Arbitration and conciliation agreement

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  • Indian legal system is known for its delays and disparities. It is a known fact that our courts are over-burdened with the pending cases and it is almost impossible to provide quick and efficient relief to the aggrieved parties. The A & C act covers an ADR to address this issue especially when it comes to commercial disputes
  • The alternative Dispute Resolution (ADR) mechanism is used all over the world which is more effective, faster and less expensive.
    Under ADR mechanism, there are basically four methods :-—
    (a) Negotiation
    (b) Mediation
    (c) Conciliation
    (d) Arbitration
    While the first two methods are not recognised by law, the methods of conciliation and arbitration are quasi-judicial methods to resolve a dispute with minimum court intervention. The same is now recognised by the Arbitration and Conciliation Act, 1996 (Act 26 of 1996). The courts have always assisted in proper conduct of the arbitration proceedings and enforcement of arbitration awards.
  • Quick decision of any commercial dispute is necessary for smooth functioning of business and industry. In todays world of shrinking boundaries,
    free trade and international commerce have become global necessities. lncreasing competitiveness often leads to conflicts between entrepreneurs, resulting
    in commercial disputes. Arbitration is chosen as a means of effective consensual and speedy dispute resolution. The growing strength and role of India and the Indian industry in the Asian and global economy has seen the country's emergence as a force to be contended with. Increasing foreign direct investment and other forms of collaboration by foreign companies have witnessed disputes between Indian and foreign parties. This has raised the need for an act that will address commercial disputes quickly and efficiently
  • If a party approaches court despite the arbitration agreement, the other party can raise objection. However, such objection must be raised before submitting his first statement on the substance of dispute. Such objection must be accompanied by the original arbitration agreement or its certified copy. On such application the judicial authority shall refer the parties to arbitration. Since the word used is “shall”, it is mandatory for judicial authority to refer the matter to arbitration. [section 8]. However, once first statement to court is already made by the opposite party, the matter has to continue in the court. Once an application is made by other party for referring the matter to arbitration, the arbitrator can continue with arbitration and even make an arbitral award.
  • ne of the major defects of earlier arbitration law was that the party could access court almost at every stage of arbitration - right from appointment of arbitrator to implementation of final award. Thus, the defending party could approach court at various stages and stall the proceedings. Now, approach to court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral Award is made. Appeal to court is now only on restricted grounds. Of course, Tribunal cannot be given unlimited and uncontrolled powers and supervision of Courts cannot be totally eliminated.
    ARBITRATION ACT HAS OVER-RIDING EFFECT - Section 5 of Act clarifies that notwithstanding anything contained in any other law for the time being in force, in matters governed by the Act, the judicial authority can intervene only as provided in this Act and not under any other Act..
  • Conciliation - Part III of the Act makes provision for conciliation proceedings. In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give any award. He only helps parties in arriving at a mutually accepted settlement. After such agreement they may draw and sign a written settlement agreement. It will be signed by the conciliator. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award. Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator.
  • OFFER FOR CONCILIATION - The conciliation proceedings can start when one of the parties makes a written request to other to conciliate, briefly identifying the dispute. The conciliation can start only if other party accepts in writing the invitation to conciliate. Unless there is written acceptance, conciliation cannot commence. If the other party does not reply within 30 days, the offer for conciliation can be treated as rejected. [section 62]
  • All matters of a civil nature or breach of contract or disputes of movable or immovable property can be referred to conciliation
  • Matters of criminal nature, illegal transactions, matrimonial matters like divorce suit etc. cannot be referred to conciliation.
  • Power of High Court to make rules.- The High court may make rules consistent with this Act as to all proceedings before the
    court under this Act.
    83.Removal of difficulties.- (1) If any difficulty arises in giving effect to the provisions of this Act, the central Government may, by
    order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be
    necessary or expedient for removing the difficulty:
    Provided that no such order shall be after the expiry of a period of two years from the date of commencement of this Act.
    (2) Every order made under this section shall, as soon as may be after it is made, be laid before each Houses of Parliament.
    84.Power to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the
    provisions of this Act.
    (2) Every rule made by the Central Government under this Act shall be laid, as soon as may be, after it is made before each House
    of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more
    successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions
    aforesaid, both Houses agree in making may modification in the rule or both Houses agree that the rule should not be made, the
    rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such
    modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
    85.Repeal and savings.- (1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940)
    and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
    (2) Notwithstanding such repeal,-----
    (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into
    force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after
    this Act comes into force;
    (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this
    Act, be deemed respectively to have been made or issued under this Act,
    86.Repeal of Ordinance 27 of 1996 and saving.- (1) The Arbitration and Conciliation (Third) Ordinance, 1996 (Ord.27 of 1996) is
    hereby repealed.done or any action taken in pursuance of any provision of the said Ordinance shall be deemed to have been made,
    done or taken under the corresponding provisions of this Act.
  • · On 25.07.2005, Satyam Computers filed a request for arbitration with the London Court of International Arbitration as mentioned in Shareholders
    Agreement.
    · London Court of International Arbitration passed an award directing the VGE to transfer the shares to Satyam Computers.
    · Satyam Computers filed a petition to recognize and enforce the award before the United States District Court, Eastern District Court of Michigan (US Court).
    · The VGE entered appearance to defend this proceeding before the US Court by filing a cross petition. In this cross petition, it objected to the
    enforcement of the Award which ordered transfer of shares which was in violation of Indian Laws and Regulations specifically the Foreign Exchange Management Act, 1999 (FEMA) and its notifications.
    · The VGE filed a suit before the Ist Additional Chief Judge, City Civil Court, Secunderabad on 8.4.2006 seeking declaration to set aside the award and permanent injunction on the transfer of shares under the Award.
    · On 15.6.2006, the District Court passed an interim order of injunction, restraining Satyam Computers from seeking or effecting the transfer of
    shares either under the terms of the Award or otherwise.
    · Challenging the said order, Satyam Computers filed an appeal before the High Court of Andhra Pradesh. The High Court admitted Satyam
    Computers appeal and directed interim suspension of the order of the District Court but made it clear that Satyam Computers would not affect the
    transfer of shares until further orders.
    · Challenging the said order, the VGE filed an appeal before the High Court. On 27.2.2007, the High Court dismissed the appeal holding that the award cannot be challenged even if it is against the public policy and in contravention of statutory provisions.
    Against the said order, the VGE preferred the above appeal byway of special leave petition.
  • Arbitration and conciliation agreement

    1. 1. Arbitration & Conciliation Act, 1996
    2. 2. Introduction An Act covering:  domestic arbitration international commercial arbitration enforcement of foreign arbitral awards conciliation Modern concept of harmonious working partnership between the Court and Arbitration. Has far reaching effect on reducing court litigation Gives more importance to Arbitration and Conciliation by adding speed and economy to settlement of disputes.
    3. 3. Alternative Dispute Resolution (ADR) Mechanism used across the world - effective, faster and less expensive. 4 methods of ADR: Negotiation – unrecognized Mediation – unrecognized Conciliation – recognized Arbitration - recognized Recognized by the Arbitration and Conciliation Act, 1996
    4. 4. Necessity of the Act Shrinking Boundaries, Free trade & International Commerce have become global necessities. Competition often leads to conflicts between entrepreneurs resulting in commercial disputes. Growing strength and role of India in the global economy Increasing FDI and other forms of collaboration -increasing disputes between Indian and foreign parties Quick redressal to commercial disputes through private Arbitration. Settlement of dispute in an expeditious, convenient, inexpensive and private manner so that they do not become the subject of future litigation between the parties.
    5. 5. Acts addressing ADR in India The law on arbitration in India was substantially contained in three enactments, namely: The Arbitration (Protocol & Convention) Act, 1937 The Arbitration Act, 1940 The Foreign Awards (Recognition and Enforcement) Act, 1961.
    6. 6. The Arbitration & Conciliation Act, 1996 An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. "Arbitration is the reference of dispute between not less than two parties, for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.”
    7. 7. Law Based on UNCITRAL Model Law The present Act is based on model law drafted by United Nations Commission on International Trade Laws (UNCITRAL), both on domestic arbitration as well as international commercial arbitration, to provide uniformity and certainty to both categories of cases.
    8. 8. WHAT CAN BE REFERRED TO ARBITRATION All disputes of a civil nature or quasi-civil nature which can be decided by a civil court can be referred to arbitration: Relating to property Right to hold an office Compensation for non-fulfillment of a clause in a contract Disputes in a partnership
    9. 9. Disputes excluded from the Arbitration Act The law has given jurisdiction to determine certain matters to specified tribunal only; these cannot be referred to arbitration: Matters involving questions about validity of a will. Relating to appointment of a guardian. Pertaining to criminal proceedings Relating to Charitable Trusts Winding up of a company Matters of divorce or restitution of conjugal rights Lunacy proceedings Disputes arising from an illegal contract Insolvency matters, such as adjudication of a person as an insolvent. Matters falling within the purview of the Competition Act.
    10. 10. Scheme of the Act The Act is divided in to the following parts (a) Part I - Domestic arbitration. (b) Part II - Enforcement of foreign awards. (c) Part III - Conciliation procedures. (d) Part IV - Supplementary provisions.
    11. 11. Arbitration Agreement Arbitration Agreement - 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. Power to refer parties to arbitration when there is an arbitration agreement.
    12. 12. Arbitration Agreement Interim Measures by Court appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings protection in respect of preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement securing the amount in dispute the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute interim injunction or the appointment of a receiver; Any other interim measure of protection as may appear to the Court to be just and convenient
    13. 13. Appointment of Arbitrator Any person can be appointed as an arbitrator. Generally impartial and independent persons – C A’s, engineers, retired judges, advocates and other professionals are preferred. Parties are free to determine the number of arbitrators Number shall not be an even number. The arbitrator shall disclose in writing to the parties anything that may give rise to justifiable doubts about his independence or impartiality.
    14. 14. Appointment of Arbitrator If they are unable to agree- Each party will appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator who will act as a presiding arbitrator. If not appointed within 30 days, the party can request Chief Justice of High Court to appoint an arbitrator. In case of international commercial dispute, the application for appointment of arbitrator has to be made to Chief Justice of India.
    15. 15. Termination of Arbitrator Appointment of Arbitrator can be challenged only if Circumstances exist that give rise to justifiable doubts as to his independence or impartiality He does not possess the qualifications agreed to by the parties.
    16. 16. Termination of Arbitrator The mandate of an arbitrator shall terminate if--- he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and he withdraws from his office or the parties agree to the termination of his mandate. where he withdraws from office for any reason; or by or pursuant to agreement of the parties. 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.
    17. 17. Conduct of Arbitral Proceedings The Arbitral Tribunal is not bound by Code of Civil Procedure, 1908 or Indian Evidence Act, 1872. The parties to arbitration are free to agree on the procedure to be followed by the Arbitral Tribunal. Law of limitation (1963) applicable Flexibility in respect of procedure, place & language. Submission of statement of claim & defense maybe amended/ supplemented at any time Hearings & Written Proceedings – at the discretion of the tribunal  Can be oral at the request of either party Settlements during Arbitration
    18. 18. Arbitral Award The decision of Arbitral Tribunal will be by majority The arbitral award shall be in writing and signed by the members of the tribunal. States the reasons for the award unless the parties have agreed that no reason for the award is to be given. The award should be dated and place where it is made should be mentioned. Copy of award given to each party. Tribunal can make interim award also.
    19. 19. Arbitral Award - Appeal An arbitral award may be set aside by the Court only if; The party furnishes proof of some incapacity the arbitration agreement is not valid under the law to which the parties have subjected it the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties the arbitral award is in conflict with the public policy of India.
    20. 20. Cost of Arbitration Fees and expenses of arbitrators and witnesses, legal fees and expenses, administration fees of the institution supervising the arbitration and other expenses. Tribunal can decide the cost and share of each party. If parties refuse to pay the costs, the Arbitral Tribunal may refuse to deliver its award; thus any party can approach Court. The Court will ask for deposit from the parties and on such deposit, the award will be delivered by the Tribunal. Then Court will decide the costs of arbitration and shall pay the same to Arbitrators. Balance, if any, will be refunded to the party.
    21. 21. Intervention by Court The earlier arbitration law was that the party could access court almost at any stage of arbitration. Now, approach to court has been drastically curtailed. If an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself & the arbitration proceedings are continued The aggrieved party can approach Court only after Arbitral Award is made. Appeal to court is now only on restricted grounds. Tribunal cannot be given unlimited and uncontrolled powers and supervision of Courts cannot be totally eliminated. ARBITRATION ACT HAS OVER-RIDING EFFECT
    22. 22. Conciliation The act makes provision for conciliation proceedings. In conciliation proceedings: There is no agreement for arbitration. Conciliation can be done even if there is arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give any award. Helps parties in arriving at a mutually accepted settlement.
    23. 23. Conciliation In such agreement they may draw and sign a written settlement agreement. Duly signed by the conciliator However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award. Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator.
    24. 24. Offer for Conciliation The conciliation proceedings can start when one of the parties makes a written request to other to conciliate, briefly identifying the dispute. The conciliation can start only if other party accepts in writing the invitation to conciliate. Unless there is written acceptance, conciliation cannot commence. If the other party does not reply within 30 days, the offer for conciliation can be treated as rejected
    25. 25. What Can Be Referred To Conciliation Matters of a – Civil nature Breach of contract Disputes of movable or immovable property
    26. 26. What Cannot Be Referred To Conciliation Matters of – Criminal nature Illegal transactions Matrimonial matters like divorce suit etc.
    27. 27. Supplementary Provisions The High Court has the power to make rules under this act Removal of difficulties by central Government through provisions made under the Act Rules made by Central Government subject to approval by parliament The present Act overrules the previous Acts
    28. 28. Supreme Court Judgment, Civil appeal under ‘Arbitration And Conciliation Act’ for setting aside of Foreign Award
    29. 29. Background Cases Satyam VGE 1) London Court of International Arbitration 2) United States District Court, Michigan 5) High Court of Andhra Pradesh 3) Cross Petition 4) 1st Addl. Chief Judge, Civil Court, Secunderabad 6) Appeal
    30. 30. International Commercial Arbitration It means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is--- (i) an individual who is a national of, or habitually resident in, any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country
    31. 31. How we are Different ?StudEase Tutorials was set up in response to the growing need for nurturing professionals. Regular Guest Lectures by eminent Company Secretaries. World class infrastructure. Motivational Lectures. Group Discussion sessions for Professional students. Presentations. Live Trade Exposure.
    32. 32. Guest Lectures Secretary, DBA Official from Securities Exchange Board of India ( SEBI ) Official from CRISIL ( Best rating agency in India ) Company Secretaries with industry experience. Addl. District Attorney, Patiala. Advocate, Supreme Court of India.
    33. 33. Visits To District Bar Association Consumer Courts Sales Tax Commisionerate Annual General Meeting Vardhman Textiles Limited.
    34. 34. RESULTS..
    35. 35. Results Speak Louder All India Rank 1 CS Foundation 2012 Best results. Expert faculty for separate areas of coverage. We have associated CA’s , Lawyers , CS. Industry exposure.
    36. 36. Hindustan Times Article dated 13th April,2014 StudEase – An institute with a difference.  StudEase is linked with the journey of an individual to find out the true meaning of Education. This track of quality education has been laid down by diverse skills and qualification of the founder member of institute Mr. Gagan Deep Singh ( B.Com, MBA, CS, LLB ). The success of the students is inspiring and so is the faith of students in StudEase Tutorials which has helped the institute to emerge as one of the preferred institute for CS coaching in the region. To provide the students with the knowledge and practical approach towards the subjects the institute has started live trading exposure sessions, visit to corporates and lectures by guest faculty with industry experience.
    37. 37. “ We , at StudEase Tutorials believe that there is no substitute to hardwork, especially if one intends to join India’s premiere corporate house.” The dream of the Director to start an institute with world class infrastructure and quality education which helped the institute to bag ALL INDIA RANK 1 CS Foundation 2012 in the initial year of its set up. The institute has the dedicated team of professionals - CA, CS and Advocates.

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