
5. It happens over a relatively short space of time.
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Even where mediation does not resolve the matter, the process can clarify the issues
in dispute which will help keep costs down if the matter goes to arbitration or
litigation.
Mediation may not be suitable where the commercial relationship has broken down
and there is a real sense that one of the parties is not willing to negotiate.
The obvious disadvantage with mediation is that it's not guaranteed to produce an
outcome. It depends on both parties being willing to negotiate, and their ability to
reach an agreement that will be acceptable to both of them.
Q-4- Define the term “Foreign Award”. What are the conditions for its
enforceability in India?
Ans:-
The New York Convention defines "foreign award" as an arbitral award on
differences between persons arising out of legal relationships, whether contractual or
not, considered as commercial under the law in force in India, made on or after the
11th day of October, 1960-
There are two pre-requisites for enforcement of foreign awards under the New York
Convention. These are:
a. The country must be a signatory to the New York Convention.

b. The award shall be made in the territory of another contracting state which is
a reciprocating territory and notified as such by the Central Government.
Section 47 provides that the party applying for the enforcement of a foreign award
shall, at the time of the application, produce before the court
a) Original award or a duly authenticated copy thereof;
b) Original arbitration agreement or a duly certified copy thereof; and
c) Any evidence required to establish that the award is a foreign award. As per
the new Act, the application for enforcement of a foreign award will now only
lie to High Court.
Conditions for its enforceability in India

Once an application for enforcement of a foreign award is made, the other party has
the opportunity to file an objection against enforcement on the grounds recognized
under Section 48 of the Act. These grounds include:
a. the parties to the agreement referred to in section 44 were, under the law
applicable to them, under some incapacity, or the said agreement is not valid
under the law to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made; or
b. the party against whom the award is invoked was not given proper notice of
the appointment of the arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
c. the award deals with a difference not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters
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beyond the scope of the submission to arbitration: Provided that, if the
decisions on matters submitted to arbitration can be separated from those not
so submitted, that part of the award which contains decisions on matters
submitted to arbitration may be enforced; or
d. the composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the arbitration took place;
or
e. The award has not yet become binding on the parties, or has been set aside
or suspended by a competent authority of the country in which, or under the
law of which, that award was made.
f. the subject-matter of the difference is not capable of settlement by arbitration
under the law of India; or
g. The enforcement of the award would be contrary to the public policy of India.
The Amendment Act has restricted the ambit of violation of public policy for
international commercial arbitration to only include those awards that are:
(i) affected by fraud or corruption,
(ii) in contravention with the fundamental policy of Indian law, or
(iii) conflict with the notions of morality or justice.
It is further provided that if an application for the setting aside or suspension of the
award has been made to a competent authority, the Court may, if it considers it
proper, adjourn the decision on the enforcement of the award and may also, on the
application of the party claiming enforcement of the award, order the other party to
give suitable security.
Section 49 provides that where the Court is satisfied that the foreign award is
enforceable under this Chapter, the award shall be deemed to be a decree of that
Court.
Q-5- Define the term “Arbitration Agreement”. Explain the provisions of

Arbitration and Conciliations Act 1996 regarding the intervention of court in
Arbitration Proceedings.
Ans:-
Arbitration agreement. (Sectioin-7)
1. In this Part, “arbitration agreement” means an agreement by the parties to
submit to arbitration all or certain disputes which have arisen or which may
arise between them in respect of a defined legal relationship, whether
contractual or not.
2. An arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.
3. An arbitration agreement shall be in writing.
4. An arbitration agreement is in writing if it is contained in-
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a) A document signed by the parties;
b) An exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of the agreement; or
c) An 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.
5. There reference in a contract to a document containing
an arbitration clause constitutes an arbitration agreement if the
contract is in writing and the reference is such as to make that
arbitration clause part of the contract.
Provisions of Arbitration and Conciliations Act 1996 regarding the intervention
of court in Arbitration Proceedings:-
 One of the intrinsic objectives behind the enactment of Arbitration and

Conciliation Act, 1996 was reducing the scope of judicial intervention.
 The Indian Legislature in conformity with Article 5 of the UNCITRAL Model Law
on International Commercial Arbitration 1985 vii enacted Section 5 of the
Act which eliminates the scope of judicial intervention and enumerates that no
judicial authority shall intervene except where so provided by the Act.
 In plethora of judgments, the Indian Judiciary has reaffirmed this settled principle
of Law and stated that the Act under Section 5 intents to reduce judicial
intervention.
 Furthermore, Section 34 of the Act also restricts the scope of judicial intervention
by Courts and provides an inclusive list of circumstances in which an Arbitral
Award can be set aside by the Court.
 For instance, an Arbitral Award can be set aside by the Court when:
1. A party is under some incapacity;
2. Arbitration agreement in not valid under the Law;
3. Party making the application was not given proper notice of appointment of
arbitrator;
4. The arbitral award deals with a dispute not contemplated by or not falling
within the terms of the submission to arbitration;
5. The composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties;
6. When Court finds that the subject-matter of the dispute is not capable of
settlement by arbitration under the law for the time being in force or
Award is in conflict with the Public Policy of India
 Section 34 of the Act was amended vide the Arbitration and Conciliation

(Amendment) Act, 2015 which further curtails judicial intervention and limits the
ambit of “public policy” by stating that an award is in conflict with public policy of
India, only if-
(i) the making of the Award was induced or affected by fraud or corruption; or
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Q-6- (A) Difference between Arbitration and Conciliation
Sr. Point of Arbitration Conciliation & Mediation
No. Difference
1 Meaning Arbitration is a dispute Conciliation is a process
settlement process in which a where the parties to a dispute,
third party is appointed to with the assistance of a
review the facts and merits of dispute resolution practitioner,
a dispute and reach a binding discuss the issues in
decision on the parties. In disputes, generate ideas and
order for arbitration to be options for possible terms of
used, all parties to the dispute settlement, consider
must have previously alternatives and aim to reach
consented to the process; or a mutual agreement.
arbitration may be required
under court order or as part of
a contract.
2 Applicability In case of Arbitration, parties While in case of Mediation or
need to have an Arbitration Conciliation no such
agreement only then they can agreement is required.
resolve their dispute via Generally, the court sends
arbitration. Under Section 7 of matter which suits or can be
the 1996 Act, the agreement resolved via Mediation and
must be writing to be Conciliation or if the matter is
enforceable. Also, consent of such that the parties don’t
both the parties is also want to bring the information
necessary it can be oral or in public then to keep it
written private they go for mediation
and conciliation.
3 Procedure In case of Arbitration the In the case of Mediation, the
Arbitrator take his decision mediator has the liberty to
based on the facts, side select any suitable method of
stories and evidence of the resolve the dispute as there
case which may or may not be are no strict guidelines to
favorable to one party. follow.
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Arbitrator conducts the While in case of conciliation
proceeding strictly by legal the conciliator is bound to
restriction and is bound to follow the process given
follow the neutral approach in under the Arbitration and
resolving the dispute. Conciliation Act (Sections 61
to 81).
4 Cost The Process of Arbitration as In case of conciliation and
compared to mediation and mediation, the cost of process
conciliation, it more costly and and mediator and conciliator
lengthy process. In case of is equally divided among the
Arbitration, each part pays for parties.
its own expenses or Arbitrator.
5 Judgment An Arbitrator is a judge of the In the case of mediation, a
dispute and provides mediator does not deliver
resolution measures which are any judgment. A mediator is a
binding on the parties unless mere facilitator who assists in
parties beforehand agreed developing option and
that the outcome of the dialogue between the parties
proceeding won’t be binding. to achieve a mutual
agreement favorable for both
the parties.
While in case of conciliation,
the role of a conciliator is
more than that of a mediator
as a conciliator is considered
has a pro-active role and is
not merely a facilitator. A
conciliator can as per Section
67(4) of the 1996 act can
make a proposal for
settlement between the
parties when there is scope
for settlement which is
presented to parties and the
parties have an issue then the
conciliator has the right to
reform the settlement
proposal.
Q-6- (B) Termination of Arbitration Proceedings.
Page 15 of 35
Ans:- Termination of proceedings.
1. The arbitral proceedings shall be terminated by the final arbitral award or by an
order of the arbitral tribunal under sub-section (2).
2. The arbitral tribunal shall issue an order for the termination of the arbitral
proceedings where-
a) the claimant withdraws his claim, unless the respondent objects to the
order and the arbitral tribunal recognises a legitimate interest on his part
in, obtaining a final settlement of the dispute,
b) the parties agree on the termination of the proceedings, or
c) the arbitral tribunal finds that the continuation of the proceedings has for
any other mason become unnecessary or impossible.
3. Subject to section 33 and sub-section (4) of section 34, the mandate of the
arbitral tribunal shall terminate with the termination of the arbitral proceedings.
Q-7- Discuss the provisions relating to finality and enforcement of Arbitral

Award under Arbitration and Conciliations Act 1996.
Ans:-
Finality of arbitral awards. -An arbitral award shall be final and binding on the
parties and persons, claiming under them respectively.
Enforcement. –
1. Where the time for making an application to set aside the arbitral award under
section 34 has expired, or such application having been made, it has been
refused, the award shall be enforced under the Code of Civil Procedure, 1908
(5 of 1908) in the same manner as if it were a decree of the court.
2. Where an application to set aside the arbitral award has been filed in the
Court under section 34, the filing of such an application shall not by itself
render that award unenforceable, unless the Court grants an order of stay of
the operation of the said arbitral award in accordance with the provisions of
sub-section (3), on a separate application made for that purpose.
3. Upon filing of an application under sub-section (2) for stay of the operation of
the arbitral award, the Court may, subject to such conditions as it may deem
fit, grant stay of the operation of such award for reasons to be recorded in
writing:
Provided that the Court shall, while considering the application for grant of
stay in the case of an arbitral award for payment of money, have due regard to
the provisions for grant of stay of a money decree under the provisions of the
Code of Civil Procedure, 1908 (5 of 1908).
Page 16 of 35
Q-8-What is Conciliations? Discuss the process of Conciliation Proceedings.
Ans:-
What is conciliation?
 Conciliation is a process where the parties to a dispute, with the assistance of a
dispute resolution practitioner, discuss the issues in disputes, generate ideas and
options for possible terms of settlement, consider alternatives and aim to reach a
mutual agreement.
 The main role of a conciliator is to facilitate the mediation and advocate for a
mutual settlement of matters, generate options and consider alternatives.
 Conciliations are often used in industrial disputes and family law disputes.
Application and Scope-

 Section 61 of the Arbitration and Conciliation Act of 1996 provides for the
Application and Scope of Conciliation.
 Section 61 points out that the process of conciliation extends, in the first place,
to disputes, whether contractual or not. But the disputes must arise out of the
legal relationship. It means that the dispute must be such as to give one party the
right to sue and to the other party the liability to be sued.
 The process of conciliation extends, in the second place, to all proceedings
relating to it.
Number and qualification of conciliators-Section 63 fixes the number of

conciliators. There shall be one conciliator. But the parties may by their agreement
provide for two or three conciliators. Where the number of conciliator is more than
one, they should as general rule act jointly.
Appointment of conciliators-
Section 64 deals with the appointment of the conciliators.
 When the invitation to the conciliation is accepted by the other party, the
parties have to agree on the composition of the conciliation tribunal. In the
absence of any agreement to the contrary, there shall be only one conciliator.
 The conciliation proceeding may be conducted by a sole conciliator to be
appointed with the consent of both the parties, failing to which the same may
be conducted by two conciliators (maximum limit is three), then each party
appoints own conciliator, and the third conciliator is appointed unanimously by
both the parties.
 The third conciliator so appointed shall be the presiding conciliator. The
parties to the arbitration agreement instead of appointing the conciliator
themselves may enlist the assistance of an institution or person of their choice
for appointment of conciliators. But the institution or the person should keep in
view during appointment that, the conciliator is independent and impartial.
Page 17 of 35
Principles of Procedure
1. Independence and impartiality [Section 67(1)]-
The conciliator should be independent and impartial. He should assist the parties
in an independent and impartial manner while he is attempting to reach an
amicable settlement of their dispute.
2. Fairness and justice[Section 67(2)]-

The conciliator should be guided by the principles of fairness and justice. He
should take into consideration, among other things, the rights and obligations of
the parties, the usages of the trade concerned, and the circumstances
surrounding the dispute, including any previous business practices between the
parties.
3. Confidentiality [Section 70]-

The conciliator and the parties are duly bound to keep confidential all matters
relating to conciliation proceedings. Similarly when a party gives a information to
the conciliator on the condition that it be kept confidential, the conciliator should
not disclose that information to the other party.
4. Disclosure of the information [Section 70]-

When the conciliator receives a information about any fact relating to the dispute
from a party, he should disclose the substance of that information to the other
party. The purpose of this provision is to enable the other party to present an
explanation which he might consider appropriate.
5. Co-operation of the parties with Conciliator [S. 71]-

The parties should in good faith cooperate with the conciliator. They should
submit the written materials, provide evidence and attend meetings when the
conciliator requests them for this purpose.
Procedure of conciliation
1. Commencement of the conciliation proceedings [Section 62]-
 The conciliation proceeding are initiated by one party sending a written
invitation to the other party to conciliate.
 The invitation should identify the subject of the dispute.
 Conciliation proceedings are commenced when the other party accepts the
invitation to conciliate in writing.
 If the other party rejects the invitation, there will be no conciliation
proceedings.
 If the party inviting conciliation does not receive a reply within thirty days of
the date he sends the invitation or within such period of time as is specified in
Page 18 of 35
the invitation, he may elect to treat this as rejection of the invitation to
conciliate.
 If he so elects he should inform the other party in writing accordingly.
2. Submission of Statement to Conciliator [Section 65] –

 The conciliator may request each party to submit to him a brief written
statement.
 The statement should describe the general nature of the dispute and the
points at issue. Each party should send a copy of such statement to the other
party.
 The conciliator may require each party to submit to him a further written
statement of his position and the facts and grounds in its support. It may be
supplemented by appropriate documents and evidence.
 The party should send the copy of such statements, documents and evidence
to the other party. At any stage of the conciliation proceedings, the conciliator
may request a party to submit to him any additional information which he may
deem appropriate.
3. Conduct of Conciliation Proceedings [Section 69(1),67(3)]-

 The conciliator may invite the parties to meet him. He may communicate with
the parties orally or in writing. He may meet or communicate with the parties
together or separately.
 In the conduct of the conciliation proceedings, the conciliator has some
freedom. He may conduct them in such manner as he may consider
appropriate.
 But he should take in account the circumstances of the case, the express
wishes of the parties, a party’s request to be heard orally and the need of
speedy settlement of the dispute.
4. Administrative assistance [S. 68]-

 Section 68 facilitates administrative assistance for the conduct of conciliation
proceedings. Accordingly, the parties and the conciliator may seek
administrative assistance by a suitable institution or the person with the
consent of the parties.
Q-9- What is award? Discuss the different grounds under which the award can
be set aside under Arbitration and Conciliations Act 1996.
Ans:-
Page 19 of 35
An arbitration award (or arbitral award) is a determination on the merits by
an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of
law. It is referred to as an 'award' even where all of the claimant's claims fail (and
thus no money needs to be paid by either party), or the award is of a non-monetary
nature
An award, according to The Arbitration Act, 1996 will be considered valid if it satisfies
two conditions, which are:
 It must be certain, and
 It must contain the decision.
The award should not leave any matters to be discussed subsequently and it should
clearly mention and define the duties and liabilities imposed on the parties. It must
be clear and unambiguous and final in relation to the issues and claims with which it
deals
Section 34 provides that an arbitral award may be set aside by a court on certain
grounds specified therein. These grounds are:
1. Incapacity of a party
2. Arbitration agreement not being valid
3. Party not given proper notice of arbitral proceedings
4. Nature of dispute not falling within the terms of submission to arbitration
5. Arbitral procedure not being in accordance with the agreement
Section 34(2) (b) mentions two more grounds which are left with the Court itself to
decide whether to set aside the arbitral award:
1. Dispute is not capable of settlement by arbitral process

2. The award is in conflict with the public policy of India
INCAPACITY OF PARTIES
If a party to the arbitration is not capable of looking after his own interests such as
minor or persons of unsound mind, and he is not represented by a person who can
protect his interests, the award will not be binding on him and may be set aside on
his application.
INVALIDITY OF AGREEMENT
The validity of an agreement can be challenged on any of the grounds on which the
validity of a contract may be challenged. In cases where the arbitration clause is
contained in a contract, the arbitration clause will be invalid if the contract is invalid.
In State of U.P. v. Allied Constructions[iv] the court held that the validity of an
agreement has to be tested on the basis of law to which the parties have subjected
Page 20 of 35
it. Where there is no such indication, the validity would be examined according to the
law which is in force.
NOTICE NOT GIVEN TO PARTIES

Section 34(2)(a)(iii) permits challenge to an award if the party was not given proper
notice of the appointment of an arbitrator, or the party was not given proper notice of
the arbitral proceedings, or the party was for some reasons unable to present his
case.
AWARD BEYOND SCOPE OF REFERENCE

The reference of a dispute under an agreement defines the limits of the authority and
jurisdiction of the arbitrator. If the arbitrator had assumed jurisdiction not possessed
by him, the award to the extent to which it is beyond the arbitrator’s jurisdiction would
be invalid and liable to be set aside.
Section 34(2)(a)(iv) of the Act provides that an arbitral award is liable to be set aside
if it deals with a dispute not contemplated by the reference, or not falling within the
terms of the reference, or it contains a decision in matters beyond the reference.
In Gautam Construction & Fisherie Ltd v. National Bank for Agriculture and
Rural Development[vii], the Supreme Court modified the award to the extent that
the rate of construction meant for ground floor could not be applied to the
construction of the basement area.
ILLEGALITY IN ARBITRAL PROCEDURE

Section 34(2)(a)(v) provide that an award can be challenged if the composition of
the Tribunal was not in accordance with the agreement, or the procedure agreed to
by the parties was not followed in the conduct of proceedings, or in the absence of
agreement as to procedure, the procedure prescribed by the Act was not followed.
DISPUTE NOT ARBITRABLE

The existence of an arbitral dispute is a condition precedent for exercise of power by
an arbitrator.
Only matters of indifference between the parties to litigation which affect their private
rights can be referred to arbitration.
Therefore, matters of criminal nature, insolvency proceedings, and matters of public
rights cannot be decided by arbitration.
AWARD AGAINST PUBLIC POLICY

Section 34(2)(b)(ii) provides that an application for setting aside an arbitral award
can be made if the arbitral award is in conflict with the public policy of India.
Page 21 of 35
The explanation to clause (b) clarifies that an award obtained by fraud or corruption
would also be an award against the public policy of India. An award obtained by
suppressing facts, by misleading or deceiving the arbitrator, by bribing the arbitrator,
by exerting pressure on the arbitrator, etc. would be liable to be set aside.
The concept of public policy connotes some matter which concerns public good and
public interest.
In Venture Global Engg v. Satyam Computer Service Ltd [xv], it was held that an
award could be set aside if it is contrary to fundamental policy of Indian law, or the
interest of India, or justice or morality, or it is patently illegal.
Q-10- Who are entitled to legal services under Legal Services Authorities Act
1987. Discuss the powers of NLSA with Case Laws.
Ans:-
Section 12. Criteria for giving legal services
Every person who has to file or defend a case shall be entitled to legal services
under this Act if that person is :-
a) A member of a Scheduled Caste or Scheduled Tribe.
b) A victim of trafficking in human beings or beggar as referred to in Article 23 of the
Constitution.
c) A woman or a child.
d) A mentally ill or otherwise disabled person.
e) A person under circumstances of undeserved want such as being a victim of a
mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or
industrial disaster or
f) An industrial workman or
g) In custody, including custody in a protective home within the meaning of clause
(g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956(104 of 1956); or in a
juvenile home within the meaning of clause(j) of Section 2 of the Juvenile Justice
Act, 1986 (53 of 1986); or in a psychiatric hospital or psychiatric nursing home
within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987(14 of
1987) or
h) in receipt of annual income less than rupees nine thousand or such other higher
amount as may be prescribed by the State Government, if the case is before a
court other than the Supreme Court, and less than rupees twelve thousand or
such other higher amount as may be prescribed by the Central Government, if
the case is before the Supreme Court.
Section 13. Entitlement to Legal Services

1. Persons who satisfy all or any of the criteria specified in Section 12 shall be
entitled to receive legal services provided that the concerned Authority is satisfied
that such person has a prima-facie case to prosecute or to defend.
Page 22 of 35
2. An affidavit made by a person as to his income may be regarded as sufficient for
making him eligible to the entitlement of legal services under this Act unless the
concerned Authority has reason to disbelieve such affidavit.
The Central Authority (NaLSA) shall perform all or any of the following
functions, namely and for the purpose it has required powers:-
1. Lay down policies and principles for making legal services available under the
provisions of this Act.
2. Frame the most effective and economical schemes for the purpose of making
legal services available under the provisions of this Act.
3. Utilise the funds at its disposal and make appropriate allocations of funds to the
State Authorities and District Authorities;
4. Take necessary steps by way of social justice litigation with regard to consumer
protection, environmental protection or any other matter of special concern to the
weaker sections of the society and for this purpose, give training to social
workers in legal skills.
5. Organise legal aid camps, especially in rural areas, slums or labour colonies with
the dual purpose of educating the weaker sections of the society as to their rights
as well as encouraging the settlement of disputes through Lok Adalats.
6. Encourage the settlement of disputes by way of negotiations, arbitration and
conciliation.
7. Undertake and promote research in the field of legal services with special
reference to the need for such services among the poor.
8. To do all things necessary for the purpose of ensuring commitment to the
fundamental duties of citizens under Part IVA of the Constitution.
9. Monitor and evaluate implementation of the legal aid programmes at periodic
intervals and provide for independent evaluation of programmes and schemes
implemented in whole or in part by funds provided under this Act.
10. Provide grants-in-aid for specific schemes to various voluntary social service
institutions and the State and District Authorities, from out of the amounts placed
at its disposal for the implementation of legal services schemes under the
provisions of this Act.
11. Develop, in consultation with the Bar Council of India, programmes for clinical
legal education and promote guidance and supervise the establishment and
working of legal services clinics in universities, law colleges and other institutions.
12. Take appropriate measures for spreading legal literacy and legal awareness
amongst the people and, in particular, to educate weaker sections of the society
about the rights, benefits and privileges guaranteed by social welfare legislations
and other enactments as well as administrative programmes and measures.
Page 23 of 35
13. Make special efforts to enlist the support of voluntary social welfare institutions
working at the grass-root level, particularly among the Scheduled Castes and the
Scheduled Tribes, women and rural and urban labour; and
14. Coordinate and monitor the functioning of State Authorities, District Authorities,
Supreme Court Legal Services Committee, High Court Legal Services
Committees, Taluk Legal Services Committees and voluntary social service
institutions and other legal services organisations and given general directions for
the proper implementation of the Legal Services programmes.
Q-11-(A) Arbitral award on agreed Terms

Ans:-Settlement. Section-30
1. It is not incompatible with an arbitration agreement for an arbitrat tribunal to
encourage settlement of the dispute and, with the agreement of the parties; the
arbitrat tribunal may use mediation, conciliation or other procedures at any time
during the arbitral proceedings to encourage settlement.
2. If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal
shall terminate the proceedings and, if requested by the parties and not objected
to by the arbitral tribunal, record the settlement in the form of an arbitrat award on
agreed terms.
3. An arbitral award on agreed terms shall be made in accordance with section 31
and shall state that it is an arbitrat award.
4. An arbitrat award on agreed terms shall have the same status and effect as any
other arbitral award on the substance of the dispute.
Form and contents of arbitral award on agreed terms (Section-31)

1. An arbitral award shall be made in writing and shall be signed by the members of
the arbitral tribunal.
2. For the purposes of sub-section (1), in arbitrat proceeding with more than one
arbitrator, the signatures of the majority of all the members of the arbitral tribunal
shall be sufficient so long as the reason for any omitted signature is stated.
3. The arbitral award shall state the reasons upon which it is based, unless-
a) The parties have agreed that no reasons are to be given, or
b) The award is an arbitral award on a-reed terms under section 30.
4. The arbitral award shall state its date and the place of arbitration as determined
in accordance with section 20 and the award shall be deemed to have been
made at that place.
5. After the arbitral award is made, a signed copy shall be delivered to each party.
Page 24 of 35
6. The arbitral tribunal may, at any time during the arbitral proceedings, make an
interim arbitral award on any matter with respect to which it may make a final
arbitral award.
7. (a) Unless otherwise a reed by the parties, where and in so far as an arbitral
award is for the payment of money, the arbitral tribunal may include in the sum
for which the award is made interest, at such rate as it deems reasonable, on the
whole or any part of the money, for the whole or any part of the period between
the date on which the cause of action arose and the date on which the award is
made.
(b) A sum directed to be paid by an arbitral award shall, unless the award
otherwise directs, carry interest at the rate of eighteen percentum per annum
from the date of the award to the date of payment.
8. Unless otherwise agreed by the parties, -
a) The costs of an arbitration shall be fixed by the arbitral tribunal
b) The arbitral tribunal shall specify-
(i) The party entitled to costs,
(ii) The party who shall pay the costs,
(iii) The amount of costs or method of determining that amount, and
(iv) The manner in which the costs shall be paid
Q-11- (B) Jurisdiction of Arbitral Tribunal

Ans:-Competence of arbitral tribunal to rule on its jurisdictional. (Section-16)
1. The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement,
and for that purpose, -
a) An arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract; and
b) A decision by the arbitral tribunal that the contract is null and void shall not
entail ipso jure the invalidity of the arbitration clause.
2. A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than the submission of the statement of defence; however, a party shall not be
precluded from raising such a plea merely because that he has appointed, or
participated in the appointment of, an arbitrator.
3. A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of its authority is
raised during the arbitral proceedings.
4. The arbitral tribunal may, in either of the cases referred to in sub-section (2) or
subsection (3), admit a later plea if it considers the delay justified.
5. The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-
section (3) and, where the arbitral tribunal takes a decision rejecting the plea,
continue with the arbitral proceedings and make an arbitral award.
Page 25 of 35
6. A party aggrieved by such an arbitral award may make an application for setting
aside such an arbitral award in accordance with section 34.
Interim measures ordered by arbitral tribunal. (Section-17)

1. Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of
a party, order a party to take any interim measure of protection as the arbitral
tribunal may consider necessary in respect of the subject matter of the dispute.
2. The arbitral tribunal may require a party to provide appropriate security in
connection with a measure ordered under sub-section (1).
Q-12- (A) Short note on Arbitral Tribunal

Ans:-
Number of arbitrators. (S-10)
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.
Appointment of arbitrators. (S-11)
1. A person of any nationality may be an arbitrator, unless otherwise agreed

by the parties.
2. Subject to sub-section (6), the parties are free to agree on a procedure for
appointing the arbitrator or arbitrators.
3. Failing any agreement referred to in sub-section (2), in an arbitration with

three arbitrators, each party shall appoint one arbitrator, and the two
appointed arbitrators shall appoint the third arbitrator who shall act as the
presiding arbitrator.
4. If the appointment procedure in sub-section (3) applies and-
(a) A party fails to appoint an arbitrator within thirty days from the
receipt of a request to do so from the other party; or
Page 26 of 35
(b) The two appointed arbitrators fail to agree on the third arbitrator
within thirty days from the date of their appointment,
The appointment shall be made, upon request of a party, by the

Chief Justice or any person or institution designated by him.
5. Failing any agreement referred to in sub-section (2), in an arbitration with a

sole arbitrator, if the parties fail to agree on the arbitrator within thirty days
from receipt of a request by one party from the other party to so agree the
appointment shall be made, upon request of a party, by the Chief Justice or
any person or institution designated by him.
6. Where, under an appointment procedure agreed upon by the parties, -
(a) A party fails to act as required under that procedure; or
(b) The parties, or the two appointed arbitrators, fail to reach an

agreement expected of them under that procedure; or
(c) A person, including an institution, fails to perform any function

entrusted to him or it under that procedure,
A party may request the Chief Justice or any person or

institution designated by him to take the necessary measure,
unless the agreement on the appointment procedure provides
other means for securing the appointment.
 (6A) The Supreme Court or, as the case may be, the High Court, while
considering any application under sub-section (4) or sub-section (5) or
sub-section (6), shall, notwithstanding any judgment, decree or order of
any Court, confine to the examination of the existence of an arbitration
agreement.
 (6B) The designation of any person or institution by the Supreme Court or,
as the case may be, the High Court, for the purposes of this section shall
not be regarded as a delegation of judicial power by the Supreme Court or
the High Court.]
7. A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-

section (6) to the Chief Justice or the person or institution designated by him is
final.
8. The Chief Justice or the person or institution designated by him, in appointing an

arbitrator, shall have due regard to-
Page 27 of 35
(a) Any qualifications required of the arbitrator by the agreement of the
parties; and
(b) Other considerations as are likely to secure the appointment of an

independent and impartial arbitrator.
9. In the case of appointment of sole or third arbitrator in an international

commercial arbitration, the Chief Justice of India or the person or institution
designated by him may appoint an arbitrator of a nationality other than the
nationalities of the parties where the parties belong to different nationalities.
10. The Chief Justice may make such scheme, as he may deem appropriate for
dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-
section (6) to him.
11. Where more than one request has been made under sub-section (4) or sub-
section (5) or sub-section (6) to the Chief Justices of different High Courts or
their designates, the Chief Justice or his designate to whom the request has
been first made under the relevant subsection shall alone be competent to
decide on the request.
12.
a) Where the matters referred to in sub-sections (4), (5), (6), (7),(8) and (10)
arise in an international commercial arbitration, the reference to “Chief
Justice” in those subsections shall be construed as a reference to the
“Chief Justice of India”.
b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10)
arise in any other arbitration, the reference to “Chief Justice” in those sub-
sections shall be construed as a reference to the Chief Justice of the High
Court within whose local limits the principal Civil Court referred to in clause
(e) of sub-section (1) of section 2 is situate and, where the High Court
itself is the Court referred to in that clause, to the Chief Justice of that High
Court.
13. An application made under this section for appointment of an arbitrator or

arbitrators shall be disposed of by the Supreme Court or the High Court or the
person or institution designated by such Court, as the case may be, as
expeditiously as possible and an endeavour shall be made to dispose of the
matter within a period of sixty days from the date of service of notice on the
opposite party.
14. For the purpose of determination of the fees of the arbitral tribunal
and the manner of its payment to the arbitral tribunal, the High Court may frame such
rules as may be necessary, after taking into consideration the rates specified in the
Fourth Schedule.
Page 28 of 35
Grounds for challenge. (S-12)
1. When a person is approached in connection with his possible appointment as

an arbitrator, he shall disclose in writing any circumstances likely to give rise
to justifiable doubts as to his independence or impartiality.
2. An arbitrator, from the time of his appointment and throughout the arbitral
proceedings, shall, without delay, disclose to the parties in writing any
circumstances referred to in sub-section (1) unless they have already been
informed of them by him.
3. An arbitrator may be challenged only if-
(a) Circumstances exist that give rise to justifiable doubts as to his
independence or impartiality, or
(b) He does not possess the qualifications agreed to by the parties.
4. A party may challenge an arbitrator appointed by him, or in whose

appointment he has participated, only for reasons of which he becomes aware
after the appointment has been made.
Challenge procedure. (S-13)
1. Subject to sub-section (4), the parties are free to agree on a procedure for
challenging an arbitrator.
2. Failing any agreement referred to in sub-section (1), a party who intends to
challenge an arbitrator shall, within fifteen days after becoming aware of the
constitution of the arbitral tribunal or after becoming aware of any
circumstances referred to in sub-section (3) of section 12, send a written
statement of the reasons for the challenge to the arbitral tribunal.
3. Unless the arbitrator challenged under sub-section (2) withdraws from his
office or the other party agrees to the challenge, the arbitrat tribunal shall
decide on the challenge.
4. If a challenge under any procedure agreed upon by the parties or under the
procedure under sub-section (2) is not successful, the arbitral tribunal shall
continue the arbitral proceedings and make an arbitral award.
5. Where an arbitral award is made under sub-section (4), the party challenging
the arbitrator may make an application for setting aside such an arbitral award
in accordance with section 34.
6. Where an arbitral award is set aside on an application made under sub-
section (5), the court may decide as to whether the arbitrator who is
challenged is entitled to any fees.
Failure or impossibility to act. (S-14)
Page 29 of 35
1. The mandate of an arbitrator shall terminate if-
(a) He becomes de jure or de facto unable to perform his functions or

for other reasons fails to act without undue delay; and
(b) He withdraws from his office or the parties agree to the termination
of his mandate.
2. If a controversy remains concerning any of the grounds refer-red to in clause

(a) of sub-section (1), a party may, unless otherwise agreed by the parties,
apply to the court to decide on the termination of the mandate.
3. If, under this section or sub-section (3) of section 13, an arbitrator withdraws
from his office or a party agrees to the termination of the mandate of an
arbitrator, it shall not imply acceptance of the validity of any ground referred to
in this section or sub-section (3) of section 12.
Termination of mandate and substitution of arbitrator. (S-15)
(1) In addition to the circumstances referred to in section 13 or section 14, the

mandate of an arbitrator shall terminate-
a) Where he withdraws from office for any reason; or
b) By or pursuant to agreement of the parties.
(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be

appointed according to the rules that were applicable to the appointment of
the arbitrator being replaced.
(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under
subsection (2), any hearings previously held may be repeated at the
discretion of the arbitral tribunal.
(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral
tribunal made prior to the replacement of an arbitrator under this section shall
not be invalid solely because there has been a change in the composition of
the arbitral tribunal.
Q-12- (B) Difference between Arbitration and Litigation

Arbitration vs. Litigation: Comparison chart
Public/Private Arbitration Litigation
Private - between the
Type of Proceeding Public - in a courtroom
two parties
Type of Proceeding Civil - private Civil and criminal
Limited evidentiary
Evidence allowed Rules of evidence allowed
process
How arbitrator/judge Parties select arbitrator Court appoints judge - parties
Page 30 of 35
selected have limited input
Formality Informal Formal
Usually binding; no
Appeal available Appeal possible
appeal possible
At the discretion of
Use of attorneys Extensive use of attorneys
parties; limited
Waiting time for the case to As soon as arbitrator Must wait for the case to be
be heard selected; short scheduled; long
Fee for the arbitrator, Court costs, attorney fees;
Costs
attorneys costly
BASIS FOR
ARBITRATION LITIGATION
COMPARISON
Meaning Arbitration implies a non-judicial Litigation refers to a formal

process in which a neutral third judicial process wherein the
party is appointed for the parties under dispute go to
resolving disputes between the court for its settlement.
parties.
Nature Civil Civil or criminal
Proceeding Private Public
Place Decided by the parties Court
Decided by An arbitrator who is chosen by A judge who is appointed by

the parties mutually. the court.
Cost Low Comparatively high
Appeal Not possible Possible
Q-13- Historical Background and development of Arbitration in India.

Ans:-
Arbitration has a long history in India.
 In ancient times, people often voluntarily submitted their disputes to a group of
wise men of a community—called the panchayat—for a binding resolution.
 The panchayati raj system has found its place in various laws in India.
 Modern arbitration law in India was created by the Bengal Regulations in 1772,
during the British rule. The Bengal Regulations provided for reference by a court
to arbitration, with the consent of the parties, in lawsuits for accounts, partnership
deeds, and breach of contract, amongst others.
 Until 1996, the law governing arbitration in India consisted mainly of three
statutes:
Page 31 of 35
(i) the 1937 Arbitration (Protocol and Convention) Act,
(ii) the 1940 Indian Arbitration Act, and
(iii) the 1961 Foreign Awards (Recognition and Enforcement) Act.
 The 1940 Act was general law governing arbitration in India along the lines of the
English Arbitration Act of 1934, and both the 1937 and the 1961 Acts were
designed to enforce foreign arbitral awards (the 1961 Act implemented the New
York Convention of 1958)
 The government enacted the Arbitration and Conciliation Act, 1996 (the 1996
Act) in an effort to modernize the outdated 1940 Act.
 The 1996 Act is a comprehensive piece of legislation modeled on the lines of the
UNCITRAL (United Nations Commission on International Trade Law) Model Law.
 This Act repealed all the three previous statutes (the 1937 Act, the 1961 Act and
the 1940 Act).
 Its primary purpose was to encourage arbitration as a cost-effective and quick
mechanism for the settlement of commercial disputes. The 1996 Act covers both
domestic arbitration and international commercial arbitration.
Q-14- Discuss in detail New York Convention awards under enforcement of

certain awards.
Ans:-
Definition. (S-44) -In this Chapter, unless the context otherwise requires, “foreign
award” means an arbitral award on differences between persons arising out of
legal relationships, whether contractual or not, considered as commercial under
the law in force in India, made on or after the 11th day of October, 1960-
(a) In pursuance of an agreement in writing for arbitration to which

the Convention set forth in the First Schedule applies, and
(b) In one of such territories as the Central Government, being

satisfied that reciprocal provisions have been made may, by
notification in the Official Gazette, declare to be territories to
which the said Convention applies.
Power of judicial authority to refer parties to arbitration. (S-45) –

Notwithstanding anything contained in Part I or in the Code of Civil Procedure,
1908 (5 of 1908) a judicial authority, when seized of an action in a matter in
respect of which the parties have made an agreement referred to in section 44,
shall, at the request of one of the parties or any person claiming 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.
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When foreign award binding. (S-46) - Any foreign award which would be,
enforceable under this Chapter shall be treated as binding for all purposes on the
persons as between whom it was made, and may accordingly be relied on by any
of those persons by way of defence, set off or otherwise in any legal proceedings
in India and any references in this Chapter to enforcing a foreign award shall be
construed as including references to relying on; an award.
Evidence. (S-47)
1. The party applying for the enforcement of a foreign award shall, at the time of
the application, produces before the court-
a) The original award or a copy thereof, duly authenticated in the manner

required by the law of the country in which it was made;
b) The original agreement for arbitration or a duly certified copy thereof, and
c) Such evidence as may be necessary to prove that the award is a foreign
award.
2. If the award or agreement to be produced under sub-section (1) is in a foreign

language, the party seeking to enforce the award shall produce a translation
into English certified as correct by a diplomatic or consular agent of the
country to which that party belongs or certified as correct in such other
manner as may be sufficient according to the law in force in India.
Explanation. -In this section and all the following sections of this Chapter,
“Court” means the principal Civil Court of original jurisdiction in a district, and
includes the High Court in exercise of its ordinary original civil jurisdiction,
having jurisdiction over the subject-matter of the award if the same had been
the subject-matter of a suit, but does not include any civil court of a grade
inferior to) such principal Civil Court, or any Court of Small, Causes.
Conditions for enforcement of foreign awards. (S-48)
1. Enforcement of a foreign award may be refused, at the request of the party

against whom it is invoked, only if that party furnishes to the court proof that-
a) The parties to the agreement referred to in section 44 were, under the law
applicable to them, under some incapacity, or the said agreement is not
valid under the law to which the parties have subjected it or, failing any
indication thereon, under the law of the country where the award was
made; or
Page 33 of 35
b) The party against whom the award is invoked was not given proper notice
of the appointment of the arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
c) The award deals with a difference not contemplated by or not falling within
the terms of the submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be

separated from those not so submitted, that part of the award which
contains decisions on matters submitted to arbitration may be enforced; or
d) The composition of the arbitral authority or the arbitral procedure was not
in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the
arbitration took place; or
e) The award has not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the country in which, or
under the law of which, that award was made.
2. Enforcement of an arbitral award may also be refused if the court finds that-
a) The subject-matter of the difference is not capable of settlement by

arbitration under the law of India; or
b) The enforcement of the award would be contrary to the public policy of
India.
Explanation. -Without prejudice to the generality of clause (b) of this

section, it is hereby declared, for the avoidance of any doubt, that an
award is in conflict with the public policy of India if the making of the award
was induced or affected by fraud or corruption.
3. If an application for the setting aside or suspension of the award has been
made to a competent authority referred to in clause (e) of sub-section (1) the
court may, if it considers it proper, adjourn the decision on the enforcement of
the award and may also, on the application of the party claiming enforcement
of the award, order the other party to give suitable security.
Enforcement of foreign awards. (S-49) -Where the court is satisfied that the
foreign award is enforceable under this Chapter, the award shall be deemed to
be a decree of that court.
Appealable orders. (S-50)

1. An appeal shall lie from the order refusing to-
Page 34 of 35
a) Refer the parties to arbitration under section 45;
b) Enforce a foreign award under section 48, to the court authorised by law to
hear appeals from such order.
2. No second appeal shall lie from an order passed in appeal under this section,
but nothing in this section shall affect or take away any right to appeal to the
Supreme Court.
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Q-1- Discuss in details legal aid movements.

The Civil Procedure Code, 1908

Bombay Legal Aid Society, 1924

5. Post- independence period

6. Post -Constitution period

Directive Principles of State Policy

7. Reports of several committees on legal aid

8. 42nd Amendment to the Constitution, 1976

9. Criminal Procedure Amendment Act, 2005

323B. Tribunals for other matters.-

3. A law made under clause (1) may—

Organisation of Lok Adalats:-

Cognizance of cases by Lok Adalats.-

Award of Lok Adalat:-

Powers of Lok Adalats:-

2. Without prejudice to the generality of the powers contained in sub-section(1),

Lok Adalats have the competence to deal with a number of cases

1. Compoundable civil, revenue and criminal cases

Advantages of Lok Adalats

What are the advantages of mediation?

a. The country must be a signatory to the New York Convention.

Conditions for its enforceability in India

Q-5- Define the term “Arbitration Agreement”. Explain the provisions of

 One of the intrinsic objectives behind the enactment of Arbitration and

 Section 34 of the Act was amended vide the Arbitration and Conciliation

Q-6- (B) Termination of Arbitration Proceedings.

Q-7- Discuss the provisions relating to finality and enforcement of Arbitral

Application and Scope-

Number and qualification of conciliators-Section 63 fixes the number of

2. Fairness and justice[Section 67(2)]-

3. Confidentiality [Section 70]-

4. Disclosure of the information [Section 70]-

5. Co-operation of the parties with Conciliator [S. 71]-

2. Submission of Statement to Conciliator [Section 65] –

3. Conduct of Conciliation Proceedings [Section 69(1),67(3)]-

4. Administrative assistance [S. 68]-

1. Dispute is not capable of settlement by arbitral process

NOTICE NOT GIVEN TO PARTIES

AWARD BEYOND SCOPE OF REFERENCE

ILLEGALITY IN ARBITRAL PROCEDURE

DISPUTE NOT ARBITRABLE

AWARD AGAINST PUBLIC POLICY

Section 13. Entitlement to Legal Services

Q-11-(A) Arbitral award on agreed Terms

Form and contents of arbitral award on agreed terms (Section-31)

Q-11- (B) Jurisdiction of Arbitral Tribunal

Interim measures ordered by arbitral tribunal. (Section-17)

Q-12- (A) Short note on Arbitral Tribunal

Appointment of arbitrators. (S-11)

1. A person of any nationality may be an arbitrator, unless otherwise agreed

3. Failing any agreement referred to in sub-section (2), in an arbitration with

4. If the appointment procedure in sub-section (3) applies and-

The appointment shall be made, upon request of a party, by the

5. Failing any agreement referred to in sub-section (2), in an arbitration with a

(a) A party fails to act as required under that procedure; or

(b) The parties, or the two appointed arbitrators, fail to reach an

(c) A person, including an institution, fails to perform any function

A party may request the Chief Justice or any person or

7. A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-

8. The Chief Justice or the person or institution designated by him, in appointing an

(b) Other considerations as are likely to secure the appointment of an

9. In the case of appointment of sole or third arbitrator in an international