notes of PPLE as per PTU

1. PROFESSIONAL PRACTICE,
LAW & ETHICS
Arbitration, conciliation and ADR(Alternative dispute resolution) system
SHUBHAM SHARMA
Department of civil engineering
BGIET, SANGRUR

2. What is Arbitration?
◦ Arbitration is a private dispute resolution process that parties may choose as an alternative
to going to court. The arbitration process is consensual in that the parties must agree to refer
their dispute to arbitration. The arbitration agreement (typically referred to as an ‘arbitration
clause’) is usually contained in the main contract between the parties. However, parties may
separately agree to arbitration after a dispute has arisen.
◦ In arbitration proceedings the dispute is decided either by a single arbitrator or a panel of
arbitrators (usually three in number). An arbitrator performs a similar role to that of a judge in that
they are responsible for managing the proceedings to ensure the parties to the dispute have a
reasonable opportunity of presenting their case. At the conclusion of the arbitration, the arbitrator
will deliver an award which is final and binding on the parties.
◦ Arbitration is preferred by the people as it is less expensive than litigation. It provides for speedy
trials and settlement of the disputes is more informal and simpler compared to courtroom trials

3. Types of arbitrations on the basis of jurisdiction
 Domestic Arbitration
◦ ‘domestic arbitration’ means an arbitration in which the arbitral proceedings must necessarily be
held in India, and according to Indian substantive and procedural law, and the cause of action for
the dispute has completely arisen in India, or in the event that the parties are subject to Indian
jurisdiction.
◦ International Arbitration
◦ When arbitration happens within India or outside India containing elements which are foreign
in origin in relation to the parties or the subject of the dispute, it is called as International
Arbitration. The law applicable can be Indian or foreign depending upon the facts and circumstances
of the case and the contract in this regard between the respective parties.

4. Types of arbitrations based on proceedings
 Institutional arbitration
◦ Institutional arbitration is a process where specialized institution administers the arbitration. The parties
involved in the arbitration agree on the institution that will administer the process the institution has its own rules and
administration to help with the arbitration. Arbitration centre's : (e.g.) ICC, CRCICA, ICSID.
 Ad-hoc arbitration
◦ If the parties agree among themselves and arrange for arbitration, it is called Ad - hoc Arbitration without having an
institutional proceeding. It can either be domestic, international or foreign arbitration. Ad Hoc Arbitration means
that the arbitration should not be conducted according to the rules of an arbitral institution. Since, parties do
not have an obligation to submit their arbitration to the rules of an arbitral institution; they are free to state their own
rules of procedure.
 Fast track arbitration
◦ It is s a method, which is time dependent in the provision of the arbitration and conciliation act. Its procedure
is established in a way that it has abandoned all the methods, which consume time, and uphold the simplicity which is
the originally the prime purpose of such arbitration.

5. Arbitration and Conciliation Act 1996 vs Arbitration Act of 1940
Terms Arbitration and Conciliation Act, 1996 Arbitration Act, 1940
Objective to encourage and facilitate alternative
dispute resolution (ADR) methods.
Act was primarily focused on arbitration in
India.
Scope covers both domestic and international
arbitration and conciliation.
Cover only domestic arbitration.
Arbitration
Agreement
Act emphasizes the importance of a
written arbitration agreement.
the 1940 Act did not provide as much clarity
and flexibility as the 1996 Act.
Appointment of
Arbitrators
It provides detailed procedures for
appointing arbitrators.
The appointment process for arbitrators was
less defined.
Conciliation The Act includes specific provisions for
conciliation.
The Act did not specifically address the
process of conciliation.

6. Terms Arbitration and Conciliation Act, 1996: Arbitration Act, 1940:
Challenging
Awards
The grounds for challenging arbitration
awards are more clearly defined.
The grounds for challenging arbitration
awards were not as clearly specified.
Interim Measures
and Remedies
It grants arbitrators the authority to issue
interim measures to protect parties' rights
during arbitration.
The 1940 Act did not have as
comprehensive provisions for interim
measures.
Confidentiality The Act emphasizes the confidentiality of
arbitration and conciliation proceedings.
The concept of confidentiality was not as
explicitly addressed.
Enforcement of
Awards
Awards issued through arbitration are
enforceable as court judgments.
Awards had to go through a separate
process for enforcement, unlike the 1996
Act, which treats them like court
judgments.
International
Perspective
The 1996 Act incorporates the UNCITRAL
Model Law on International Commercial
Arbitration for international arbitration.
It does not Act incorporates the
UNCITRAL Model Law on International
Commercial Arbitration.

7. expert determination
◦ Expert determination is a procedure in which a dispute or a difference between the parties is
submitted, by agreement of the parties, to one [or more] experts who make a determination on
the matter referred to it. The determination is binding, unless the parties agreed otherwise.
Technical or other non-legal experts often play an important role in solving commercial disputes.
◦ In state courts and arbitration proceedings, experts are frequently appointed by judges and
arbitrators to assist them in making decisions to do with technical and other non-legal issues requiring
expert knowledge. During arbitration proceedings, parties often seek the support of party-appointed
experts to assist them in arguing their case

8. extent of judicial intervention
◦ when a dispute arises with regard to the appointment of an arbitrator, necessarily requires the
court’s intervention. During the proceedings, the court’s intervention is required to assist the
proceedings. The court can provide assistance by providing interim protection or otherwise. Finally,
when the arbitral award is declared, judicial intervention is required for either the enforcement of
the award or to challenge it.
◦ The arbitration process is successful if there is minimum judicial interference; the key principle of
arbitration is less judicial interference. It can only be accomplished if the judiciary has no significant
impact on the arbitral awards. How much the court should interfere in the arbitration process is the
question to be answered. Too much interference would hinder the proceedings and development
of the arbitration. Too little might lead to the infringement of the principle of natural justice.

9. International commercial arbitration
◦ International commercial arbitration is a means of resolving disputes arising under international
commercial contracts. It is used as an alternative to litigation and is controlled primarily by the
terms previously agreed upon by the contracting parties, rather than by national legislation or
procedural rules. Most contracts contain a dispute resolution clause specifying that any disputes
arising under the contract will be handled through arbitration rather than litigation. The parties
can specify the forum, procedural rules, and governing law at the time of the contract.
◦ International commercial arbitration helps to resolve disputes among the international parties
arising out of the internal commercial agreements. Arbitration and Conciliation Act defines
international commercial arbitration as disputes arising out of the legal relationship
where one of the parties is a citizen, resident, or habitually residing out of India.
International commercial arbitration is used by the traders of different countries as a way of
settling their business conflicts.

10. Benefits of international domestic arbitration
1. IA resolve disputes more swiftly than traditional court litigation since there are only limited appeals from
arbitration awards.
2. IA is less expensive than traditional court litigation.
3. IA provide better-quality justice, since many domestic courts are overburdened, which does not always allow
judges sufficient time to produce legal decisions of high quality.
4. Clients can play an active role in selecting an arbitrator who is an industry expert in International Arbitration,
rather than a generalist like many domestic court judges.
5. IA is flexible, and the individual parties to a dispute play a significant role in selecting the procedure that is
most appropriate for resolving their international dispute, deciding on whether to include procedures such as
document production.
6. International Arbitration is neutral. This is very important for cross-border transactions, since it avoids the
possibility of a “home court” advantage for one party.

11. Arbitration agreement
◦ Arbitration agreement means 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. The parties make an agreement that instead of
going to the court, they shall refer the dispute to arbitration.
Kinds of arbitration agreement
Arbitration clause Submission agreement
Future disputes Disputes which have already arisen
Short and broad Detailed and specific setting out the exact
dispute
Provide clause in the main contract After dispute arisen

12. Essentials of an Arbitration Agreement
1. There must be a dispute that should take place, only then the agreement will be valid. The presence of a
dispute amongst the parties is an essential condition for the contract to take place.
2. Another essential is the written agreement. An agreement related to the arbitration must always be in writing.
An arbitration agreement will be considered as a written agreement when:
1. It has been signed by both parties and it is in the form of a document.
2. It can be the exchange of the telex, the letters, the telegrams, or any other means of communication
which provides the record of the exchange and the agreement for arbitration.
3. There must be an exchange of statements between the parties.
3. The third essential intention. The intention of the parties while forming the contract is of utmost importance
and it forms the basis of the agreement.
4. The fourth essential element is the signature of the parties. The signature of the parties is an essential
element to constitute an arbitration agreement. The signature can be in the form of a document signed by
both the parties to the contract which comprises all the terms and conditions

13. Validity of the Arbitration Agreement
1. Without a valid arbitration agreement, no arbitration can take place or award can be rendered. In other words,
a valid arbitration agreement is the cornerstone of any arbitration proceedings.
2. The agreement be in writing, meaning —according to Article II(2) of the NY Convention— “an arbitral clause
in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or
telegrams”.
3. It be as simple as possible, dealing with any existing or future disputes in connection with a legal relationship
(standard clauses tend to use very broad language).
4. The parties check in advance that it concerns a matter capable of settlement by arbitration.
5. It be analysed in advance that the parties to the arbitration agreement have legal capacity under the law
applicable to them.
6. The agreement be valid under the generally applicable principles of contract law, with special consideration
for the law that the parties have chosen and, if there is no such choice, the law of the seat of the arbitration.

14. Reference and interim measures by court
◦ Interim measure means any temporary measure, by which, at any time prior to the delivery of
the final award, to provide a means of preserving assets out of which a subsequent award may be
satisfied or to preserve evidence that may be relevant and material to the resolution of the dispute.
◦ Arbitration has become the most preferred method of alternative dispute resolution which parties
resort to for resolution of any commercial dispute in a contract which contains an arbitration clause or
an arbitration agreement that exists between the parties. Although it is well known that the time
required for resolution of disputes through arbitration is much lesser than the time required by any
court of law, still it takes considerable time to complete the entire process of arbitration – right from
invocation of arbitration to enforcement of award. Therefore, it is imperative that some interim
measures or interim relief be granted by the arbitral tribunal or the court in order to protect the rights
of the aggrieved party. In some particular instances, the interim relief may involve directives to some
third parties also. Interim relief is like an urgent remedy granted in exceptional circumstances.

15. Arbitration Tribunal
◦ "Arbitral tribunal" means a sole arbitrator or a panel of arbitrators. An
arbitral tribunal is a panel of one or more adjudicators which is
convened and sits to resolve a dispute by way of arbitration. The
tribunal may consist of a sole arbitrator, or there may be two or more
arbitrators, which might include either a chairman or an umpire.

16. Appointment of arbitrators
◦ A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
◦ The parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
◦ Failing any agreement in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two
appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
◦ A party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party or The
two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, The
appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
◦ A decision on a matter entrusted by the Chief Justice or the person or institution designated by him is final.
◦ In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or
the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the
parties where the parties belong to different nationalities.

17. Grounds for challenge
◦ When a person is approached in connection with his possible appointment as an arbitrator, he shall
disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or
impartiality.
◦ An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without
delay, disclose to the parties in writing any circumstances unless they have already been informed of
them by him.
◦ An arbitrator may be challenged only if-
◦ (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, (b) He
does not possess the qualifications agreed to by the parties.
◦ (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated,
only for reasons of which he becomes aware after the appointment has been made.

18. JURISDICTION OF ARBITRAL TRIBUNALS
◦ It would not be appropriate to say that an arbitral tribunal has statutory jurisdiction. The tribunal
determines its jurisdiction to adjust the needs of the parties. The arbitral agreement mainly determines
the ambit of jurisdiction of the arbitral tribunal. The focal of party-autonomy declares that when the two
parties have the remedy to resolve their disputes on their own then they have the remedy to show this
right to any third party, to determine overt that squabble.
◦ Thus it is very essential to contemplate a well-drafted agreement because it results in giving complete
strength to the tribunal to determine matters related to the jurisdiction.
◦ The Arbitration and Conciliation Act, 1996 also specifically mentions the jurisdiction to determine explicit
matters in Section 17 of the Act.
1. Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order
a party to take any interim measure of protection as the arbitral tribunal may consider necessary
in respect of the subject matter of the dispute.
2. The arbitral tribunal may require a party to provide appropriate security in connection with a
measure ordered under sub-section (1).

19. POWERS OF AN ARBITRATOR
◦ The arbitrator is the one who will give the arbitral award, therefore, The Arbitration and Conciliation
Act, 1996 provides several powers to him in order to decide the award.
1. The arbitrator has a power to administer an oath to the parties. It is necessary for him to act
as a quasi-judicial authority.
2. Power to take interim measures
3. An arbitrator has an power to proceed to ex-parte.
4. Power to appoint an expert
5. Power to make awards

20. DUTIES OF AN ARBITRATOR
1. To be independent and impartial
2. To fix a time and place for arbitration, which is convenient to the parties
3. Duty to disclose
4. Duty to efficiently resolve the dispute
5. Duty to determine the rules for the procedure

21. Procedure and court assistance
◦ There may be situations when parties do not cooperate with the tribunal during the evidence stage.
For example, they may not produce a document, or a witness may not appear before the Tribunal
despite being summoned multiple times.
◦ Although the Tribunal is not bound to follow the rules of the Code of Civil Procedure and the
Evidence Act, there is no provision under the Arbitration and Conciliation Act that gives the tribunal
the power to compel production of documents and summon witnesses in the same way that a civil
court can. In contrast, there are several other bodies (not connected with arbitration) such as Lok
Adalat's or Internal Complaints Committees or regulatory bodies which have the power to compel
attendance of witnesses and production of documents.
◦ The arbitral tribunal has the power to issue orders to parties to call a witness or produce a
document, but where something is not directly in control of the parties, the tribunal cannot
compel its production or attendance of a witness. Hence, in such situations, for an arbitral
tribunal, assistance of the court may be necessary to obtain evidence.

22. Arbitration award
◦ An arbitration award is a judgement given by the arbitrator or an arbitration tribunal that
is considered to be binding and enforceable unlike other alternative dispute resolution i.e.,
mediation, negotiation and conciliation.
◦ An award is considered as an award of damages which may constitute payment of a sum of
money, declaration as to any matter to be determined in proceedings. It is quite clear that an
arbitration tribunal has similar powers as that of the court of law. Just like a judgement given by
the court, an arbitral award must:
1. Be in writing
2. Be signed by the arbitrator or Arbitration Tribunal
3. Give reasons for giving such an award
4. Mention date and place of arbitration

23. additional award
◦ An additional award is a type of award which is given after the principal award has been
delivered. Generally, it is considered as an award that contains all the corrections and
interpretations of the provisions provided in the principal award. But to acquire an
additional award one has to write to the tribunal requesting to schedule a further hearing.

24. Form and Contents of Arbitral Award
1. An arbitral award shall be made in writing and shall be
signed by the members of the arbitral tribunal.
2. For the purposes in arbitral proceedings with more than
one arbitrator, the signatures of the majority of all the
members of the arbitral tribunal shall be sufficient so long
as the reason for any omitted signature is stated.
3. The arbitral award shall state its date and the place of
arbitration and the award shall be deemed to have been
made at that place.
4. After the arbitral award is made, a signed copy shall be
delivered to each party.
5. The arbitral tribunal may, at any time during the arbitral
proceedings, make an interim arbitral award on any
matter with respect to which it may make a final arbitral
award.
6. Unless otherwise agreed by the parties, -
A. the costs of an arbitration shall be fixed by the arbitral
tribunal;
B. the arbitral tribunal shall specify -
I. the party entitled to costs,
II. the party who shall pay the costs,
III. the amount of costs or method of determining that
amount, and
IV. the manner in which the costs shall be paid.

25. Grounds for setting aside of an Arbitral Award
◦ Under the Arbitration and Conciliation Act 1996,
when two parties sign the arbitration agreement,
the agreement has a binding effect on both the
parties. Later on, when a dispute arises and the
parties opt for arbitration, in this case the award
provided by the appointed arbitrator will be
binding on both the parties.
◦ But there are instances when both the parties or
either of the party is not satisfied with the award,
in that case a recourse is also provided in the Act.
In such cases they have an option to address
there concerns. For this, Section 34 of the Act
provides certain grounds in which application for
setting aside of an award can be made and
further Section 37 provides for the provision of
appeal regarding certain orders.
◦ The following grounds are:
◦ Incapacity of a party.
◦ Unlawful agreement.
◦ No notice to the other party.
◦ Subject matter extent to the scope of the
arbitration agreement.
◦ Formation of Tribunal not as per the
agreement.
◦ Subject matter not under the arbitration law.
◦ Award in conflict with the public policy of
India.

26. Enforcement
◦ Enforcement is the proper execution of the process of ensuring compliance with laws, regulations,
rules, standards, and social norms.
◦ In India, an arbitral award is enforced in the same way as a court decree. This is in accordance with
the code of civil procedure, 1908.
◦ To enforce an arbitral award, the party must go to court. Arbitration allows the parties to avoid
national courts and have a private dispute resolution procedure.

27. Appeal against Arbitral award
◦ In India aggrieved party can appeal an arbitral award in a law court. The appeal can be filed under
section 96 of the civil procedure code, 1908. The award can also be declared void, set aside, or
cancelled under section 34 of arbitration and conciliation act 1996.
◦ The grounds for appeal are limited. The party must have a concrete reason to challenge the award in
court if the arbitration is binding, the party can appeal without a reasonable ground.
◦ To initiate an appeal, the party must file an appeal notice in the court within the 28 days of the award
being made. The appeal notice must include the ground for appeal and the relief sought. The party
must also serve a copy of the appeal notice on the other party.

28. Revision of arbitral award
◦ Section 33 of the arbitration act provides that a party, with notice to the other party, may within 30
days of receipt of the arbitral award (unless another time limit has been agreed by parties) request
the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any
other.

29. Enforcement of Foreign Awards
◦ To enforce a foreign award party has to produce arbitral award, agreement of arbitration to the
district court having jurisdiction over the subject matter of the award. The enforcement of award can
be refused by court only in cases specified in law. Otherwise, the foreign award is enforceable through
court as if it is a decree of the court. If the court declines to enforce the arbitral award, appeal can be
made to the court where appeal normally lies from the district court. No further appeal can be made
(except appeal to Supreme Court) . The courts can refuse to implement the award only on limited
grounds.

30. General procedure for enforcement of a foreign arbitral award:
◦ The party seeking enforcement of a foreign award needs to supply in the court (a) the arbitral award and (b)
the arbitration agreement.
◦ The party against whom enforcement is sought can object to the enforcement by submitting proof of one of
the grounds for refusal of enforcement.
◦ The court may on its own motion refuse enforcement for reasons of public policy.
◦ If the award is subject to an action for setting aside in the country in which, or under the law of which it is
made the foreign court before which enforcement of the award is sought may adjourn its decision on
enforcement.
◦ Finally, if a party seeking enforcement prefers to base its request for enforcement on the court’s domestic law
on enforcement of foreign awards or bilateral or other multilateral treaties in force in the country where it
seeks enforcement, it is allowed to do so by virtue of the so-called more-favourable-right.”

31. The foreign awards which can be enforced in India
◦ New York convention award - made after 11th October, 1960. New York convention awards are enforceable
in India. New York convention was drafted and kept in United Nations for signature of member countries on
21st December, 1958. The New York convention was excellently drafted by the United Nations and has been
ratified by more than 150 countries, comprising of major countries which participate in international trade
and economic transaction. The reach of the New York convention is much enlarged. Any arbitral award, in
any state, in contracting countries or otherwise is shielded under the New York convention.
◦ Procedure of Enforcement
◦ According to Article 3 of the convention, “Each Contracting State shall recognize arbitral awards as
binding and enforce them in accordance with the rules of procedure of the territory where the award is
relied upon, under the conditions laid down in the following articles. There shall not be imposed
substantially more onerous conditions or higher fees or charges on the recognition or enforcement of
arbitral awards to which this Convention applies than are imposed on the recognition or enforcement
of domestic arbitral awards”. This article clarifies the provisions which interrelate to the enforcement of
arbitral awards drooping under the convention. It encompasses the general duty for the contracting states
to consider convention awards as mandatory and to enforce them as per their guidelines of the procedure.

32. ◦ Geneva Convention Awards - Geneva convention awards contain four treaties and three
supplementary protocols that institute international law for humanitarian dealing in war. The single
expression Geneva convention usually signifies the pacts of 1949, which were negotiated after the
massacre of world war II. The Geneva Convention expansively defined the crucial rights of wartime
prisoners, instituted safeguards for the injured and sick, and instituted several protections for
the civilian around the war zone.
◦ Application of Geneva Convention Awards
◦ The Geneva convention comes into the picture at times of war and armed conflicts with the
government. Article 2 of the convention connotes the niceties of applicability.
◦ Relating to international armed conflicts, this article clarifies that the Geneva convention applies
to all cases of international conflict where at least one of the warring states have consented to
the conventions.
◦ The convention is imposed on all cases of avowed war among signatory states. This is the
inventive sense of applicability, which precludes the 1949 version.
◦ The convention is imposed on all cases of armed dispute among two or more signatory states,
even in the nonattendance of a declaration of war. This dialectal was summed up in 1949 to
accommodate circumstances that have all the features of war without the presence of formal
announcements of war, such as a police action.

33. Negotiation
◦ A negotiation is a strategic discussion that resolves an issue in a way that both parties find
acceptable. In a negotiation, each party tries to persuade the other to agree with his or her point of
view. By negotiating, all involved parties try to avoid arguing but agree to reach some form of
compromise.
◦ Negotiations involve some give and take, which means one party will always come out on top of the
negotiation. The other, though, must concede—even if that concession is nominal.
◦ Negotiation is a dialogue between two parties to resolve conflicts or issues so that both parties
find the solution acceptable. Usually, it is a compromise involving give and take. Negotiation results
when each party compromises to resolve a conflict for everyone's benefits.

34. Difference between arbitration and conciliation
Arbitration Conciliation
It means submission of a dispute to a third person,
by parties, for decision by a 3rd party.
It means settling a dispute without litigation.
Arbitration or arbitral tribunal decides over a
dispute
A conciliator may settle the dispute.
The arbitrator finally decides over the dispute
referred to him.
The conciliator only persuades the parties to reach
an agreement.
The law of arbitration is existed in Act of 1940. Conciliation is introduced in the Act of 1996.
Arbitral tribunal must consist of odd no. It may have an even no.
A dispute may or may not exist for an existing
arbitration agreement.
No conciliation exists before the dispute.

35. JUDICIAL PROCESS ARBITRATION MEDIATION
Judicial process is an adjustable
process where a third party (judge/
other authority) decides the outcome.
Arbitration is a quasi – judicial
adjudicatory process where the
arbitrators appointed by the court or
by the parties decide the dispute
between the parties.
Mediation is a negotiation process and
not an adjudicatory process. The
mediator facilitates the process. Parties
participate directly in the resolution of
their dispute and decide the terms of
settlement.
Procedure and decision are governed,
restricted, and controlled by the
provisions of the relevant statutes.
Procedure and decision are governed,
restricted and controlled by the
provisions of Arbitration & Conciliation
Act, 1996
Procedure and settlement are not
governed or restricted by statutory
provisions there by allowing freedom
and flexibility.
The decisions is binding on the parties. The award in an arbitration is binding
on the parties.
A binding settlement is reach only if
parties arrive at a mutually acceptable
agreement.
Adversarial in nature, as focus on past
events and determination of rights and
liabilities of parties.
Adversarial in nature as focus is on
determination of rights and liabilities of
of parties.
Collaborative in nature as focus is on
the present and the future and
resolution of disputes is by mutual
agreement of parties irrespective of
rights and liabilities.
Difference between judicial process, arbitration and mediation

36. JUDICIAL PROCESS ARBITRATION MEDIATION
Personal appearance or active
participation of parties is not always
required.
Personal appearance or active
participation of parties is not always
required.
Personal appearance or active
participation of the parties are
required.
A formal proceeding held in public and
follows strict procedural stage.
A formal proceedings is held in private
following strict procedural stages.
A non judicial and informal proceeding
held in private with flexible procedural
stages.
Decision is appealable. Award is subjected to challenge
specified grounds.
Decree/order in terms of the
settlement is final and is not
appealable.
No opportunity for parties to
communicate directly with each other.
No opportunity for the parties to
communicate directly with each other.
Optimal opportunity for parties to
communicate directly with each other
in the presence of mediator.
Involves payment of court fees. Does not involve payment of court
fees.
In case of settlement, in a court
annexed mediation the court fee
already paid is refundable as per the
rules.

37. confidentiality agreement
◦ Confidentiality has not been specifically defined anywhere in the Arbitration Act. Oxford Dictionary
defines the word “Confidentiality” as “a situation in which you expect someone to keep information
secret”.
◦ A confidentiality agreement is a legal agreement that binds one or more parties to non-disclosure
of confidential or proprietary information. A confidentiality agreement is often used in situations
wherein sensitive corporate information or proprietary knowledge is not to be made available to
the general public or to competitors. A non-disclosure agreement (NDA) is a particular type of
confidentiality agreement.
◦ A confidentiality agreement may be contrasted with a waiver of confidentiality, whereby parties involved
give up guarantees of confidentiality.

38. Resort to arbitral or judicial proceedings
◦ Section 77 of Arbitration and Conciliation Act of 1996 discusses resort to arbitral and judicial
proceedings. It states that parties cannot initiate arbitral or judicial proceedings for a dispute while
conciliation proceedings are ongoing. However, the parties can initiate these proceedings if they are
necessary for preserving their rights.

39. Dispute Resolution Board
◦ A dispute resolution board is a group of impartial professionals who help resolve issues and reduce the
impact of disputes during construction projects. Dispute Resolution Board is not the absolute cure for all
disputes in the construction industry. Currently, DRBs are usually only used for massive projects. They have been
particularly helpful for highway and other large infrastructure projects, as well as other projects that combine public
and private resources — a project structure that’s commonly known as a P3 project.
◦ The DRB is the creature of the contract. Usually, the contract will provides for three members, two technical and one
legal, usually the chairman. This formulation allows for technical disputes to be fully understood and resolved
without the need for external advice, and similarly disputes involving or including legal issues being capable of
resolution without external advice. This is for the board to be able to deal with any dispute that arises. Clearly each
board member needs to be a respected member of there own profession, with qualifications and experience to
match the project in hand.
◦ Essentially, the DRB can be likened to a project management tool that is used to ensure that the project remains on
track influencing the parties to the project to carry out there contractual obligations properly. The 3 member DRB
will visit the project regularly and deals with any difficulties that have arisen.

40. Lok Adalat
◦ Lok Adalat is one of the alternative dispute redressal mechanisms, it is a forum where disputes/cases
pending in the court of law or at pre-litigation stage are settled/ compromised amicably. Lok Adalat's
have been given statutory status under the Legal Services Authorities Act, 1987. Under the said Act, the
award (decision) made by the Lok Adalat's is deemed to be a decree of a civil court and is final and binding on all
parties and no appeal against such an award lies before any court of law. If the parties are not satisfied with the
award of the Lok Adalat though there is no provision for an appeal against such an award, but they are free to
initiate litigation by approaching the court of appropriate jurisdiction by filing a case by following the required
procedure, in exercise of their right to litigate.
◦ There is no court fee payable when a matter is filed in a Lok Adalat. If a matter pending in the court of law
is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the
complaints/petition is also refunded back to the parties. The persons deciding the cases in the Lok Adalat's
are called the Members of the Lok Adalat's, they have the role of statutory conciliators only and do not have
any judicial role; therefore they can only persuade the parties to come to a conclusion for settling the dispute
outside the court in the Lok Adalat and shall not pressurize or coerce any of the parties to compromise or
settle cases or matters either directly or indirectly.

41. Thankyou