Tag: #ArbitrationandMediationAct1996

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.

-Report by MANASWA SHARMA

On July 5, the Delhi High Court, composed of Judge Sanjeev Narula, ruled that it was inappropriate to intervene in the ruling unless there were grounds for allegations of deliberate misconduct and prejudice against scholars. The arbitrator and the court found that if the court does not interfere with such a decision, the well-trained arbitrator will review all the documents in the minutes of the meeting very methodically and evaluate the evidence provided by both parties before concluding.

FACTUAL BACKGROUND

The motion attempted to set aside the arbitration award under Article 34 of the Arbitration and Mediation Act 1996. The sole learned arbitrator acknowledged the claim of the defendant Saptrishi Builders Private Limited (abbreviated as SBPL) and 1,30,02,314.13 rupees with interest on the date of award During the month, Veg Sanchar Vihar Cooperative Group Housing Society Ltd.’s interest was 12% of the prescribed amount. (VSV for short) has appointed SBPL as the contractor for 68 apartments. In Dwarka 6, District 19-B, New Delhi, under the tariffs and conditions stipulated there, SBPL stated that it had performed work under the specifications stipulated in the contract, but VSV refused to pay for the contract. SBPL had previously seen a legal notice dated July 14, 2010, went to the arbitration, and asked VSV to approve the appointment of Mr. P. Bhatia (colleague engineer) as the arbitrator. Controversial decision.

LAWSUIT OF THE APPLICANT

SAAM’s lawyer, Mr. V. V. Gautam, stated:

• The appointment of learned arbitrators allegedly violated Article 43 of the contract, which stipulates that arbitrators must be learned officials. From the Institute of Engineers (India) or Institute of Architects (India). The sole arbitrator, Mr. Vivekanand, did not meet any criteria, so his appointment should be invalid.
• Some people think that because of the subject matter contained in Articles 20-27 (except for Article 25), it does not fall within the scope of arbitration under Article 42(a). The arbitration will only be resorted to after the procedures in paragraph 42 have been implemented.
• It was argued that since the construction project, the quality, quantity, and quality of the materials used, as well as the invoices, have been overdue. 27 They are supervised and protected. The statement of the responsible arbitrator is unfounded and is deliberately disadvantageous to SAAM.

DEFENDANT’S ACTION:

SBPL Attorney, Shekhar Nanavaty made the following argument:

• It has been alleged that the arbitrator was appointed by this court under Article 11 of the Act at the request of the SBPL and therefore cannot currently be appointed to be questioned.
• It was further argued that at the time of appointment or according to Section 13 of the Act, no objections had been raised before the Scientific Arbitrator. No document was recorded demonstrating fraud or forgery by the Referee.
• It was further alleged that the learned arbitrator, after examining the competing allegations and evidence, approved a well-reasoned award that was free from weakness or illegality and should therefore not be interfered with by this court.

REASON’S AND JUDGEMNET OF THE COURT

The honorable court made the following determination:

• The arbitration is fully justified and corresponds to the contractual scheme. There is no contradiction to clause 42 of the contract. and the objection raised on this basis is untenable.
• The conclusions and reasoning of the experienced arbitrator based on the allegations and evidence are reasonable and cannot be objected to once the final invoice has been received. Therefore, the court found no merit, viz. Falsification or fraud in connection with the final invoice.
• The SAAM’s argumentation is not only vague, but it is also completely wrong and legally untenable. After carefully examining the documents, the scientific arbitrator awarded the amount in favor of the SBPL. In the light of the foregoing, the Court of First Instance found the present petition neither to be justified nor to have grounds capable of prejudice to the contested award.