Arbitration And Conciliation Mod7

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  • 1. Arbitration and Conciliation Module VI
  • 2. 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.
  • 3. Arbitration and Conciliation Act, 1996
    • Repealed previous enactments;
    • Conciliation proceedings have been given legal recognition for the first time.
    • Based on UNCITRAL model law
  • 4. 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 ;
  • 5. 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;
  • 6. 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."
  • 7. 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.
  • 8. 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.
  • 9. 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.
  • 10. 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.
  • 11. Foreign Arbitration
    • an arbitration conducted in a place outside India, where the resulting award is sought to be enforced as a "foreign award".
  • 12. 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.
  • 13. 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.
  • 14. 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;
  • 15. 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
  • 16. 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”
  • 17. End of Module VI