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Arbitration And Conciliation  Mod7
 

Arbitration And Conciliation Mod7

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    Arbitration And Conciliation  Mod7 Arbitration And Conciliation Mod7 Presentation Transcript

    • Arbitration and Conciliation Module VI
    • Law of Arbitration
      • An ADR technique
      • Contained in Arbitration Act, 1940
      • The Arbitration (Protocol and Convention) Act, 1937 and;
      • The Foreign Awards (Recognition and Enforcement) Act, 1961.
    • Arbitration and Conciliation Act, 1996
      • Repealed previous enactments;
      • Conciliation proceedings have been given legal recognition for the first time.
      • Based on UNCITRAL model law
    • Objectives of A & C Act
      • consolidate and amend the law relating to domestic arbitration;
      • international commercial arbitration and ;
      • enforcement of foreign arbitral awards ;
      • Adoption of UNCITRAL Model law for uniform ADR system ;
    • Features of A & C Act
      • Autonomy of parties in conducting the arbitral proceedings;
      • Supervisory role of courts minimized;
      • Arbitrators can be appointed by Chief Justices;
      • Arbitral Award must contain reasons;
    • What is Arbitration?
      • A alternative dispute resolution method ;
      • an independent, neutral third person ("arbitrator") is appointed to hear and consider the merits of the dispute and renders a final and binding decision called an award.
      • The process is similar to the litigation process as it involves adjudication,;
      • The parties choose their arbitrator and the manner in which the arbitration will proceed.
      • The decision of the arbitrator is known as an "award."
    • Matters that cannot be referred to Arbitration
      • Matrimonial matters, like divorce or restitution of conjugal rights;
      • matters relating to guardianship of a minor or other person under disability;
      • testamentary matters, for example, questions about the validity of a will;
      • insolvency matters, such as adjudication of a person as an insolvent;
      • criminal proceedings;
      • questions relating to charities or charitable trusts;
      • dissolution or winding up of a company.
    • Arbitration Agreement
      • Must be in writing;
      • Form is not specified;
      • Can be a clause in ‘contract agreement’
      • it can be gathered from several documents or from correspondence consisting of a number of letters, fax messages, telegrams or telex messages.
    • Domestic Arbitration
      • arbitration which takes place in India, when the subject matter of the contract, the merits of the dispute and the procedure for arbitration are all governed by Indian law or
      • when the cause of action for the dispute has arisen wholly in India or where the parties are otherwise subject to Indian jurisdiction.
    • International Arbitration
      • Arbitration becomes “International” when at least one of the parties involved is resident or domiciled, outside India or the subject matter of the dispute is abroad.
      • The law applicable to an arbitration proceedings may be the Indian law or a foreign law, depending on the terms of the contract in this regard and the rules of conflict of laws.
    • Foreign Arbitration
      • an arbitration conducted in a place outside India, where the resulting award is sought to be enforced as a "foreign award".
    • Ad Hoc Arbitration
      • arbitration agreed to and arranged by the parties themselves without recourse to an Institution.
      • The proceedings are conducted by the arbitrator (s) as per the agreement between the 'parties' or with concurrence of the parties.
      • It can be domestic, international or foreign arbitration.
    • Making of Arbitral Award
      • Notice
      • Statements of both the parties must be considered;
      • Expert assistance may be obtained;
      • Arbitral Tribunal has certain powers of civil court;
      • Arbiter has to make the ‘AWARD’ after complying with PNJ.
    • Recourse against Arbitral Award
      • a party was under some incapacity,
      • the arbitration agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, under the law for the time being in force;
      • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;
    • Recourse against Arbitral Award
      • 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 matters beyond the scope of the submission to arbitration
      • the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force;
      • the arbitral award is in conflict with the public policy of India
    • Conciliation
      • A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party, who helps lower tensions, improve communications, and explore possible solutions. Conciliation is similar to mediation, but may be less formal.
      • Decision is known as “Settlement Agreement”
    • End of Module VI