ARBITRATION is a means of resolving a disagreement between two or more parties by the involvement of a third party. Parties can also use a permanent arbitrator to settle their disagreements. Institutions such as the Indian Council of Medical Research Arbitration, the Chamber of Commerce, and other similar institutions are available. Arbitration is defined by Halsbury as follows:
“Arbitration is the process of resolving a dispute between at least two parties.” A person or body that makes a decision after hearing both sides in a judicial way is a person who isn’t a judge in a court of competent jurisdiction.

  1. PRIVACY is guaranteed by arbitration. The procedures in a civil court are held in public, which often embarrasses the parties.
  2. Arbitration allows you to choose an arbiter who is a specialist in the dispute’s subject matter. The arbitrators may be professionals who can settle the issue fairly and quickly since they are familiar with the trade or industry’s customs and procedures.
  3. The arbitration can take place in a location that is convenient for both parties. It isn&’t necessary for it to be a formal platform. It is sufficient to have a small office cabin. Similarly, the parties can use any language they want.
  4. Even the rules that govern arbitration hearings might be voluntarily agreed upon by both parties. A court case is an expensive endeavor. Advocates, court costs, processing fees, and other incidental charges must be paid by the claimant. The costs of arbitration are lower, and the parties frequently argue their own claims. There are few procedural stages in the arbitration, and there are no court fees.
  5. Arbitration is a speedier and more efficient method of resolving disputes. The court must operate on its own schedule and take an unusually long time to resolve cases. It is a cliche to say that there are millions of unsolved cases pending in the courts.

ARBITRATION Agreement

Arbitration Agreement implies an agreement between the parties to submit all or certain disputes that have occurred or may arise between them in respect of a defined legal relationship, whether contractual or not, to arbitration, according to Section 7(1) of the Act. An arbitration agreement should be in writing and both parties should sign it. It doesn’t have to be in a particular format. The intention to go to arbitration must, however, be proved.

An arbitration agreement can be reached via letter, telex, telegram, fax, or other means. When creating an Arbitration Agreement, extreme caution should be exercised. The statute places a strong emphasis on party autonomy. In most passages, it assumes that unless particular matters are specifically included in the Arbitration Agreement, the arbitral tribunal will have the authority to decide on them. With the exception of a few mandatory requirements in the Act, practically all of the provisions are subject to the parties’ agreement. The number of arbitrators, the mechanism for appointing arbitrators, the rules of procedure, the site of arbitration, the language of the arbitration proceedings, the procedure for challenging an arbitrator, and other factors are up to the parties to decide.

In general, any disagreement of a civil or quasi-civil nature that can be resolved by a civil court can be referred to as arbitration. Arbitration can be used to resolve disputes involving property, the right to hold any office, questions of marriage or maintenance and money, compensation for non-fulfillment of a contract clause, partnership issues, and so on. With the permission of the court, the official receiver or the official assignee can submit conflicts between an insolvent and his creditors to arbitration. Thus, arbitration can be used to resolve conflicts arising out of a defined legal relationship, whether contractual or not.

Although anyone can be nominated as an arbitrator, normally impartial and independent people in whom the parties have faith should be chosen and appointed. Chartered accountants, company secretaries, engineers, retired judges, and other experts are frequently sought.

Parties are free to choose the number of arbitrators they want, as long as it is not an even number. If the Arbitration Agreement is silent on this point, the arbitral tribunal will be made up of only one arbitrator. Each side will nominate one arbitrator, and the two appointed arbitrators will jointly appoint a third arbitrator, who will be the presiding arbitrator, in circumstances where three arbitrators are required.

The Arbitrator should allow the parties to the reference a reasonable chance to appear before the Arbitral Tribunal in person or through an authorized representative and present evidence in support of their respective claims. Whether the information is delivered orally or in the form of a document, an arbitrator shall not receive information from one side that is not disclosed to the other.

Arbitrators must be impartial and disinterested. He must have no financial or other vested interest in any of the disputants or the outcome of the award.
Arbitration is a private dispute-resolution tribunal. As a result, if either party to the reference or the arbitral tribunal objects to admission, the public may not be allowed. Section 12 states that before accepting his appointment, the arbitrator must inform the parties in writing of any facts that could give rise to reasonable doubts regarding his independence or impartiality. The same is true throughout the arbitral procedures, and if such situations emerge after his appointment, he must notify the parties in writing. The Sixth Schedule to the Act, established by the Amendment Act of 2016, specifies the format of disclosure to be provided by the arbitrator.

The 1996 Act authorizes arbitrators to rule on their own jurisdiction, including any criticisms to the validity or existence of the arbitration agreement, and for that purpose, a) An arbitration clause that is part of a contract will be treated as an agreement separate from the other terms of the contract, and b) A decision by the arbitral tribunal that the contract is null and void will not ipso jure imply the invalidity of the arb agreement.

References

AN OVERVIEW OF THE LAW ON ARBITRATION (wirc-icai.org)

This article is written by Vidushi Joshi student at UPES, Dehradun.

The present case analysis has been done by Vanshika Arora.

Case Number

Appeal (civil) 1382  of  2002

Equivalent Citation 

2002 (1) RAJ 381 (SC)

Bench: 

Hon’ble Justice GB Pattanaik, Hon’ble Justice SN Phukan, Hon’ble Justice SN Varivan 

Date of Judgment: 

20th February 2002

Relevant Act 

Arbitration and Conciliation Act, 1966

Relevant Sections 

Sections 4, 5, 10, 11, 16, 34 

Facts of the Case

The Appellant and Respondent had a family dispute over business and properties. For which two arbitrators were hired (Mr. Pramod Kumar Khaitan, and Mr.Sardul Singh Jain). An award was passed by the two arbitrators on 6th October 1996. On 22nd December 1997, the first respondent filed an application in Calcutta High Court for setting aside the award. The contention was that, under Section 10 of The Arbitration and Conciliation Act, 1966, an even number of arbitrators cannot be present. Since in the present matter, two arbitrators were present, it was contended that arbitration was void and invalid. On the same line of reasoning, it was also contended that the award is henceforth also void and invalid. A single judge of the Calcutta HC set aside the award on 17th November 1998, subsequently, an appeal dated 18th May 2000 was also dismissed. Thereon, the matter was bought before the SC.

Issues before the Court

Whether Section10 is a non-derogable provision in Arbitration? Whether a mandatory provision of the Act can be waived by the parties? 

Ratio Decidendi 

The appellant contended that Section 10 is a mandatory provision of the Act. In the present matter, the Arbitral tribunal was not validly constituted, hence it should be void and invalid. Moreover, if the constitution of the arbitrators is invalid, it should also render the award void. The appellant also contended that Section 16 does not provide for any challenge of the constitution of the Arbitration Tribunal. Therefore, an invalidly constituted tribunal deems lack of jurisdiction. It was also contended that in the case of an even number of arbitrators, they may have conflicting opinions, which may result in a fresh arbitration altogether. This could be a waste of time and energy for both parties, and an infringement of public policy. Hence, Section 10 should be considered a non-derogable provision. In the court’s opinion, that the question, whether Section 10 is non-derogable would depend on whether a party has a right to object to the composition of the arbitral tribunal, and at what stage. 

The decision of the Court

 The court held the contention of Section 10 is a non-derogable provision, unacceptable. Since it cannot be said that an arbitration agreement becomes invalid when only two arbitrators are appointed. In such a case, Section 11(3), the two arbitrators can appoint a third one. The court held that an appointment of the third arbitrator can be done at a later stage, i.e when the two differ, and need not be mandatorily done at the initial stages of the agreement. Further, the court held that an award can only be set aside under the provisions of Sections 12, 13, 16, and 34. An award cannot be set aside if the composition of the arbitral tribunal and proceedings are in accordance with the agreement between the parties. The right to challenge an award, in case tribunal and proceedings are not in accordance, is also restricted. In a sense that, even if the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties but if such composition or procedure is in accordance with the provisions of the Act, then the party cannot challenge the award. 

LATEST POSTS


ARCHIVES