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Arbitration And Conciliation Mod7


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Arbitration And Conciliation Mod7

  1. 1. Arbitration and Conciliation Module VI
  2. 2. Law of Arbitration <ul><li>An ADR technique </li></ul><ul><li>Contained in Arbitration Act, 1940 </li></ul><ul><li>The Arbitration (Protocol and Convention) Act, 1937 and; </li></ul><ul><li>The Foreign Awards (Recognition and Enforcement) Act, 1961. </li></ul>
  3. 3. Arbitration and Conciliation Act, 1996 <ul><li>Repealed previous enactments; </li></ul><ul><li>Conciliation proceedings have been given legal recognition for the first time. </li></ul><ul><li>Based on UNCITRAL model law </li></ul>
  4. 4. Objectives of A & C Act <ul><li>consolidate and amend the law relating to domestic arbitration; </li></ul><ul><li>international commercial arbitration and ; </li></ul><ul><li>enforcement of foreign arbitral awards ; </li></ul><ul><li>Adoption of UNCITRAL Model law for uniform ADR system ; </li></ul>
  5. 5. Features of A & C Act <ul><li>Autonomy of parties in conducting the arbitral proceedings; </li></ul><ul><li>Supervisory role of courts minimized; </li></ul><ul><li>Arbitrators can be appointed by Chief Justices; </li></ul><ul><li>Arbitral Award must contain reasons; </li></ul>
  6. 6. What is Arbitration? <ul><li>A alternative dispute resolution method ; </li></ul><ul><li>an independent, neutral third person (&quot;arbitrator&quot;) is appointed to hear and consider the merits of the dispute and renders a final and binding decision called an award. </li></ul><ul><li>The process is similar to the litigation process as it involves adjudication,; </li></ul><ul><li>The parties choose their arbitrator and the manner in which the arbitration will proceed. </li></ul><ul><li>The decision of the arbitrator is known as an &quot;award.&quot; </li></ul>
  7. 7. Matters that cannot be referred to Arbitration <ul><li>Matrimonial matters, like divorce or restitution of conjugal rights; </li></ul><ul><li>matters relating to guardianship of a minor or other person under disability; </li></ul><ul><li>testamentary matters, for example, questions about the validity of a will; </li></ul><ul><li>insolvency matters, such as adjudication of a person as an insolvent; </li></ul><ul><li>criminal proceedings; </li></ul><ul><li>questions relating to charities or charitable trusts; </li></ul><ul><li>dissolution or winding up of a company. </li></ul>
  8. 8. Arbitration Agreement <ul><li>Must be in writing; </li></ul><ul><li>Form is not specified; </li></ul><ul><li>Can be a clause in ‘contract agreement’ </li></ul><ul><li>it can be gathered from several documents or from correspondence consisting of a number of letters, fax messages, telegrams or telex messages. </li></ul>
  9. 9. Domestic Arbitration <ul><li>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 </li></ul><ul><li>when the cause of action for the dispute has arisen wholly in India or where the parties are otherwise subject to Indian jurisdiction. </li></ul>
  10. 10. International Arbitration <ul><li>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. </li></ul><ul><li>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. </li></ul>
  11. 11. Foreign Arbitration <ul><li>an arbitration conducted in a place outside India, where the resulting award is sought to be enforced as a &quot;foreign award&quot;. </li></ul>
  12. 12. Ad Hoc Arbitration <ul><li>arbitration agreed to and arranged by the parties themselves without recourse to an Institution. </li></ul><ul><li>The proceedings are conducted by the arbitrator (s) as per the agreement between the 'parties' or with concurrence of the parties. </li></ul><ul><li>It can be domestic, international or foreign arbitration. </li></ul>
  13. 13. Making of Arbitral Award <ul><li>Notice </li></ul><ul><li>Statements of both the parties must be considered; </li></ul><ul><li>Expert assistance may be obtained; </li></ul><ul><li>Arbitral Tribunal has certain powers of civil court; </li></ul><ul><li>Arbiter has to make the ‘AWARD’ after complying with PNJ. </li></ul>
  14. 14. Recourse against Arbitral Award <ul><li>a party was under some incapacity, </li></ul><ul><li>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; </li></ul><ul><li>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; </li></ul>
  15. 15. Recourse against Arbitral Award <ul><li>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 </li></ul><ul><li>the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force; </li></ul><ul><li>the arbitral award is in conflict with the public policy of India </li></ul>
  16. 16. Conciliation <ul><li>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. </li></ul><ul><li>Decision is known as “Settlement Agreement” </li></ul>
  17. 17. End of Module VI