ARBITRATION & CONCILIATION ACT

Introduction Arbitration is an alternative means of settlement of dispute , besides approaching the court, Every commercial contract has an arbitration clause. Why Arbitration: 1. Court would take a long time to settle a dispute and award a remedy. 2. Court proceedings are always adversarial & hence parties prefer amicable settlement for the dispute. 3. The court proceedings are open to public, hence the trade relations and terms of contract between parties also enters the public domain

Arbitrator : Arbitrator is any disinterested person, an impartial judge of the parties own choosing to dispense equal justice to the parties concerned and to decide the law and facts involves in the matters submitted to it with a view to determine and finally end the controversy. Any interest of the arbitrator is a disqualification of the arbitrator, initially not interested but subsequent acquisition of interest would disqualify from continuing with the proceedings. However if the arbitrator has an interest in the subject matter of reference which is known to the parties before they sign the submission then the award is good notwithstanding his own interest. Authority of arbitrator is limited to the matters lawfully submitted to him.

Arbitration Agreement This is a written agreement to submit present or future differences to arbitration , whether an arbitrator is named therein or not. The following are essential ingredients of an arbitration agreement: There must be an agreement in writing which must show the choice and determination to go to arbitration. The agreement must indicate an intention of parties to have the disputes and differences referred to and decided by arbitrator.

Award This is defined as arbitration award. The decision of the arbitrators is called an award. It is an instrument which contains the decision of an arbitrator or arbitrators as regards matter referred to him or them . An award is a statement by which the arbitrator convey their findings and decisions regarding the subject matter of the submission after hearing the parties in quasi judicial manner. An award in order to be valid must be final, certain, consistent and must decide the matters submitted and no other matter.

Court Court is defined to mean a Civil Court including appellate Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of the suite. References References means a reference to arbitration i.e. actual submission of a particular dispute under the provisions of an arbitration agreement to the arbitrator .

Interim measures by Court.A party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced, apply to a court (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure or protection in respect of any of the following matters, namely: (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party or authorizing any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

 Composition of arbitral tribunal Number of arbitrators.(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.(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.

Arbitration Procedure The parties can set the procedure to be followed if the same is not set forth the arbitral tribunal can set its own procedure subject to the provisions of the act , which are as follows: Equal treatment of parties Determination of rule of procedure Place of arbitration Language Statements of claim and defence Hearing and written proceedings Default of parties Expert appointed by arbitral tribunal Court assistance in taking evidence