Arbitration and ConciliationAct, 1996• Civil Procedure Code, 1908UNCITRAL• New York Convention, 1958
Why?• The Act was enacted in 1996to fall in line with UNCITRALInternational CommercialArbitration lawsWhat?• Deals with domestic arbitrationand enforcement of foreignawards
• To minimise the supervisory role of courts in thearbitral process. The words “arbitral process”extends to the proceedings arising out of anarbitral award, in any civil court, under thevarious provisions of the Act of 1996 also. If thisinterpretation is accepted, then the role of thecivil courts while dealing with any matter,arising out of the Act of 1996, shall be guidedand controlled by the Arbitration andConciliation Act of 1996 itself, as the ArbitrationAct is “a self-contained code” in itself and oneneed not go beyond the Act for any proceduralaspects to be followed in any civil courts.Clause(v)
S. 9• Interim Measuresby the court• A party may,before or duringarbitralproceedings or atany time after themaking of thearbitral award butbefore it isenforced inaccordance withsection 36S.16• Absolute powerto rule onjurisdiction tothe Tribunal.• Existence orvalidity ofarbitrationagreements alsoto be decidedonly by Tribunal.S.34 r/w 37• Appealon limitedquestionof factand law
S. 26• Appointcommissioners andexperts toadjudicatedisputes.S. 19• No arbitraltribunal shall bebound by theCPC, 1908 orthe EvidenceAct, 1872
“The applicability of the Code of Civil Procedure, 1908.—Subject to what is provided for, in the Arbitration andConciliation Act and these rules, the provisions of the Codeof Civil Procedure and the Karnataka Civil Rules of Practice,may be applied to the proceedings under the Act to theextent considered necessary or appropriate by the Court, orjudicial authority.”Fear that decisions may be challenged in the higher courts, for not complyingwith the provisions of CPC etc. This attitude of the parties and courts, it is felt,is contrary to the very object of the law of arbitration and inconsistent with themain objective, which is to minimise the supervisory role of court in the arbitralprocess.
ITIv.SiemensNetworkThe Act of 1996 hasnot expressly barredthe application ofprovisions of CPC, noinference can bedrawn that CPC is notapplicable to theproceedings arisingout of the Act in thecivil courtsPushpaMv.AdmiralRadhakrishnanTahlaniThe exclusion can alsobe a matter of directinference from the lawitself. No doubt, thisdecision cannot standagainst the decision ofthe Hon’ble SupremeCourt of India in ITILtd. caseKonkanRlyCorporationv.RaniConstructionsAny rules framed bythe Chief Justice,including the ChiefJustice of India, underthe Act, which areinconsistent with orbeyond the terms ofthe statute, have beenheld to be bad andsuggested to beamended. In this view,Rule 12, framed by theHon’ble High Court ofKarnataka, may needrevision
Even when the reference for Arbitration has been made undersection 89(2) the provisions of the Arbitration and Conciliation Act,1996 shall apply as if the proceedings for Arbitration or Conciliationwere referred for settlement under the provisions of Section 8 of theAct. The 1996 Act governs a case where arbitration is agreed uponbefore or pending a suit by all the parties. It however, doesn’tcontemplate a situation as in s.89 where the Court asks the partiesto choose one or other ADRs. The Act would apply only from thestage after reference.