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Arbitration 2
 

Arbitration 2

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    Arbitration 2 Arbitration 2 Presentation Transcript

    • 7/11/2009
      Arb/MS
      1
      THE ARBITRATION AND CONCILIATION ACT, 1996
    • 7/11/2009
      Arb/MS
      2
      Amendment of the law
      U. N. commission on international trade law.(UNCITRAL) --1985 ---the uniformity in the law of Arb procedures and the specific needs of the International Commercial Arb. Practice.
      Rules for Conciliation added.
    • 7/11/2009
      Arb/MS
      3
      Advantages of Arbitration
      • Arbitration affords the parties a choice of the law & a choice of the judgesthat they do want & more important to reject the law which and to reject the particular judge whom they do not want.
      • Binding dispute settlement mechanism
    • 7/11/2009
      Arb/MS
      4
      Objectives of Amendment
      Minimise the supervisory role of the Courts
      Arbitral Tribunal to give reasons for Award
      Permit Arb. Tribunal to use Mediation,Conciliation, other procedures
      Arbitral Award enforced as if it were a decree of the court
      Conciliation proceedings --same status and effect as an Arbitral Award
      Foreign Awards
    • 7/11/2009
      Arb/MS
      5
      Expectations from Arbitration
      An impartial, and expert, tribunal or arbitrator will decide the case.
      The parties can select arbitrators with expertise in the issues and professionals who can be expected to reach reasonable decisions founded upon a mixture of law and industry custom.
      Privacy and confidentiality in contrast to litigation in public forums.
      1. Choose the arbitrator(s);
      2. Choose the issues to be arbitrated;
      3. Choose the place of arbitration;
      4. Choose the substantive law that will control the merits of the dispute;
      5. Choose the procedural rules;
      6. Choose the schedule;
      7. Choose exhibits, witnesses and other evidence to be adduced including arranging for tests and site visits;
      8. Choose the form of relief to be awarded;
      9. Choose the form of the award; and
      10. Agree to facilitate enforcement of the award. [1] Copyright 2004 LexisNexis, Division of Reed Elsevier Inc., King of Prussia, PA • www.mealeys.com
      [2] The practice of choosing the most favorable jurisdiction or court in which a claim might be heard.
    • 7/11/2009
      Arb/MS
      6
      Benefits for the Parties
      1. Choose the arbitrator(s);
      2. Choose the issues to be arbitrated;
      3. Choose the place of arbitration;
      4. Choose the substantive law that will control the merits of the dispute;
      5. Choose the procedural rules;
      6. Choose the schedule;
      7. Choose exhibits, witnesses and other evidence to be adduced including arranging for tests and site visits;
      8. Choose the form of relief to be awarded;
      9. Choose the form of the award; and
      10. Agree to facilitate enforcement of the award.
    • 7/11/2009
      Arb/MS
      7
      In a country signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) the Award may be enforced relatively ( more than 120 signatory countries)
      No such all-encompassing Convention or Treaty or legal regime applies to judgments rendered in national courts.
    • 7/11/2009
      Arb/MS
      8
      ADVANTAGES OF ARBITRATION
      Technical matter : appropriate special qualifications of the Arbitrator.
      Speedier than a court case
      saving in the costs
      unwanted publicity can be avoided
      Convenience of the parties as to time and place
      Arb. Can view subject at any reasonable time
    • 7/11/2009
      Arb/MS
      9
      Conduct of arbitrations by permanent institutions
      the International Chamber of Commerce's International Court of Arbitration,
      World Intellectual Property Organization (WIPO) Arbitration Center,
      American Arbitration Association (AAA),
      China International Economic and Trade Arbitration Commission,
      Indian Council for Arbitration, or the
      International Center for Settlement of Investment Disputes (ICSD),
      International Chamber of Commerce (“ICC”), located in Paris.
      The American Arbitration Association (“AAA”)
      London Court of International Arbitration
      Arbitration Institute of the Stockholm Chamber of Commerce;
    • 7/11/2009
      Arb/MS
      10
      TERMS OF AN ARBITRATION AGREEMENT
      Insert lawful terms as parties wish
      terms must be stated with certainty
      powers of Arbitrator to be clearly stated
      questions to be determined by Arb .
      Any matters for exclusion of reference
      Any technical or legal bar to the parties should be inserted
      Composition of Arbitral Tribunal
    • 7/11/2009
      Arb/MS
      11
      Disputes inappropriate for resolution by arbitration
      French law: bankruptcy matters are inarbitrable. 
      India:
      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;
      matters falling within the purview of the Monopolies and Restrictive Trade Practices Act; dissolution or winding up of a company.
      matters involving morality, status and public policy cannot be referred to arbitration.
    • 7/11/2009
      Arb/MS
      12
      THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2003
      to enable the judicial authority to decide jurisdictional issues,
      to empower the Courts to make reference to arbitration in case all the parties to a legal proceeding enter into an arbitration agreement to resolve their disputes during the pendency of such proceeding before it;
      to provide for the appointment of arbitrators by the Chief Justice of the Supreme Court or the High Court to prevent writ petitions being filed on the basis that it is an administrative order of the Chief Justice.
    • 7/11/2009
      Arb/MS
      13
      THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2003-2
      where the place of arbitration under Part I of is in India, between Indian parties or an international arbitration Indian law will apply.
      completion of arbitrations within one year; at the end of one year the Court will fix up a time schedule for completion of the proceedings until the award is passed.
      empower the arbitral tribunal to pass peremptory orders for implementation of interlocutory orders and in case they are not implemented, to enable the Court to order costs or pass other orders in default.
    • 7/11/2009
      Arb/MS
      14
      THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2003-3
      provide for the Arbitration Division in the High Courts, for the speedy enforcement of awards
      provide provisions for speeding up and completing all arbitrations
      to introduce a new Chapter XI relating to single member fast track arbitral tribunal and award will have to be pronounced within six months and to specify procedure therefore in a new Schedule.
    • 7/11/2009
      Arb/MS
      15
      Arbitration Agreement-Section -7
      (1) an agreement ---to submit all or certain disputes which have arisen or which may arise---in respect of a defined legal relationship, whether contractual or not.
      (2) may be a part of a contract or in the form of a separate agreement
      (3) shall be in writing
    • 7/11/2009
      Arb/MS
      16
      Appointment of an Arbitrator
      Section -11: (1) person of any nationality
      (2) parties to agree on a procedure for appointment of Arb.
      Failing agreement as in above -- the two Arb shall appoint a third Arb who shall act as the presiding Arb---Umpire.
      30 days
      failing which CJ or any person or institution designated by him
      Sec. 16--may rule on its own jurisdiction
    • 7/11/2009
      Arb/MS
      17
      Procedure by Arbitrator
      Delivery of points of claim and defence--similar to pleadings
      particulars of claim and counterclaim
      discovery and inspection of documents
      inspection of property and things by (1) arbitrator (2) parties
      fixing the time and place of hearing
    • 7/11/2009
      Arb/MS
      18
      Procedure
      Claimant (or advocate) opens his case ---also defence to counterclaim
      Claimant calls and examines his witness--who may be cross -examined by the respondent
      Claimant may re-examine him
      Respondent opens his case
      Respondent calls and examines his witness-may be cross examined by the claimant
    • 7/11/2009
      Arb/MS
      19
      If witness is cross examined the Respondent may re-examine him
      Respondent addresses the Arbitrator
      The claimant replies
      Sec.19 ---not bound by CPC.1908 or the IEA 1872---Freedom to agree on the procedure to be followed
      Sec.20 ----place of arb
      Evidence--Oral , Documentary, Heresay,Primary Evidence, Secondary Evidence
    • 7/11/2009
      Arb/MS
      20
      JUDICIAL INTERVENTION
      Sec.8--shall refer the matter to Arb. In a matter which is the subject of an Arb.
      Sec. 35 --finality of Arb. Awards
      Sec. 34--court can set aside
      1.incapacity of the parties.
      2.not valid under law.3.no proper notice.4. beyond the scope of the matter decided to be referred to Arb.5. Composition of the Arb. Tribunal defective.
    • 7/11/2009
      Arb/MS
      21
      Sec. 34--court can set aside Arb. Award
      1.incapacity of the parties.
      2.not valid under law.
      3.no proper notice.
      4. beyond the scope of the matter decided to be referred to Arb.
      5. Composition of the Arb. Tribunal defective.
    • 7/11/2009
      Arb/MS
      22
      No second appeal will lie from an order passsed in an appeal:: right to appeal to the S.C. is not affected Sec.--37
      Mandatory for judicial authority to refer to Arb. Sec.---45
      Limitation act 1963 shall apply to proceedings in Arb. Sec.---43
      Time commenced --on the date on which the request for the dispute to be referred to arb is received by the respondent Sec ---21
    • 7/11/2009
      Arb/MS
      23
      Content of Arb. Award
      Sec. 31--- (1) shall be made in writing& signed by the Arb. Tribunal
      (3) shall state the reasons , unless (a) parties have agreed no reasons be given (b) award under agreed terms under Sec. 30
      (4) state date and place
      (5) signed copy delivered to each party
      (6) interim award
    • 7/11/2009
      Arb/MS
      24
      (7)(a) payment of money: include in the sum for which award is made ---interest to paid from date on which cause of action arose & the date on which award is made
      (b) provision of 18% interest from the date of award to the date of payment------unless the award otherwise directs.
      Award does not transfer a property : parties are directed to execute conveyance or other wise make a transfer of the property in dispute